“I will sue you!” is a common phrase meant to inform someone that you will seek legal recourse in order to settle your dispute in court. In the alternative, “I will meet you ‘on the field of battle where I will rend [your] souls from [your] corporal bodies’” is not a common phrase, nor is it a means by which people typically settle their disputes. However, one Kansas man was mad enough to invoke an age-old form of dispute resolution against his former wife and her attorney in a post-divorce case, which was, of course, a motion for trial by combat.
On January 2, 2020, David Ostrom, 40, of Paola, Kansas, filed a motion for trial by combat with the Iowa District Court in Shelby County alleging, in part, that his ex-wife, Bridgette Ostrom, 38, “destroyed (him) legally.” Such legal destruction being resolved by the possibility of death would seem hardly reasonable to the common layman. However, “to this day, trial by combat has never been explicitly banned or restricted as a right in these United States,” Mr. Ostrom would go on to say that trial by combat was used “as recently as 1818 in British Court.” Not surprisingly, shortly after filing his motion, Mr. Ostrom was quickly faced Ms. Ostrom’s Motion to Suspend Visitation and Motion for Psychological Evaluation.
However, apparently, this wasn’t the first request for trial by combat that someone has made throughout the 21st century, as Mr. Ostrom was aware of and which formed the basis of his intent. In 2015, a New York based attorney demanded a fight to the death, or, in the alternative, his client’s case dismissed after allegations of misconduct on his part surfaced in a case involving the misappropriation of certain funds.
“The allegations made by plaintiffs, aided and abetted by their counsel, border upon the criminal. As such, the undersigned (attorney) respectfully requests that the court permit the undersigned to dispatch plaintiffs and their counsel to the Divine Providence of the Maker for Him to exact His divine judgment once the undersigned has released the souls of the plaintiffs and their counsel from their corporeal bodies, personally and or by way of a champion.” Giving some merit to the attorney’s argument, a New York Supreme Court Justice Philip Minardo apparently acknowledged that duels, specifically, had not been abolished in the state or in the county.
Ultimately, a response was necessary to file against Mr. Ostrom’s motion, the basis of which was clear from Ms. Ostrom’s counsel’s perspective, life is more favorable than death, and so Ms. Ostrom’s counsel argued that because a duel could end in death, such ramifications probably outweigh those of the custody issues that were pending before the court. “It should be noted that just because the U.S. and Iowa constitutions do not specifically prohibit battling another person with a deadly katana sword [referencing Mr. Ostrom preferred weapon of choice], it does prohibit a court sitting in equity from ordering same,” Ms. Ostrom’s counsel argued. The court eventually ordered the parties to mediation, seemingly a less formidable way of dealing with their disputes that was most likely not going to end in death.
Here at Kollias, P.C., we do not advocate that parties file motions for trial by combat to settle child related disputes. While we acknowledge the fact that trial by combat is apparently not prohibited from our constitutions, we believe that this type of motion will surely be unsuccessful due to a number of different legal reasons, not the least of which is that we live in a very different culture than that of Great Britain circa 1818.
First, in any divorce or parentage matter that requires the setting or modification of a parenting time schedule or allocation of parental responsibility, the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”), states, in pertinent part that a court shall conduct a trial or hearing to determine a plan which maximizes the child’s relationship and access to both parents and shall ensure that the access and the overall plan are in the best interests of the child. This interpretation of the plain language of this statute would lead any reasonable person to believe that the court must consider maximizing access between the parties and their children while also assessing the best interest of said children. Ordering the death of a parent via trial by combat surely fails to follow the intentions of the statute and our legislature.
Second, in accordance with the IMDMA, the court shall allocate parenting time and shall presume both parents are fit to have parenting time. Only when a court finds that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health, will the court restrict parenting time. Death by combat is not enumerated among the statutory remedies, nor would one expect a court to consider trial by combat as a way to ensure a child’s safety or welfare.
If you are dealing with a partner threatening deadly action via trial by combat or otherwise, please contact the attorneys at Kollias. P.C. for further information on how to protect yourself and your children.