The trial judge asked: "So what do we do to make sure that the little one has a meaningful relationship with mom and dad, and [what] do we do to make sure that dad and mom have a meaningful relationship with this child?" THE ANSWER? REMOVE THE FATHER ALMOST COMPLETELY FROM THE CHILD'S LIFE. Oh, and make him a cash machine that the ex-wife can withdraw from at any time.
THAT'S what this case is about.
Evidence and logic mean nothing in so-called "courts of law." Some may address these immoral terrorists as "Your Honor," but I never will -- as they haven't EARNED it.
FIRST JUDICIAL DISTRICT
| IN RE THE MARRIAGE OF: | ) |
Appeal from the Circuit Court of |
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Cook County , Illinois | |
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County Department – | |
| BRIAN LOVETT, | ) |
Domestic Relations Division |
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| Petitioner-Appellant, |
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Trial Court No. 00 D 06725 |
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| and |
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Judge R. Morgan Hamilton, |
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Presiding, and | |
| LAURIE LOVETT, | ) |
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Judge Veronica Mathein, | |
| Respondent-Appellee |
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Presiding |
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BRIEF OF PETITIONER-APPELLANT
BRIAN LOVETT
1416 W Wolfram St., #1
Chicago, IL 60657-4117
(312) 245-7982
blovett@gsb.uchicago.edu
November 19, 2004
ORAL ARGUMENT REQUESTED
POINTS AND AUTHORITIES
People v. Malchow, 193 Ill. 2d 413, 418 (2000)
Lulay v. Lulay, 193 Ill. 2d 455 (2000)
Nissenson v. Bradley, 316 Ill. App. 3d 1035 (2000)
In Re Marriage of Mcmahon, 82 Ill. App.3d 1126 (1980)
Langman v. Langman, 325 Ill.App.3d 101 (2001)
People of the State of Illinois v. R.G., 131 Ill. 2d 328 (1989)
Troxel v. Granville, 530 U.S. 57 (2000)
Lulay v. Lulay, 193 Ill. 2d 455 (2000)
Harris v. McRae, 448 U.S. 297 (1980)II. The best interest of the child statutes are unconstitutional
A. Brian is a fit parent; no evidence exists of abuse or risk of substantial harm
Troxel v. Granville, 530 U.S. 57 (2000)
Stanley v. Illinois, 405 U.S. 645 (1972)
Jarrett v. Jarrett, 348 Ill. App. 1 (1952)
Santosky v. Kramer, 455 U.S. 745 (1982)B. Brian has a right to privacy and a right to be an equal parent.
Troxel v. Granville, 530 U.S. 57 (2000)
Griswold v. Connecticut, 381 U.S. 479 (1965)
Meyer v. Nebraska, 262 U.S. 390 (1923)
Quilloin v. Walcott, 434 U.S. 246 (1978)
Stanley v. Illinois, 405 U.S. 645 (1972)
Santosky v. Kramer, 455 U.S. 745 (1982)
Parham v. J.R., 442 U.S. 584 (1979)
Bellotti v. Baird, 443 U.S. 622 (1979)
Lulay v. Lulay, 193 Ill. 2d 455 (2000)
Regenold v. Baby Fold, Inc., 68 Ill.2d 419 (1977)
City of Chicago v. Morales, 527 U.S. 41 (1999)
Village of Hoffman Estates et al. v. Flip-Side, 455 U.S. 489 (1982)
Wickham v. Byrne, 199 Ill.2d 309 (2002)C. Troxel v. Granville is broad in its application.
Troxel v. Granville, 530 U.S. 57 (2000)
Pierce v. Society of Sisters, 268 U.S. 510 (1925)
Prince v. Massachusetts, 321 U.S. 158, 166 (1944)D. The only criterion for infringing on a parent’s fundamental right is fitness
Santosky v. Kramer, 455 U.S. 745 (1982)
Boyd v. United States, 116 U.S. 616 (1886)
Miranda v. Arizona, 384 U.S. 436 (1966)
McCarthy v. Arndstein, 266 U.S. 34 (1924)
Griswold v. Connecticut, 381 U.S. 479 (1965)A. The Wealth Transfer Statutes violate equal protection.
Gulf, Colorado and Santa Fe Railway Company v. Ellis, 165 U.S. 150(1897)
Beyer v. Parkis, 324 Ill.App.3d 305 (2001)
In re the Marriage of Emily Auriemma, 271 Ill. App. 3d 68 (1994)
McLaughlin v. Florida, 379 U.S. 184 (1964)
Loving v. Virginia, 388 U.S. 1 (1967)
Romer v. Evans, 517 U.S. 620 (1996)
Stanley v. Illinois, 405 U.S. 645 (1972)
Glona v. American Guarantee Co., 391 U.S. 73 (1968)
Leary v. United States, 395 U.S. 6 (1969)
Orr v. Orr, 440 U.S. 268 (1979)
Nevada Department of Human Resources v. Hibbs, 123 S.Ct. 1972 (2003)
In Re Fisher, 15 Ill.2d 139 (1958)
Jackson v. Jackson, 34 Ill. App.3d 407 (1975)
In Re Marriage of Workman, 89 Ill. App.3d 886 (1980)
Bellow v. Bellow, 94 Ill. App.3d 361 (1981)
People v. Pullen, 192 Ill.2d 36 (2000)
Consumer Product Safety Commission et al. v. GTE Sylvania, 447 U.S. 102 (1980)
Griswold v. Connecticut, 381 U.S. 479 (1965)
Chicago & Northwestern Railway Company v. NYE Schneider Fowler Company,260 U.S. 35 (1922)
In re Marriage of Fields, 288 Ill.App.3d 1053 (1997)B. The Wealth Transfer Statutes violate due process
Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746 (1884)
In Re Fisher, 15 Ill.2d 139 (1958)
Beyer v. Parkis, 324 Ill.App.3d 305 (2001)
Griffin v. Illinois, 351 U.S. 12 (1956)
Chapman v. Chapman, 285 Ill.App.3d 377 (1996)
In Re Marriage of Marie R. Courtright, 185 Ill. App. 3d 74 (1989)
Village of Hoffman Estates et al. v. Flip-Side, 455 U.S. 489 (1982)
Coates v. City of Cincinnati, 402 U.S. 611 (1971)
In Re Marriage of Simmons, 87 Ill. App.3d 651 (1980)
In re Marriage of Mohr, 260 Ill.App.3d 98 (1994)
Grayned v. City of Rockford, 408 U.S. 104 (1972)
Weinberger v. Salfi, 422 U.S. 749 (1975)
Manley v. Georgia, 279 U.S. 1 (1929)
In re Marriage of Harlow, 251 Ill.App.3d 152 (1993)
Stanley v. Illinois, 405 U.S. 645 (1972)C. The Wealth Transfer Statutes violate privacy.
