​Petition for Child Support Modification Motion to ​Dismiss

​​​Reading below, you'll see how Marty and Mr. X try to force me to mediation. 

Funny how months and months after trying, when they saw a petition that had sticking power, they resorted to trying to push it out via mediation.  

​As dumb luck would have it, early on in the process, I had sent an email requesting mediation (for custody)​.  

They didn't respond to this email and so, their non-responsiveness, in the Judge's own words, "Forced [me] to litigate."

While you read Marty's Motion to Dismiss, notice that he ​didn't address the "Concealed Income" Count.  

Unfortunately, the Judge gave him more time, even though he addressed this count after ​the 28-day response window.  

Reading below, you'll see how Marty and Mr. X try to force me to mediation.  Funny how months and months after trying, when they saw a petition that had sticking power, they resorted to trying to push it out via mediation.  However, if you recall, I had sent an email requesting mediation (for custody) in April by total fluke.  Their non-responsiveness, in the Judge's own words, "Forced [me] to litigate."
Additionally, Marty didn't address the Concealed Income Count.  Unfortunately, the Judge gave him more time, even though Marty totally missed his 28-day response window.  

Judgement for the Dissolution of Marriage

IN THE CIRCUIT COURT OF XXXXXXXXX COUNTY,  XXXXXXXXX COUNTY DEPARTMENT, DOMESTIC RELATIONS DIVISION

MOTION TO DISMISS AMENDED PETITION FOR SUPPORT

XXXXXXXXX, by attorney XXXXXXXXX, moves the court to strike and dismiss Counts I through III of the Amended Petition for Modification of Child Support based on XXXXXXXXX 's refusal and failure to comply with the provisions of the Joint Parenting Agreement, which was incorporated into the Judgment for Dissolution of Marriage in this matter.  This motion is brought pursuant to the provisions of 735 ILCS 5/2-619(4) and/or (9). In support of this motion, the following is alleged:

1.  Paragraph 5 of the Joint Parenting Agreement (JPA) signed by the parties and ratified by the court on or about March 3, 2009, provided that the parties "shall jointly discuss and jointly determine major decisions concerning XXXXXXXXX, including but not limited to (a) education, (b) choice of attendance at after-school activities, transportation to and from school, extracurricular activities, religious services and child care providers, (c) medical care and choice of physicians, dentists and the like (and all other significant questions relating to the health, welfare and education of the minor child except in cases of emergency".

2.  Paragraph 8 of the JPA provides that "if the parties are unable to reach an agreement regarding a medical decision for XXXXXXXXX, they shall seek a second opinion.  If, after obtaining a second opinion the parties cannot agree as to a decision for XXXXXXXXX, or in the event of a conflict over any other aspect of the Joint Parenting Agreement, the parties agree to confer with a mutually agreed upon mediator before instituting litigation to settle such conflicts... In the event that they cannot agree upon a mediator, they shall use a qualified by the XXXXXXXXX Mediation Counsel.  If mediation is unsuccessful, the costs of the mediator may be included in a petition for fees and costs in connection with any enforcement or modification proceeding..."

3.  Paragraph 9 of the JPA provided that "in the event the parties do not agree to a vital decision regarding the welfare of the minor child and mediation is unsuccessful, the Circuit Court of XXXXXXXXX County, XXXXXXXXX shall retain continuing jurisdiction to adjudicate any disputed issue." See copy of JPA attached as Exhibit A.

4.  XXXXXXXXX and XXXXXXXXX have had several disagreements concerning the handling of XXXXXXXXX healthcare, education, and extracurricular activities.  On many occasions, XXXXXXXXX has made unilateral decisions concerning the minor child's education, health and general welfare without consulting XXXXXXXXX as required by the plain provisions of the JPA.

5.  XXXXXXXXX does not approve of the educational, medical and general welfare decisions, which XXXXXXXXX has made concerning the minor child, and said decisions were made without XXXXXXXXX 's knowledge and/or consent.

6.  The JPA is a contractual document between parties, which has been approved by the court and incorporated into the Judgment for Dissolution of Marriage.  The JPA provides that any disputes between the parents concerning the health, education and welfare of the minor child must be submitted to mediation prior to submission of the issue to the court.

7.  XXXXXXXXX 's petition which requests relief and increased support from XXXXXXXXX concerning matters of health, education and welfare, i.e.. The matters contained in Counts I through III of her Amended Petition, must be stricken because XXXXXXXXX has failed to submit these issues to mediation prior to filing a petition with this court as mandated by the JPA and the Judgment for Dissolution of Marriage.

8.  735 ILCS 5/2/619(4) provides that a defendant may file a motion for dismissal of an action if the cause of action is a barred by a prior judgment.  The judgment heretofore entered in this case bars XXXXXXXXX's Amended Petition unless and until she presents the matters contained in Counts I Though III to mediation.

