ANGELO CORCEONE Petitioner VERSUS

NUMBER 136,741 DIVISION B THE FAMILY COURT PARISH OF EAST BATON ROUGE

KIMBERLY CORCEONE Defendant

STATE OF LOUISIANA

DILATORY EXCEPTION OF VAGUENESS AND AMBIGUITY, OR IN THE ALTERNATIVE MOTION TO STRIKE, PEREMPTORY EXCEPTION OF NO RIGHT OF ACTION, AND PEREMPTORYEXCEPTION OF NO CAUSE OF ACTION COMES NOW, Angelo Corceone, appearing herein in propria persona, solely for the purpose of these exceptions, sought to be made Defendant in the above captioned matter, who takes exception to Petitioner, Kimberly Corceones Petition and respectfully represent the following to-wit: 1. DILATORY EXCEPTION OF VAGUENESS AND AMBIGUITY OF THE PETITION. 1.

Petitioner Kimberly Corceones Petition is vague and ambiguous, Petitioner uses openended allegations which fail to adequately inform the Defendant of the nature of the facts, such that the requirements of Article 891 have not been met and the Court should sustain an exception of vagueness and ambiguity due to the following respects:
A.

The allegation and claims in the Petition does not place the Defendant on notice of

the nature of the facts sought to be proved.

Plaintiffs claims in its Petition against Defendant do not allow Defendant to

properly prepare his defense.

Plaintiffs Petition makes generalized conclusions as well as certain legal

conclusions, with no basis in fact and fails to provide evidence linking Defendant to specific acts alleged in the Petition. 2. For the foregoing reasons, this Dilatory Exception of Vagueness should be maintained and Petitioner should be ordered to amend her Petition to set forth the exact nature of the facts Petitioner seeks to prove against the Defendant Angelo Corceone. Petitioner should further be ordered to amend her Petition to identify with specificity the material facts of and transactions or occurrence(s) that is the subject matter of this litigation. In the event of Default, Petitioners Page 1 of 6

Petition should be dismissed with Prejudice. 2. MOTION TO STRIKE

In the alternative, if this Court believes that a Motion to Strike under LSA-C.C.P. Art. 964 is the proper procedural vehicle for the Defendant, Angelo Corceone to assert that Plaintiff cannot maintain a claim for spousal support, and for sanctions, Defendant, Angelo Corceone than asserts a Motion to Strike requesting the Court to strike the Petitioners claim for spousal support and for sanctions as asserted in Petitioner, Kimberly Corceones petition. 3. Petitioner, Kimberly Corceone has previously judicially confessed in responsive pleadings before this court that she has been at fault for the demise and break-up of the marriage between the parties. It is well settled in our jurisprudence that if the party seeking spousal support is not free from fault in the breakup of the marriage said party cannot be awarded spousal support. 4. Petitioner, Kimberly Corceone avers that she had to hire counsel to defend against frivolous filings by the Defendant and has requested sanctions as stated in the Plaintiffs prayer in her petition. A cursory review of the minute entry(s) will show that Ms. Corceone chose of her own free will to hire private counsel despite the fact that this Honorable Court had appointed The Office of the Public Defender to represent her in the matter that Petitioner opines of and for which she seeks sanctions for. 5. Defendant submits that Petitioner, Kimberly Corceones Petition is fatality defective regarding said request for sanctions in that she has failed to allege sufficient and accurate facts to sustain said cause of action and same should be stricken, the pertinent provisions of LSA-C.C.P. Art. 964 provides as follows: The Court on motion of a partymay at any time and after a hearing order stricken from any pleading any insufficient demand. 6. For the above reasons and for the further reasons articulated and as shown in the attached memorandum of law, Defendants Motion to Strike, should be granted dismissing Plaintiff Kimberly Corceones claims spousal support and for sanctions as requested in her prayer before the court.
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3.