Roe v. Wade, 410 U.S. 113 (1973)
Whalen v. Roe, 429 U.S. 589 (1977)
Stanley v. Georgia, 394 U.S. 557 (1969)
Chapman v. Chapman, 285 Ill.App.3d 377 (1996)
In Re Marriage of Simmons, 87 Ill. App.3d 651 (1980)
Beyer v. Parkis, 324 Ill.App.3d 305 (2001)D. The Wealth Transfer Statutes are unconstitutional taking of property
Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 304 Ill.App.3d 542 (1999)
Chicago, Burlington and Quincy Railroad Company v. Chicago, 166 U.S. 226 (1897)
Atlantic Coast Line Railroad Company v. Riverside Mills, 219 U.S. 186 (1911)
In Re Fisher, 15 Ill.2d 139 (1958)
Beyer v. Parkis, 324 Ill.App.3d 305 (2001)E. The Wealth Transfer Statutes constitute a threat of imprisonment for debt.
Hodges v. United States, 203 U.S. 1 (1906)
V. The order permanently enjoining Brian was unconstitutional
Pfeffer v. Lebanon Land Development Corp., 46 Ill. App.3d 186 (1977)
Nye v. Parkway Bank & Trust Co., 114 Ill. App.3d 272 (1983)
Lily of the Valley Spiritual Church v. Sims, 169 Ill. App. 3d 624 (1988)
Electronic Design & Manufacturing v. John Konopka, 272 Ill. App. 3d 410 (1995)
Triangle Sign Co. v. Randolph & State Property, 16 Ill. App.2d 21 (1957)
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
Troxel v. Granville, 530 U.S. 57 (2000)
Kemner v. Monsanto Co., 112 Ill.2d 223 (1986)
Parham v. J.R., 442 U.S. 584 (1979)VI .Laurie and her attorneys committed perjury
In the Matter of Michael, 326 U.S. 224 (1945)
People v. Briddle, 84 Ill. App. 3d 523 (1980)
Sanchez v. City of Chicago, No. 1-03-2594 (Ill.App. Dist.1 09/30/2004)
Regenold v. Baby Fold, Inc., 68 Ill.2d 419 (1977)
Majewski v. Gallina, 17 Ill.2d 92 (1959)VII .Laurie and her attorneys committed deliberate, malicious, and severe fraud
Soules v. General Motors Corp., 79 Ill.2d 282 (1980)
In re Marriage of Dunlap, 294 Ill. App. 3d 768 (1998)
Nissenson v. Bradley, 316 Ill. App. 3d 1035 (2000)VIII. Laurie clearly dissipated assets
In Re Marriage of Barbara Hagshenas, 234 Ill. App. 3d 178 (1992)
IX. Brian should have received the marital home
In re Marriage of Gattone, 317 Ill.App.3d 346 (2000)
In Re Marriage of Barbara Hagshenas, 234 Ill. App. 3d 178 (1992)X .Brian should have received the jewelry
In Re Marriage of Weinstein, 128 Ill. App.3d 234 (1984)
Dudley v. Uptown Nat. Bank of Moline, 25 Ill. App.2d 514 (1960)
Statutes
"Attorneys' Fees Statutes," including 750 ILCS 5/501 (c)(1), 750 ILCS 5/503 (j), and 750 ILCS 5/508, as well as any other sections within 750 ILCS 5 and rules that refer to “attorneys’ fees”
"Maintenance Statutes," including 750 ILCS 5/504, and associated sections 750 ILCS 5/501 (a), 750 ILCS 5/507, and 750 ILCS 5/510 (a), as well as any other sections and rules that refer to “maintenance”
”Best Interest of the Child Statutes,”including 750 ILCS 5/602, 750 ILCS 5/603, 750 ILCS 5/604, 750 ILCS 5/607, 750 ILCS 5/609, 750 ILCS 5/610, 750 ILCS 5/503 (g), and 750 ILCS 5/506, as well as any other sections and rules that refer to “best interest of the child”
”Child Support Statutes,” including 750 ILCS 5/505, and associated sections 750 ILCS 5/501 (a), 750 ILCS 5/507, 750 ILCS 5/510 (a), 750 ILCS 5/510 (e), 750 ILCS 5/510 (f), and 750 ILCS 5/513, as well as any other sections and rules that refer to “child support”
”Discovery Rules,” including Illinois Supreme Court Rules 201 through 214
”Mandatory Disclosure Rules,” including Rules of the Circuit Court of Cook County 13.3.1 and 13.3.2
Regulations
Constitutional Provisions
NATURE OF THE CASE
Brian Lovett (hereinafter “Brian”) filed for divorce from his wife Laurie Lovett (hereinafter “Laurie”) on April 28, 2000, approximately five months after the birth of their daughter Samantha Lovett (hereinafter “Samantha”) and 2.5 years after they were married. In July, 2000, the parties attempted to reconcile, but after struggling for eleven months, both agreed they could not.
Brian’s first attorney fired Brian as a client in court when he refused to accept a visitation schedule proposed by the trial judge and the Guardian Ad Litem for four out of fourteen days. Shortly after Brian hired a replacement attorney, the parties negotiated an agreement (Pl. Ex. A, hereinafter “Agreed Interim Order”) that attempted to set-out the temporary and permanent disposition of some of the most contentious topics while the divorce was pending (e.g., custody, parenting schedules, living arrangements, child support, future income and expenses, property). Brian later fired his second attorney. Subsequently, Brian filed his appearance as Pro Se seeking to have multiple Illinois statutes and rules related to divorce declared unconstitutional.
