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.
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.