PEREMPTORY EXCEPTION OF NO RIGHT OF ACTION, AND PEREMPTORYEXCEPTION OF NO CAUSE OF ACTION

Defendant further raises the peremptory exception of no right and no cause of action pursuant to La.Code Civ.P. art. 927(4.) and (5). 7. Among the threshold requirements that must be satisfied before reaching an entitlement to spousal support, Petitioner must establish that she is free from fault. This Honorable Court will clearly realize and as addressed in the facts set forth in the memorandum of law attached hereto, Petitioner cannot establish that she is free from fault. 8. Petitioner, Kimberly Corceone has previously judicially confessed in responsive pleadings before this court that she has been at fault for the demise of the marriage between the parties such that she has no right to an action for spousal support. 9. After a cursory review of Petitioners Petition it would seem that Petitioner seeks to amend the Stipulated Judgment granting custody of the minor children, Valensia Corceone and Gabriella Corceone to your Defendant. As this Honorable Court is well aware, a final judgment may be amended only to alter the phraseology of the judgment, as long as the substance is not affected, or to correct errors in calculation. A judgment, therefore, may be amended by the trial court when the amendment takes nothing from or adds nothing to the original judgment. This court simply cannot merely amend the stipulated custody judgment as it seems Petitioner is asking, such that Petitioner has failed to state a salient cause of action. 10. If alternatively Petitioner seeks rather to annul or vacate the judgment, Petitioner has failed to allege sufficient allegations of fact as to fraud and ill practices to do so. Such that Petitioner has failed to state a salient cause of action. 11. Petitioner should either ordered by this court to amend her petition to cure the defect(s) within a specified timeframe as this Honorable Court deems reasonable or in the alternative this Honorable Court should order that the open ended allegation within her Petition should likewise be stricken from the pleading.
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12. Alternatively, if the Petitioner rather seeks to change custody of the minor children, her Petition fails to assert a cause of action for same within her Petition. Petitioner fails to allege sufficiently that there has been a change in circumstances materially affecting the welfare of the child since the original decree rendered by this Honorable Court. 13. Petitioner clearly fails to meet this burden with the conclusory allegations set forth in her Petition before the court. It is evident that most if not all the assertions made by the Petitioner regarding the welfare of the minor children amount to nothing more than factual conclusion(s) such the Petition does not make allegations sufficient to meet a burden stating a material change in circumstances. 14. Defendant avers that Petitioner should either ordered by this court to amend her petition to cure the defect(s) within a specified timeframe as this Honorable Court deems reasonable or in the alternative this Honorable Court should order that the open ended allegation within her Petition should likewise be stricken from the pleading. 15. From a plain reading of Petitioners allegations within paragraphs number 12, 13, and 14, Petitioner, it would seem is asking that the Defendant be sanctioned by this Honorable Court for the frivolous filing of contempt charges in August of 2011 and for contemptuous misuse of this Honorable Courts time. 16. A cursory review of the filing(s) within the record will show that the Petition is fatality defective regarding said request for sanctions. Petitioner has failed to allege sufficient and accurate facts to sustain said cause of action. 17. Defendant would submit to this court that where there is even the slightest justification for the assertion of a legal right, sanctions are not warranted. Since LSA-C.C.P. art. 863 is intended to be used only in exceptional circumstances; when there is even the slightest justification for the assertion of a legal right, sanctions are not warranted.
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18. Defendant avers that Petitioner should either ordered by this court to amend her petition to cure the defect(s) regarding her attempted claim for sanctions within a specified timeframe as this Honorable Court deems reasonable or in the alternative this Honorable Court should order that the open ended allegations within her Petition requesting sanctions should likewise be stricken from the pleading. 1Wherefore Angelo Corceone, made Defendant herein asserts that the Plaintiff Kimberly Corceone within her Petition fails to disclose a cause of action and/or a right of action or any claims and facts for which it asserts and petitioner further prays that; 1. All exceptions be heard prior to any further proceeding for the claims asserted

herein by Petitioner Kimberly Corceone. 2. The exceptions be sustained and that a judgment be rendered, dismissing the

Petitioners claim(s) against Defendant Angelo Corceone and taxing all costs against the Petitioner Kimberly Corceone. 3. The exceptions of Dilatory Exception of Vagueness and Ambiguity be sustained

and that a judgment be rendered ordering that Petitioner Kimberly Corceone amend her petition within a specified timeframe as this Honorable Court deems reasonable or in the event of default, Petitioners Petition should be dismissed with prejudice. 4. The exceptions of Peremptory exception of No Cause of Action be sustained and

that a judgment be rendered ordering that Petitioner Kimberly Corceone amend her petition within a specified timeframe as this Honorable Court deems reasonable or in the event of default, Petitioners Petition should be dismissed with prejudice. 4. That the exception(s) for no right of action for spousal support be sustained and that

a judgment be rendered herein dismissing with prejudice or, in the alternative, stricken from the Petition of Petitioner Kimberly Corceone. RESPECTFULLY SUBMITTED, ________________________ Angelo A. Corceone Pro Se 4161 Southpark Baton Rouge, Louisiana 70816 Telephone: 225-907-5534 Facsimile: 805-669-3235 Email: [email protected]
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Please Serve Petitioner: Kimberly Corceone Through Her Counsel of Record Keelus R. Miles Miles Law firm, LLC 251 Florida St. Suite #311 Baton Rouge, LA 70801 Telephone (225) 387-0880 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have served a copy of the foregoing pleading on all counsel to this proceeding by facsimile transmission, hand delivery, or by placing same in the United States mail, first class, postage prepaid, this _____day of March, 2012. ____________________________ Angelo A. Corceone-Pro Se

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