Brian is challenging the constitutionality of all Illinois statutes that refer to the “best interest of the child” (i.e., 750 ILCS 5/ 602, 603, 604, 607, 609, 610, 503 (g), and 506, as well as any other sections and rules that refer to “best interest of the child”) (hereinafter “Best Interest of the Child Statutes”), on their face and as applied, which compel the State’s judiciary to make “awards” of child custody and parenting time, or allocation of parental responsibilities, privileges, and parenting time, or assignment of “guardians” and “evaluators,” within the context of dissolution of marriage actions and post-decree dissolution of marriage actions concerning children. Brian contends that the challenged statutes and rules violate well-recognized fundamental rights, including the right to due process, the right to equal protection, the right to privacy, and the right to the care, custody, control, companionship, and nurture of one’s offspring embodied in the fundamental liberty interest in family, which rights are secured by the Fourteenth Amendment. Brian is seeking that the challenged “best interest” statutes and rules are declared unconstitutional. These challenges/questions were presented in Brian’s Trial Brief (R. Vol. 5-9: C1085-2020), his Summary of Constitutional Arguments trial pleading (R. Vol. 9-10: C2225-2237), and extensively throughout the trial.
Additionally, Brian also is challenging the constitutionality of all “child support” statutes (750 ILCS 5/505, and associated sections 501 (a), 507, 510 (a), 510 (e), 510 (f), and 513, as well as any other sections and rules that refer to “child support”) (hereinafter “Child Support Statutes”), the maintenance statutes (750 ILCS 5/504, and associated sections 501 (a), 507, and 510 (a), as well as any other sections and rules that refer to “maintenance”) (hereinafter “Maintenance Statutes”), and the attorneys’ fee statutes (750 ILCS 5/501 (c)(1), 503 (j), and 508, as well as any other sections within 750 ILCS 5 and rules that refer to “attorneys’ fees”) (hereinafter “Attorneys’ Fees Statutes”), as well as parts 13.3.1 and 13.3.2 of the Rules of the Circuit Court of Cook County(hereinafter “Mandatory Disclosure Rules”) and Illinois Supreme Court Rules 201 through 214 (hereinafter “Discovery Rules”). Brian contends that these statutes and rules are directly and egregiously violative of the Federal Constitution and Illinois Constitution. Specifically, Brian contends that the statutes and rules are unconstitutional on their face[1] and as applied because they violate the fundamental rights to equal protection, to due process, to privacy, to property, and to proscriptions about involuntary servitude, all of which are guaranteed to Brian under the Federal Constitution. Further, Brian contends the statutes are unconstitutional as applied because they violate his rights to not be imprisoned for debt and for proscriptions about private takings for private use or public use, all guaranteed to him under the Illinois Constitution. As with the Best Interest of the Child Statutes, these challenges/questions were also presented in Brian’s Trial Brief, his Summary of Constitutional Arguments trial pleading, and extensively throughout the trial.
On June 1, 2004, approximately ten months after an eighteen-day, non-jury trial, the circuit court entered a Judgment for Dissolution of Marriage (hereinafter “Judgment”) denying Brian’s request to find the referenced statutes and rules unconstitutional. Additionally in its Judgment, the circuit court, intra alia, awarded sole custody of Samantha to Laurie with visitation for Brian, ordered Brian to pay child support, divided up the parties’ assets, ordered the sale of the marital residence, and ruled on other outstanding requests. On June 11, 2004, the circuit court ordered a permanent injunction against Brian (hereinafter “Injunction”). Brian appeals from the Judgment, certain related orders entered by the circuit court regarding attorneys’ fees and property distribution, and the Injunction. As Judge R. Morgan Hamilton summarized:
“We've got one child, we've got two parents. We will always have the one child and two parents, and you will be the parents of this child forever and ever, and the mom will be the mom of this child forever and ever. The dad will be the dad of this child forever and ever. But what we have is a situation... where mom and dad will no longer be living together in the same house with the child. So what do we do to make sure that that little one has a meaningful relationship with mom and dad, and [what] do we do to make sure that dad and mom have meaningful relationships with this child? That's what our case is about.” (S.R. V3: 111 lines 21-24, 112 lines 1-9)
ISSUES PRESENTED FOR REVIEW
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Whether the following Illinois statues and rules are directly and egregiously violative of the Federal Constitution and Illinois Constitution on their face and as applied: the Best Interest of the Child Statutes; the Child Support Statutes, the Maintenance Statutes, and the Attorneys’ Fees Statutes (hereinafter “Wealth Transfer Statutes”); the Mandatory Disclosure Rules, and; the Discovery Rules.
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Whether the circuit court’s orders under these challenged statutes and rules were unconstitutional (i.e., assigning custody and visitation, requiring Samantha to be the irrevocable life insurance beneficiary, requiring Brian to provide secondary medical coverage, ordering Brian to pay child support and attorneys’ fees, ordering Brian not be reimbursed for maintenance paid, allowing Laurie to claim Samantha as a tax exemption, for college expenses to be determined by Section 513, ordering Brian to provide Laurie annual copies of federal and state tax returns, W-2 statements, and 1099s, and the Injunction).
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Whether the circuit court’s July 23, 2003 order for Brian to pay Laurie’s attorneys’ fees was also an abuse of discretion and contrary to the manifest weight of the evidence.
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Whether the circuit court’s order that Brian not be reimbursed for the maintenance payments he was ordered to make pursuant to an order entered on September 30, 2002 was an abuse of discretion and contrary to the manifest weight of the evidence.
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Whether Laurie and her attorneys committed multiple torts and counts of perjury.
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Whether the circuit court abused its discretion in ignoring fraud and perjury.
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Whether the circuit court finding the marital home to be marital property and the division of the net proceeds were contrary to the manifest weight of the evidence.
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Whether the circuit court abused its discretion in ordering the sale of the marital home, ordering Brian to sign a quitclaim deed transferring his interest in the marital home to Laurie, and authorizing and empowering any judge to sign a Judge’s Deed transferring Brian’s interest in the marital home to Laurie.
