KANSAS: Johnston v. Johnston and their high-carat “blood diamond” divorce Part II

 If you have not read Part I to this post, you may want to just to get some context. This is a story of high intrigue coming out of the farmlands of Kansas (which makes it even more fascinating!).
Just a quick summary: A young Kansan couple Chris and Karen Johnston, meet, marry, buy a diamond mine in Africa, travel around the globe in furtherance of their business, have a son, make tons of money and live the posh life. Then get divorced. Husband brings a divorce action in Namibia and the wife brings her own action in Kansas. The husband, who physically resides in Namibia, questions whether Kansas even has jurisdiction over the divorce. Kansas feels it does because even if the husband is no longer a resident, the wife, who brought her own action in Kansas certainly is. And a divorce petition is normally held in the county in which the plaintiff resides (in some states it is where the defendant resides; or it is where the plaintiff chooses so long as the defendant does not object). And so, they divorce. At which point the wife walks away empty-handed because the husband claims he is broke and he also fails to pay child support for their son as ordered by the Kansas court.  The FBI gets involved, as does a detective in Kansas who, it turns out, is an ex-boyfriend of the wife’s and who she is currently living with even though they claim it’s strictly platonic. Are you with me so far?
Ok. So, Part II has to do with a lawsuit the husband brings against the detective-boyfriend/strictly-platonic-roomate-of-the-ex-wife for, ostensibly, false arrest, and 4th and 14th amendment violations; both sides also ask for sanctions against the other for among other things, bringing frivolous lawsuits. The detective moves for dismissal of the ex-husband’s cause of action and the court grants the dismissal and declines to sanction either side. In English, the court sided with the detective and told the husband to get a grip. 
One main reason the court declined to find a false arrest, or even constitutional violations in this situation, is that while Mr. Johnston claims that he “continued to pay child support” the arrest warrant was based on the fact that he failed to pay all  the child support ordered. So he was only partially compliant. Partial compliance to an order is not compliance to an order. So Mr. Johnston rightly could have been arrested according to the court’s reasoning and if the arrest had been completed (it was not and that is very relevant) there would be nothing “false” about it. We aptly agree.
It appears that Mr. Johnston also argued in his motion that Detective Stone had “included false and misleading information in the affidavit and failed to disclose any information concerning his relationship with Karen Johnston or his involvement in their divorce proceedings.” As we have pointed out, Detective Stone and the ex-Mrs. Johnston are reportedly shacking up in a posh little love nest in Kansas. They both claim it is strictly platonic, but Mr. Johnston felt that the detective had a duty to disclose his nexus and connection to the ex-Mrs. Johnston in his affidavit which accompanied the warrant for Mr. Johnston’s arrest. We agree with Mr. Johnston on this one and the court didn’t exactly disagree with him; however, the failure of Mr. Stone to disclose his relationship to Karen Johnston was not a controlling issue for the court, especially in light of the fact that the arrest itself didn’t ultimately happen – even though Mr. Johnston seemed particularly peeved that he was unable to attend a gem and mineral show in Arizona upon receiving wind that a warrant had been issued for his arrest. The Court:

Towards the end of January 2009, Mr. Johnston traveled to Tucson, Arizona for business. In particular, he was going to assist with a display for his company at an annual gem and mineral show. Detective Stone had caused the warrant to be forwarded to the Tucson Police Department. Thus, when Mr. Johnston arrived at the venue for the gem and mineral show on February 2, 2009, he was notified by an unidentified individual that the Tucson Police Department was processing a warrant for his arrest.  Mr. Johnston claims that he consequently could not set up the display for his company and had to miss the first day of the show, as he had to stay outside of the Tucson city limits for several days to avoid arrest.

It seems Mr. Johnston also had a beef that involved the 4th Amendment protection against unreasonable seizures. His argument was that detective Stone had attempted to get law enforcement in Arizona to seize his diamonds and other gems as assets/marital property from his divorce dispute, per the affidavit of detective Stone. But, again, the court was largely unpersuaded that anything wrong had occurred since the arrest wasn’t actually made after the Tucson police realized that detective Stone may have an ulterior motive given his close, intimate relationship with the Ex Mrs. Johnston.
That Mr. Johnston felt he had “suffered damages” was, in the final analysis, irrelevant  not enough to convince the court that detective Stone should be sanctioned or that he had engaged in any wrong-doing for issuing the arrest warrant for criminal failure to pay child support. The Court basically concluded that the fact that Mr. Johnston’s payments were only partial, were enough to defeat his argument that he was falsely arrested, or even that there had been “malicious prosecution” or “abuse of process.” Rather, the court found that even if the arrest had been made, there would have been “probably cause” that Mr. Johnston had failed to pay child support as ordered by the court and as asserted in detective Stone’s warrant. But the fact that the arrest never happened just killed Mr. Johnston’s argument completely. The Court:

Here, Mr. Johnston was not arrested and thus has no Fourth Amendment claim for an unreasonable seizure. He does allege, however, that the arrest warrant was issued based on a false and misleading affidavit from Detective Stone. But that allegation alone does not rise to the level of a constitutional violation. “Arrest warrant affiants violate the Fourth Amendment when they knowingly . . . or with reckless disregard for the truth, include false statements in the affidavit . . . or knowingly or recklessly omit from an arrest affidavit information which, if included, would have vitiated probable cause.” ….Here, without a Fourth Amendment seizure or a due process violation after an arrest, Mr. Johnston’s allegations of a misleading affidavit or an improper purpose behind the affidavit cannot serve as the basis for a § 1983 claim.

We would tend to agree with the court on this ruling. It is illogical, almost, for Mr. Johnston to have brought this motion for false arrest and malicious prosecution and abuse of process (or whatever he brought if for, it seems his motion was never clear on what it was exactly he was arguing) when he wasn’t actually arrested. And even assuming he had been arrested, his case would still have been weak because there was probably cause that he had “criminally failed to pay child support” pursuant to Kansas law –because, again, partial payment of child support does not count. What he should have done if he couldn’t afford to make the payments ordered, was to make a motion for a downward modification of the support order, not take it upon himself to assume the authority to pay what he felt was appropriate.
Well, that’s it for part II. Part III coming soon. Stay tuned.
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