9.  735 ILCS 5/2/619(9) provides that a defendant may file a motion for dismissal of an action if the cause of action is barred by other affirmative matter avoiding the legal effect of or defeating the claim.  The judgment heretofore entered in this case and the JPA contract between the parties bars XXXXXXXXX's Amended Petition unless and until she presents the matters contained in Counts I through III to mediation.

Whereto fore, XXXXXXXXX moves the court to strike and dismiss Counts I through III of the Amended Petition for Modification of Child Support based on XXXXXXXXX's refusal and failure to comply with the provisions of the Joint Parenting Agreement which was incorporated into the Judgment for Dissolution of Marriage.

IN THE CIRCUIT COURT OF XXXXXXXXXXX COUNTY, XXXXXXXXX COUNTY DEPARTMENT, DOMESTIC RELATIONS DIVISION

AMENDED PETITION FOR MODIFICATION OF CHILD SUPPORT

NOW COMES Respondent, XXXXXXXXX, Pro Se, and pursuant to Sections 505 and 510 of the  XXXXXXXXX Marriage and Dissolution of Marriage Act ("IMDMA") 750ILCS 5/505 and 5/510, petitions this Honorable Court for modification of the Petitioner's, XXXXXXXXX, child support obligation established on April 8, 2014. In support of her Petition, XXXXXXXXX states as follows:
XXXXXXXXX and XXXXXXXXX were married on February 3, 2005 and their marriage was dissolved on March 3, 2009.  A copy of the Judgment of Dissolution is attached hereto as Exhibit A.
One child was born of the marriage, namely XXXXXXXXX, born 2005.
The Court expressly retained jurisdiction for the purposes of enforcing the Judgment of Dissolution of Marriage.
On November 1, 2013, this Court entered a needs based child support order for the minor child in the amount of $3,202.00 per month.
On April 8, 2014, this Court vacated the November 1, 2013 child support order and entered a new order in the amount of $764.00 per month.  A copy of the April 8, 2014 order is attached hereto as Exhibit B.
On April 8, 2014, this Court also granted XXXXXXXXX leave to file an Amended Petition for Modification of Child Support.
Since the date of the Judgment for Dissolution of Marriage there have been substantial changes in circumstances and the child's expenses have increased.  At the time of the Judgment, the child was 4, and is now 8 and attending private school, participating in extracurricular activities, and partaking in a unique dietary regime due to severe allergies.  All of these issues present significant expenses that are incurred in the best interests of the minor child.
COUNT I:  EDUCATION EXPENSES
XXXXXXXXX realleges and reaffirms the allegations contained in paragraphs one through seven of this Petition as if fully set forth herein.
At the time of the Judgment for Dissolution, the minor child was in the process of being enrolled in XXXXXXXXX School for pre-Kindergarten. This school presented an additional cost of over $3,000 per year.
Although pursuant to the Joint Parenting Agreement, XXXXXXXXX never agreed to this enrollment decision, he did acquiesce to the enrollment.  Further, XXXXXXXXX even dropped the minor child off at the first day for school.
XXXXXXXXX never contributed to the costs of XXXXXXXXX although tacitly agreeing to the enrollment.
On or about the winder of 2012/2013, XXXXXXXXX learned that XXXXXXXXX would be closing and would have to find a new school for the minor child.  After diligently searching for schools, XXXXXXXXX found a match for the minor child at the XXXXXXXXXXXXXXXXXX School.
XXXXXXXXX contacted XXXXXXXXX about the minor child's enrollment on or about January/February 2013.  Originally, XXXXXXXXX responded affirmatively to the decision, but later reneged after becoming aware that he would have to contribute financially to the education of the minor child.
After learning about XXXXXXXX failure to contribute, XXXXXXXXX contacted XXXXXXXXX parents to bear some of the financial burden that XXXXXXXXX was unwilling to shoulder.  XXXXXXXXX parents assisted with the 2013/2014 tuition with a check for XXXXX to the school.
The XXXXXXXXXXXXXXXXXX School tuition stands at approximately XXXXX per year.  XXXXXXXXX should contribute to the expenses for schooling that present a substantial change in circumstances since the March 2009 Judgment.
WHEREFORE, Respondent XXXXXXXXX respectfully requests that this Honorable Court:
Award Respondent additional support for the minor child pursuant to the 750 ILCS 5/505(a)(2.5) to cover at least half of the education costs;
Grant such other further relief as this Court may deem just and equitable under the facts and circumstances of this case.
COUNT II:  EXTRACURRICULAR ACTIVITIES
XXXXXXXXX realleges and reaffirms the allegations contained in paragraph one through sixteen of this Petition as if fully set forth herein.
The minor child is currently enrolled in Kung Fu, a program he thoroughly enjoys, at a cost of $150.00 per month.
The minor child is also enrolled in classical guitar at a cost of $900.00 per year. XXXXXXXXX is aware of this expense and has even enjoyed one of the minor child's concerts, while contributing nothing to the lessons.
The minor child is enrolled in swimming classes with a cost of $900.00 per year. For the coming months, the minor child is enrolled in Kung Fu Camp, at $100 per week; Music Camp, at $200 per week; and math tutoring at $285.00 per month.  All of the activities are not only necessary for XXXXXXXXX to maintain employment, but they are in the best interests of the minor child by providing him great experiences and positive role models.