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Whether the circuit court’s finding that no dissipation occurred by Laurie was contrary to the manifest weight of the evidence.
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Whether awarding two marital property items to Laurie in its July 24, 2003 order was against the manifest weight of the evidence and an abuse of discretion.
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Whether the circuit court awarding specific pieces of jewelry to Laurie was contrary to the manifest weight of the evidence.
JURISDICTIONAL STATEMENT
Pursuant to Supreme Court Rules 301 and 303, this is an appeal as of right from a final judgment of a circuit court. The circuit court’s judgment dissolving the marriage, inter alia, was entered on June 1, 2004 (R. Vol. 10: C2256-2304), with an associated order entered on July 23, 2003 ordering Brian to pay Laurie’s attorneys $56,467 (R. Vol. 9: C2213) (hereinafter “July 23, 2003 Order”), and an associated order entered on July 24, 2003 awarding two property items to Laurie (R. Vol. 9: C2218) (hereinafter “July 24, 2003 Order”), and the Injunction entered on June 11, 2004 (R. Vol. 10: C2323-2324). Brian timely filed his Notice of Appeal on June 8, 2004 (R. Vol. 10: C2305-2306) and an amended Notice of Appeal on June 18, 2004 (R. Vol. 10: C2325-2326).
STANDARD OF REVIEW
All statutes, rules, and associated orders challenged here are questions of law, statutory construction, and constitutional validity. The proper standard of review is de novo. People v. Malchow, 193 Ill. 2d 413, 418 (2000); Lulay v. Lulay, 193 Ill. 2d 455, 466 (2000). Whether Illinois Supreme Court Rule 137 has been violated is reviewed under the manifest weight of the evidence standard. Nissenson v. Bradley, 316 Ill. App. 3d 1035, 1040 (2000). Though it appears that some disagreement exists among the courts, Brian believes the appropriate standards for the remaining issues are whether the trial court abused its discretion and whether the orders were contrary to the manifest weight of the evidence. In Re Marriage of Mcmahon, 82 Ill. App.3d 1126, at ¶25-33 (1980).
STATEMENT OF FACTS
During the first three days of trial, Brian presented to the circuit court his argument as to why he contended the Best Interest of the Child Statutes, the Child Support Statutes, the Maintenance Statutes, the Attorneys’ Fees Statutes, the Mandatory Disclosure Rules, and the Discovery Rules were unconstitutional. At the circuit court’s request, Brian also filed a Summary of Constitutional Arguments. On July 23, 2003, the circuit court ordered Brian to pay Laurie’s attorneys $56,467 (i.e., July 23, 2003 Order). On July 24, 2003, the circuit court entered an order awarding two property items to Laurie (i.e., July 24, 2003 Order). On June 1, 2004, the circuit court entered its Judgment denying Brian’s request to declare any of the referenced statutes and rules unconstitutional. Additionally, the circuit court: (1) awarded Laurie the sole care, custody, control, and education of Samantha; (2) allowed Brian to have significantly reduced visitation (16% of time, or approximately 4.5 days/month); (3) ordered Brian to name Samantha as the irrevocable beneficiary of any life insurance policy he may have through work; (4) ordered Brian to provide secondary medical coverage for Samantha; (5) ordered Brian to pay child support of $1,519.10 monthly; (6) ordered that Laurie shall claim Samantha as a tax exemption every year; (7) ordered that each parent’s contribution of college expenses be determined by Section 513; (8) ordered Brian not be reimbursed for the child support and maintenance payments he was ordered to make pursuant to an order entered on September 30, 2002; (9) ordered Brian not be reimbursed for interim attorneys’ fees and costs awarded to Laurie pursuant the July 23, 2003 Order; (10) found certain pieces of jewelry to be non-marital and ordered Laurie be assigned this jewelry; (11) found the marital home to be marital property, ordered the sale of the party’s marital home, the net proceeds which are to be divided 50/50 between the parties, ordered Brian to sign a quitclaim deed transferring his interest in the marital home to Laurie, and authorizing a Judge’s Deed should Brian not execute the quitclaim deed (which was later executed (R. Vol. 10: C2315)); (12) ordered Brian to provide Laurie copies of federal and state tax returns, W-2 statements, and 1099s; (13) found that no dissipation occurred by Laurie; (14) ignored alleged perjury by Laurie’s attorneys and Brian’s plea for sanctions; (15) ignored alleged perjury by Laurie and Brian’s plea for sanctions; (16) ignored alleged fraud by Laurie’s attorneys; (17) ignored alleged fraud by Laurie, and; (18) awarded two marital property items to Laurie in its July 24, 2003 Order.
On June 10, 2004, at approximately 5:00 PM, Brian received petitions from Laurie’s attorneys seeking a permanent injunction against Brian. On June 11, 2004 at 10:30 AM, the parties appeared before the circuit court, Judge Veronica Mathein presiding, where an emergency hearing was held on the issues. The resulting Injunction stated that Brian admitted: (a) “That he has told Samantha that Laurie is taking her (Samantha) from him;” (b) “That he has told Samantha that he was going to have less time with her;” (c) “That he has told Samantha that her mother lies,” and; (d) “That he has told Samantha that people associated with her mother are bad.” Resulting from those findings, the circuit court ordered a permanent injunction “...enjoining Brian Lovett from making any disparaging remarks about Laurie Lovett and further enjoining him from talking to Samantha about the Judgment of Dissolution of Marriage, the appeal from that Judgment or his alleged fight for Samantha.” (R. Vol. 10: C2323-2324).
ARGUMENT
I. When a State law or rule affects fundamental rights, the traditional standard of appellate review is abandoned, there is no presumption of constitutionality, and the court is required to apply “strict scrutiny”
The Judgment states: “That the Wife, LAURIE LOVETT, shall have the sole care, custody, control and education of the minor child of the parties, SAMANTHA LOVETT, born on November 13, 1999.” (Judgment, R. Vol. 10: C114). Did Brian have a fundamental constitutional right to make decisions concerning the care, custody, and control of his child before filing for divorce in the circuit court? If the answer is yes, given the Judgment’s clear wording, does Brian have a fundamental constitutional right to make decisions concerning the care, custody, and control of his child after receiving the Judgment from the circuit court? If the answer is no, what did Brian do wrong between the time he filed for divorce and the time his divorce was “granted” that caused him to lose that fundamental right? For, surely, for someone to lose such an important fundamental right, he must have committed a crime of great severity other than not being able to get along with his wife, which was why he filed for divorce in the first place.
