Mr. Ex's divorce lawyer, Marty, filed this in response to my Pro Se Petition for Child Support Modification.
Eventually, my divorce lawyer took over and wrote an amazing Petition for Child Support Modification that took us all the way to trial.
Divorce Checklist Lessons:
- Don't get shaken by the official sounding nature of these documents if you are without a divorce lawyer, but your Ex has one. Calmly read, process, and respond in writing with your own evidence to counter their points and support your own.
- All divorce paperwork needs to be filed with the courts in order to be officially recognized by them.
IN THE CIRCUIT COURT OF XXXXXXX COUNTY, XXXXXXXXXXX COUNTY DEPARTMENT, DOMESTIC RELATIONS DIVISION
MOTION TO STRIKE PETITION FOR MODIFICATION OF SUPPORT
XXXXXXXXXXX by attorney XXXXXXXXXXX moves the court to strike and dismiss the petition for modification of child support filed by XXXXXXXXXXX on March 21, 2014 for failure to state a cause of action and failure to comply with circuit court orders. This motion is brought pursuant to the provisions of 735 ILCS 5/2-615, 750 ILCS 5/510 and Circuit Court Rule 13.4. In support of this motion XXXXXXXXXXX XXXXXXXXXXX states as follows:
1. On March 21, 2014, XXXXXXXXXXX filed a Petition for Modification of Child Support ("Petition"). See copy of Petition attached as Exhibit A.
2. XXXXXXXXXXX has failed to state with specificity the statue or authority relied upon for the relief sought, which is mandated in post-judgment proceedings by Circuit Court Rule 13.4(c).
3. The Petition filed by XXXXXXXXXXX alleges no facts in support of her conclusory allegations that there is a substantial change in circumstances because " XXXXXXXXXXX" is making more money than he is showing on his individual income tax returns" and that "our son, the child, has multiple life threatening food allergies and asthma, and has greater physical needs than a child without allergies and asthma." These allegations are conclusory and must be stricken pursuant to the provisions of 735 ILCS 5/2-615.
Note: I needed to include evidence of all this as attachments: the signed Joint Parenting Agreement where we both signed off on the food allergies, along with the emergency plan, and then receipts for the special foods.
4. When ruling on a 2-615 motion to dismiss, the court must accept as true all well-pled facts in the complaint and all reasonable inferences, which can be drawn therefrom. Kolas V Hefted Broadcasting Corp (1992) 154 ILL2d. 1, 8-9. The question presented by a motion to dismiss a complaint for failure to state a cause of action is whiter sufficient facts are contained I the pleadings which, if established, could entitle a plaintiff to relief. Kolas, supra. XXXXXXXXX is a fact pleading state. Adkins v Sarah Bush Lincoln Health Center (1989) 129 ILL2d 497, 518. Accordingly plaintiffs are required to set out the ultimate facts that support their cause of action, and legal conclusions unsupported by allegations of specific facts are insufficient. LaSalle National Bank V City of Highland Park (2003) 344ILLApp3d 259, 274-275. Specifically plaintiffs are required to allege facts, and not simply conclusions, sufficient to bring its claim within a legally recognized cause of action. Napelton V Village of Hinsdale (2008) 229ILL2d 296, 305-306.
5. XXXXXXXXXXX has not peaked facts to support her contention that XXXXXXXXXXX is earning more money than he has disclosed on his income tax returns, that the child has life threatening conditions and therefore greater physical needs than a child without allergies and asthma.
6 This court has recently entered a 20% child support order. There is no showing in XXXXXXXXXXX petition as to what a "change in circumstance', if any, makes her more deserving of additional support.
7. XXXXXXXXXXX has wrongfully been using this purported modification petition as her springboard to issue multiple subpoenas in the hope of discovering some facts to support her conclusory claim herein.
Wherefore, XXXXXXXXXXX moves the court to strike and dismiss the Petition for Modification of Child Support filed by XXXXXXXXXXX on March 21, 2014 for failure to state a cause of action and failure to comply with circuit court orders.