WHEREFORE, Respondent, XXXXXXXXX respectfully requests that this Honorable Court:
Award Respondent additional support for the minor child pursuant to the 750 ILCS 5/505(a)(2.5) to cover at least half of the education costs;
Grant such other further relief as this Court may deem just and equitable under the facts and circumstances of this case.
COUNT III:  DIETARY AND HEALTH NEEDS
XXXXXXXXX realleges and reaffirms the allegations contained in paragraph one through twenty-two of this Petition as if fully set forth herein.
The Joint Parenting Agreement, attached hereto as Exhibit C, made the following finding under paragraph 6: "The parties' acknowledge that [the minor child] presently suffers from severe, life threatening food allergies..."  Following this finding, XXXXXXXXX has struggled to find a proper regimen of food, dietary supplements, and other aids to help the minor child.  
For example the minor child requires camel milk for protein and assistance with weight gain, which costs up to $600 per month.  
Aside from allergies, the minor child suffers from asthma, which imposes additional costs for treatment and management.
XXXXXXXXX has not met the minor child's needs with any additional support for him.  
XXXXXXXXX has been left as solely responsible for these costs as well as assisting the minor child with doctor's visits and other visits related to health care for the minor child.
WHEREFORE, Respondent, XXXXXXXXX respectfully requests that this Honorable Court:
Award Respondent additional support for the minor child pursuant to the 750 ILCS 5/505(a)(2.5) to cover at least half of the dietary and health costs;
Require the XXXXXXXXX to maintain health insurance for the minor child if available through his employment;
Grant such other further relief as this Court may deem just and equitable under the facts and circumstances of this case.
COUNT IV:  CONCEALED INCOME
XXXXXXXXX realleges and reaffirms the allegations contained in paragraph one through twenty-eight of this Petition as if fully set forth herein.
750ILCS 505(a)(4) states:
"If the net income [for child support] cannot be determined because of default or any other reason, the court shall order support in an amount considered reasonable in a particular case..." (brackets and emphasis added)
At the time of the marriage, XXXXXXXXX owned and operated a film equipment rental company doing business as XXXXXXXXX.  XXXXXXXXX earned up to $1800 per day for the labor and equipment.
Following the dissolution of the marriage, XXXXXXXXX dissolved XXXXXXXXX and bankrupted his trucking business.  Between these two businesses, XXXXXXXXX was able to provide a very comfortable living for the parties and the minor child as his income was generally above $100,000 per year.  However, and following a recent 13.3.1 Financial Disclosure Form, XXXXXXXXX now reports an income of less than half that amount.
Even with a substantially lower reported income, XXXXXXXXX is still able to live a very comfortable life, residing in a 1600 square foot lake house, owning a 21-foot speedboat and other luxuries.
In the meantime, and suspiciously enough, XXXXXXXXX new girlfriend, XXXXXXXXX, opened up a film equipment rental business, XXXXXXXXX following the dissolution of XXXXXXXXX own business.  Further, XXXXXXXXX experience in the field of film equipment is extremely limited, if she possess any at all.
Upon information and belief, XXXXXXXXX is using XXXXXXXXX as a vehicle to conceal income for the purposes of evading child support.  This information has caused XXXXXXXXX to propound additional discovery on businesses and individuals who have done business with XXXXXXXXX  as XXXXXXXXX's cellphone number is listed on XXXXXXXXX invoices and various individuals recall XXXXXXXXX's attendance on work days on which XXXXXXXXX billed for performing services.
In the alternative, XXXXXXXXX dissolution of business from which he earned a substantial income is voluntary underemployment and should not provide him with a way of dodging his child support obligation.
In October of 2013, XXXXXXXXX informed XXXXXXXXX of her going to court to modify child support. XXXXXXXXX responded, "Was thinking 'bout everything can't get to court on the day you requested, however I am willing to adjust the amount based on my current amount."  He then sent a check to the child support services department for $1000.  In the 30 days leading up to that check he paid a total of $1638.85.
When called upon XXXXXXXXX was able to make a substantial contribution to the support of the minor child, which based upon the official amounts of income he officially shows, would be a tremendous financial burden.
HEREFORE, Respondent, XXXXXXXXX respectfully requests that this Honorable Court:
Allow XXXXXXXXX to propound further discovery on XXXXXXXXX and other businesses or people who have done business with XXXXXXXXX;
Impute additional income on the Respondent pursuant to 750 ILCS 5/505(a)(4);
Award a child support amount pursuant to the factors listed in 750 ILCS 5/505 with an upward deviation from guidelines;
Grant such other further relief as this Court may deem just and equitable under the facts and circumstances of this case.