Fundamental rights “...must be evaluated under a strict scrutiny analysis. Lulay, 193 Ill. 2d at 476, 739 N.E.2d at 532. To withstand the strict scrutiny test, a statute must serve a compelling state interest, and the statute must be narrowly tailored to serve the compelling interest.” Langman v. Langman, 325 Ill.App.3d 101, at ¶32 (2001); see also People of the State of Illinois v. R.G., 131 Ill. 2d 328 at ¶45 and 47 (1989). Like the right to make decisions concerning the care, custody, and control of a child, the right to property is also fundamental. A statute, by its mere existence “on the books,” cannot overcome fundamental individual rights and liberty interests. Troxel v. Granville, 530 U.S. 57, 65 (2000).
There must exist a compelling state interest before the State can impair fundamental rights, even in the face of apparent statutory empowerment to the contrary, as evidenced by the fact that the standard of review of such a decision is one of strict scrutiny. What was the circuit court’s narrowly tailored, compelling interest in taking Brian’s fundamental constitutional right away from him? This court may NOT use intermediate scrutiny because it is not the heightened scrutiny required when fundamental interests are implicated. Id., at 65; Lulay v. Lulay, supra, at 532. “[I]f a law "impinges upon a fundamental right explicitly or implicitly secured by the Constitution [it] is presumptively unconstitutional.” Harris v. McRae, 448 U.S. 297, 312 (1980). Therefore, all challenged statutes and rules here are presumptively unconstitutional.
Having effectively lost all rights to his daughter, there can be NO question that the State has thus “significantly interfered” with Brian’s “freedom of choice” concerning “family life,” his fundamental right to property, and his fundamental right to privacy.
II. The best interest of the child statutes are unconstitutional
A. Brian is a fit parent; no evidence exists of abuse or risk of substantial harm.
Per the Judgment (R. Vol. 10: C2300-2304), by “awarding” Laurie sole custody, the circuit court has completely deprived Brian of any decision-making authority and control of his daughter. Additionally, the circuit court has completely deprived Brian of the ability to see his daughter equally (in relation to his ex-wife). These decisions were completely erroneous because Brian was not found to be unfit. To avoid state impairment of parental rights, one need only be a “fit” parent. Troxel v. Granville, supra, at 67.
The criterion for “fitness” only requires that one “adequately cares for his or her children.” As long as one is fit in this regard, one is entitled to the full constitutional protection of one’s liberty interest in family. Brian has not been shown to be an unfit parent and, therefore, the courts have no reason to inject themselves into the realm of his relationship with his daughter and separate him from her. Stanley v. Illinois, 405 U.S. 645, 652–653 (1972). The decision by the trial court to force itself into the private realm of Brian’s relationship with his daughter and deprive him of his rights to his child was a flagrant violation of his full constitutional protection of his liberty interest in family. “A court is only warranted in depriving a father of the custody of his child where the evidence discloses that the child is destitute, abandoned or dependent; that the father is living an immoral life or in vicious or disreputable circumstances; that he has neglected or treated the child cruelly or unkindly or that he may so treat the child; that he is wanting in good principles or that he is illy adapted to the care of the child on account of defects in his mental or physical qualities which prevent him from being a kind and affectionate father.” Jarrett v. Jarrett, 348 Ill. App. 1, at ¶20 (1952).
The triggering mechanism of a divorce is not a sufficient-enough reason to allow the State to impermissibly intervene and interrupt the associative right of the child and parent in the parent-child relationship. The State cannot support the argument that a child is in imminent harm just because the parents are divorcing, for alleged parental conflict may or may not rise to a level compelling State intervention. Where a parent is fit, the legal presumption implies that the child is not in imminent harm. Where the child is not in imminent harm, there are no competing interests to a parent’s right to the care, custody, and companionship of the child. Where there are no competing interests, the child’s best interests are already protected. Santosky v. Kramer, 455 U.S. 745, 759–761 (1982).
Moreover, the fundamental right of a parent to raise his or her own child has never been premised on any kind of expertise. The right to raise one’s own child as one sees fit is no more subject to any expert opinion (e.g., a judge’s, a lawyer’s, an evaluator’s) about a child’s “best interest” than is the right to freedom of religion subject to precisely analogous “expert” opinions about consistent theology. Citizens have the right to raise their children; citizens have the right to freedom of religion – in both cases the opinions of “experts” about how well citizens exercise those rights have no bearing upon whether citizens actually possess those rights. To say otherwise is reductio ad absurdum, since rights that are subject to such “expert” opinions are not rights at all. This is critically important in light of the obvious inability of mental health “experts” to achieve consensus on any notions of the “best interest of the child” other than protection from abuse or criminal neglect. (S.R. Vol. 10: 166-169; see also S.R. Vol. 2: 226-236 discussing recommendations of custody evaluation report and associated “expert” witnesses must be barred as “junk science” and Brian’s Motion in Limine (R. Vol. 5: C1007-1011)).
Therefore, the State cannot interfere by assigning a Guardian Ad Litem (hereinafter “GAL”) to protect the “best interest” of the child, as fit parents are already, by definition, protecting the child’s best interest. Further, the State may not infringe on a fit parent’s right to property and require him to fund an officer of the court (i.e., GAL) with his private property against his will. The State also cannot interfere and require a custody evaluation to “evaluate” or identify the physical or mental state of the parties, or identify the “best interest of the child.” Further, the State may not infringe on a fit parent’s right to privacy and property by forcing him to subject himself to a custody evaluation/psychological review, reveal information to a stranger, and then fund the process with his private property, all against his will.
There is no significant difference between termination of a parent’s rights to his children and making him a non-custodial parent with no decision-making authority or control over his children (not to mention significantly reducing his parenting time). The entire concept of “awarding custody” is flawed; no one is awarded rights, but, rather, one parent is deprived of rights. Brian divorced his wife – not his daughter, and the State (i.e., court) has no compelling reason for taking his daughter away from him or interfering in his child rearing decisions. In every contested child custody case in which there is no finding of parental unfitness by clear and convincing evidence, a court always denies one parent equal protection when it apportions custody unequally between the parties and severs the legal (and often emotional) bond between the so-called “non-custodial” parent and the child. Laurie’s attorney even correctly confirmed that “[t]he cases since 1999 in Illinois have almost universally rejected joint custody.” (S.R. Vol. 11: 68 line 22, 69 line 1. However, mere repetition does not establish validity.
B. Brian has a right to privacy and a right to be an equal parent.
As there is no abuse or risk of substantial harm, and as it is a parent’s right to manage a child, and as this right is a fundamental right protected by the Federal Constitution (e.g., Troxel v. Granville, supra), the court does not have the authority or jurisdiction to force/inject itself into Brian’s private life (Griswold v. Connecticut, 381 U.S. 479, 495–496 (1965))“under the guise of protecting the public interest” (Meyer v. Nebraska, 262 U.S. 390, 399–400 (1923))through the “best interest of the child.” The U.S. Supreme Court has specifically said that the “Due Process Clause would be offended "[if] a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest." Quilloin v. Walcott, 434 U.S. 246, 255 (1978). Yet, this is exactly what happened here. Brian contends that the unequal allocation of parenting time, parental responsibilities, and rights by the trial court constituted an unconstitutional infringement of his fundamental liberty interest in his family, and his rights under the Equal Protection and Substantive Due Process Clauses of the Fourteenth Amendment of the Federal Constitution.
“What I have highlighted in my own personal notes as I listen to you is something that I want to stress now and that I want you and Mrs. Lovett to remember as this case proceeds, because this is just one short snapshot in time and in the time of your life and in the life of your daughter. When this case is over, the mother will still be the mother of this child. And when this case is over, the father will still be the father of this child. And I don't hear that from you. What I hear from you, Mr. Lovett, is that you haven't really grasped that the only father this child is ever going to have is you. You are her dad. The only mother this child is ever going to have is your wife. She is the mom, and divorced or married, that doesn't change. And I am listening to you and you haven't gotten to that step yet. You need to make a fast forward, sir. You will always be the father and mom will always be the mother.” (Judge R. Morgan Hamilton, S.R. Vol. 3: 18 lines 14-24, 19 lines 1-8.
The trial court claimed to understand this, though obviously its judgment is a contradiction to any rational thinking person. As the trial court correctly claimed, Brian stands in the same relation to his daughter during these proceedings as he did before these proceedings, as a divorced parent is still the parent. This relationship is independent of any other relationship that exists with any other person. A divorce does not (or, rather, should not) nullify or reduce the relationship between Brian and his daughter. The parties’ divorce, even though it includes a child, does not give a court a special circumstance to usurp Brian’s parental authority and rights. Any court decision that favors Laurie over Brian and interferes with Brian’s privacy will eventually destroy an intact relationship. “The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection.” Stanley v. Illinois, supra, at 651.When the parties were not getting divorced, the court did not have the authority or jurisdiction to infringe or restrict one parent’s fundamental rights by forcing either parent to accept an unequal parenting/custody schedule. “Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.” Santosky v. Kramer, supra, at 753.
Brian accepts that dissolution of his marriage would of necessity act to diminish the amount of time spent with his child, but contends that the State’s power to arbitrarily apply the statutory factors set forth specifically in 750 ILCS 5/602 or broadly in the 750 ILCS 5, Illinois Marriage and Dissolution of Marriage Act, in light of the fact that no credible evidence exists herein to implicate Brian as an unfit parent, or that no “clear and present danger” exists, resulted in a capricious “custody” decision which flagrantly violates Brian’s right to equal protection by “awarding” (or, more appropriately, allowing) him unequal parenting time and parental responsibilities as compared with Laurie. “The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.” Parham v. J.R., 442 U.S. 584, 602 (1979).
The welfare of citizens, including children, is an important State interest. However, the State cannot impinge upon the protected and underlying federal rights of its citizens – adults or children. State privileges (i.e., statutory entitlements) do not supersede substantive federal rights. Through the Best Interest of the Child Statutes, the State has reversed the “pecking order” of the Supremacy Clause (Article VI, Paragraph 2). The best interest standard cannot supersede parental and children’s rights; yet the State places the “best interest of the child” at the top of the pyramid, disregarding federal rights to “custody.” The Constitution permits a State to interfere only to prevent harm or potential harm to the child. There is no public purpose that demands the harm and social damage to the fundamental parent-child relationship where the child is implicitly protected by a fit parent. The Best Interest of the Child Statutes do not require a threshold showing of harm and permit a court to exercise virtually infinite discretion in “allocating” parental rights and responsibilities, parenting time and “awards” of custody, “guardians” and “evaluators,” with the only requirement being that the judicial outcomes be “found” – solely by the court whom has no “special wisdom” – to serve the “best interest of the child,” which is, in fact, determined by the court itself. Yet, the “best interest” standard “provides little real guidance... [and] is fundamentally at odds with privacy interests.” Bellotti v. Baird, 443 U.S. 622, 638 and 655–656 (1979).
Lacking a requirement that a child is, or ever was proven to be, in substantial harm, the Best Interest of the Child Statutes are facially unconstitutional. Frequently, the legal community uses the term “best interest of the child” to gloss over constitutional mandates and turn fit parents into criminals (e.g., removing most all rights to their children, eliminating their ability to see their children, forcing them to pay purported child support with a threat of imprisonment if they do not). “Best interest” is actually a legal standard placing the trial judge, and hence the State, superior to fit parents. Its only proper use is after parental rights are terminated or after a threshold showing of harm. Quilloin v. Walcott, supra, at 255. Courts can reasonably claim to know that the “best interests of children” means protecting children against abuse and/or criminal negligence. They cannot reasonably claim to know more. Thus, in all cases in which court decisions implement disproportionate custody schedules and privileges as between fit parents, those decisions are per se capricious and unconstitutionally violative of liberty interests.
As the trial court readily admitted, two classes of parents exist: custodial and non-custodial (S.R. Vol. 3: 155 lines 7-12). The Best Interest of the Child Statutes unnecessarily create these two classes of parents out of essentially similarly situated persons, thus committing an equal protection under-inclusive violation (i.e., treats persons with the same capabilities differently). Additionally, the Best Interest of the Child Statutes automatically place fit parents in the same group as unfit ones and subject them all to the best interest of the child legal standard, thus causing an equal protection over-inclusive violation (i.e., treats persons with different capabilities the same, and sweeps in more than it should). No contested divorce with children in Illinois can achieve a constitutional resolution under federal law where both parents’ rights are implicated, for the non-custodial parent’s rights are always denied, and the custodial parents’ are always enlarged without an evidentiary standard other than the discretion (i.e., best interests) of the trial court. The trial court stated: “This is not a case where a child is being taken from a parent. This is a case where the child will have the same two parents, when it is over, that the child started out with.” (S.R. Vol. 3: 103 lines 18-21). Yet, the trial court did just that, in that Brian is only allowed to now see his daughter 16% of the time, and he has no decision-making capability whatsoever. Brian asks this court: do you really believe that allowing Brian 16% of his daughter’s time, and taking away all of his other decision-making rights to his child, is really different from “a child being taken from a parent?” Contrary to the trial court’s claim, this IS a case where a child was taken from a parent, regardless of the privilege of 16% parenting time.
A statute, in and of itself, cannot trump the Federal Constitution. In this case, the so-called Best Interest of the Child Statutes are routinely utilized by the courts to effectively limit or reduce parental rights (i.e., personal liberties) because of divorce, by assigning custody when there is absolutely no finding that the parent is unfit. Lulay v. Lulay, supra, at ¶73; see also Regenold v. Baby Fold, Inc., 68 Ill.2d 419, at ¶51 (1977).
A statute that allows a judge to exercise “too much discretion in every case” or “unlimited discretion” is unconstitutional because it undermines the parent’s fundamental right to make decisions regarding the care and custody of the child (i.e., because the parent’s decision is no longer presumed to be in the child’s best interest). City of Chicago v. Morales, 527 U.S. 41, at ¶26 (1999). The Best Interest of the Child Statutes do not identify what is forbidden and what is permitted, nor do they identify any “standard of conduct” at all for that matter. Id., at ¶59. Therefore, they are “vague.” Village of Hoffman Estates v. Flip-Side, 455 U.S. 489, 498 (1982). The Best Interest of the Child Statute sallow the courts broad discretion to take over a child’s life like a thief and usurp parental rights. It is a statutory flaw when a statute “...places the best-interest determination solely in the hands of the judge.” Troxel v. Granville, supra, at 52.
The issue here is not who achieves/receives “custody.” The issue is that, under Illinois law, a parent can be deprived of their parental right to “custody” or responsibility of their child, temporarily or permanently, based solely on the whim of the courts, absent of proven criminal violent acts. By definition, any statute that limits the decision-making capability (i.e., fundamental right) of a fit parent is, on its face, unconstitutional because “no set of circumstances exists under which the [statute] would be valid.” Wickham v. Byrne, 199 Ill.2d 309, at ¶41 (2002).
In addition, a statute will be held unconstitutional if it is “breathtakingly broad.” Troxel v. Granville, supra, at 52. 750 ILCS 5/602 and related statutes that refer to the “best interest of the child” create an intolerable tension in the law because they allow the courts extremely broad latitude to make any “custody” decision, and almost any decision for that matter (e.g., what Brian can and cannot say to his daughter as per the Injunction), based on its own discretion, even if Brian adequately cares for his daughter, and without any showing that Brian is an unfit parent.
The Best Interest of the Child Statutes create significant interference on Brian’s fundamental rights and implicate his daughter’s welfare. Lulay v. Lulay, supra, at ¶64. Furthermore, the Illinois Supreme Court recently reiterated this opinion in its appellate review striking down 607(b)(1) and reinforced that State interference with fundamental childrearing rights is extremely limited, giving specific examples of where State interference is permitted. Wickham v. Byrne, supra, at ¶42.
C. Troxel v. Granville is broad in its application.
Though Troxel v. Granville, supra, was a case involving the wishes of grandparents against the fundamental rights of parents, the U.S. Supreme Court was crystal clear in its broad statement that “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”Id., at 67. Additionally, the U.S. Supreme Court spoke broadly that “[t]he liberty interest at issue in this case -- the interest of parents in the care, custody, and control of their children -- is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Id., at 66. They also broadly reaffirmed their decision in Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)that "[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Troxel v. Granville, supra, at 66. Discussing Prince v. Massachusetts, 321 U.S. 158 (1944), they again continued with their broad confirmation “that there is a constitutional dimension to the right of parents to direct the upbringing of their children. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Troxel v. Granville, supra, at 66. Nowhere did they state or imply that those decisions were only relevant within the context of third-party visitation. If anything, as they continued on with a plethora of other high Court decisions, they forcefully implied that these decisions, starting “[m]ore than 75 years ago,” applied in all situations. Troxel v. Granville, supra, at 66. The U.S. Supreme Court even broadly referred to the “decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child.” Id., at 69.
In fact, they ended their high-powered introduction with the broadest of generalizations: “In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Id., at 66. They then even summed it up once more in the broadest of terms: “[a]s we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a "better" decision could be made.” Id., at 72. Not once in any of their ruling did the U.S. Supreme Court imply that the application of these decisions should be applied only to the matter at hand. Contrarily, they made clear just the opposite.
The U.S. Supreme Court twice clearly characterized Troxel v. Granville, supra, as “nothing more than a simple disagreement between the Washington Superior Court and Granville concerning her children's best interests.” Id., at 67. The same relevant factors are manifest in the instant action, in that the court disagrees with a fit parent (Brian) concerning his child’s best interests. The court affords Brian “no deference” in determining the best interest of Samantha, as the “best interest of the child” standard “contains no requirement that a court accord the parent's decision any presumption of validity or any weight whatsoever.” Id., at 67. The U.S. Supreme Court was also very clear in identifying the Washington statute “breathtakingly broad” because it placed “the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent's estimation of the child's best interests, the judge's view necessarily prevails. Thus, in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests.” Id., at 67.
D. The only criterion for infringing on a parent’s fundamental right is fitness.
The U.S. Supreme Court precedence makes it clear that the Best Interest of the Child Statuteshave no chance surviving long-term. Every U.S. Supreme Court case dealing with fit parents and children and/or the purported “best interest of the child” standard makes this abundantly clear.
Brian and Laurie are both fit parents and Samantha was a happy and healthy child, as Laurie’s attorney confirmed on the second day of trial: “fitness is not an issue in this case.” (S.R. Vol. 3: 105 lines 2-4). The trial court even indicated that “I don't have the State alleging neglect or abuse or dependency.” (S.R. Vol. 3: 111 lines 1-2). (See also: “That the Husband testified that... Samantha has no adjustment problems and she has been thriving over the past 15 months.” (Judgment, R. Vol. 10: C2260 ¶17); “Factor 3: the Father has an excellent relationship with the Child Factor 4: the Child has no significant adjustment problems; the Child is thriving” (Judgment, R. Vol. 10: C2265); “That on adverse examination the Wife testified that she has no concerns that the Husband will not be able to provide for the Child’s basic needs, provide a proper home, food, proper education, or a safe environment. The Wife testified that she believes the Father loves the Child and the Child loves the Father and that the Child enjoys the time she spends with the Father.” (Judgment, R. Vol. 10: C2287 ¶71); “That on adverse examination the Wife testified that the Father “absolutely needs to be a participant in the Child’s life”, and the Wife stated, “You will always be Samantha’s father; I will always be Samantha’s mother. You will see her, speak to her, enjoy her, support her, share holidays with her, be a father to her.” The Wife testified that the Father’s relationship with the Child and the Child’s relationship with the Father “is strong and will continue to get stronger” because the Father is dedicated to being a father. The Wife testified that... if (the Father) is there for the Child then the relationship will grow.” (Judgment, R. Vol. 10: C2287 ¶72); “That the Wife testified that the Child is healthy, physically active...” (Judgment, R. Vol. 10: C2293 ¶95); “The Wife stated that her feelings changed when she recognized the importance of the Child seeing her Dad on a regular basis, frequently, with his participation...” (Judgment, R. Vol. 10: C2294 ¶97); “The Wife testified that the Husband’s strengths are that... he loves the child, he has good teaching skills, he is very animated and athletic, he teaches the Child athletic things.” (Judgment, R. Vol. 10: C2297 ¶111); see also Laurie’s testimony (e.g., S.R. Vol. 7: 92-102, 151-153; Vol. 9: 97 lines 9-14; see also Laurie’s attorney’s argument: Vol. 11: 54 lines 2-7).
Therefore, parental control has not faltered. Ergo, the State has no role as parens patriae. Santosky v.Kramer, supra, at 766 and footnote 17.
III. A rule with the force and effect of law that requires divulging information about oneself without probable cause is facially unconstitutional
As the trial court stated in response to Brian’s Motion in Limine:
“The parties cannot deny [the] Court financial data. Finances must be as close to the trial date as reasonable. Reasonable has some flexibility in it, but the Court needs current information that you both have to make informed decisions and financial records are indeed relevant.” (S.R. Vol. 2: 29 lines 3-8).
However, any court order or rule that requires the “compulsory production of a man’s private papers” without probable cause of something illegal, supported by oath or affirmation under penalties of perjury,“to forfeit his property, is within the scope of the Fourth Amendment to the Federal Constitution, in all cases in which a search and seizure would be; because it is a material ingredient, and effects the sole object and purpose of search and seizure.” Boyd v. United States, 116 U.S. 616, at ¶29 (1886). As clearly enunciated by the U.S. Supreme Court, “a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him,” is “totally different” from “a legitimate proceeding.” Id., at ¶29. Therefore, any Illinois court order or rule requiring as such is facially unconstitutional. “Whereas, by the proceeding now under consideration, the court attempts to extort from the party his private books and papers to make him liable for a penalty or to forfeit his property.” Id., at ¶29. In fact, in its decision, the U.S. Supreme Court called a similar act which “did not go as far” as the one declared unconstitutional as “obnoxious.” Id., at ¶29.The Discovery Rules and the Mandatory Disclosure Rules are of the same ilk.
There can be no question that a setting in which Brian lost custody rights to his daughter and rights to his property without criminal conviction constitutes a “setting[ ] in which [his] freedom of action is curtailed in [a] significant way.” Miranda v. Arizona, 384 U.S. 436, 467 (1966). As Boyd v. United States, supra, at ¶40, states clearly: “And we have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.” Yet, contrary to what the U.S. Supreme Court has specifically stated, Illinois uses the Discovery Rules and the Mandatory Disclosure Rules to compel individuals to be a witness against themselves regularly during and after divorce proceedings.
Pursuant to the Judgment, Brian has been ordered to annually provide copies of his federal and state tax returns, W-2 statements, and 1099s (hereinafter “Private Papers”). As Boyd v. United States, supra, clearly provides, the courts have no authority or jurisdiction to compel Brian to produce these Private Papers. No compelling reason (i.e., compelling state interest) exists for Brian to be required to turnover his Private Papers as part of or after a divorce proceeding. The State is purely using the implicated rules as a “fishing expedition” to circumvent Brian’s rights. The Fifth Amendment of the Federal Constitution, which applies to both criminal and civil trials (McCarthy v. Arndstein, 266 U.S. 34, 40 (1924); Miranda v. Arizona, supra, at 467), specifically bars the use of compelled testimony against individuals. In addition, verification of the Asset Disclosure Statement (i.e., the “13.3”) requires that individuals produce their personal books and records (or be held in contempt), which violates the Fourth Amendment of the Federal Constitution. The requirements to submit all the personal and financial data requested in and after divorce proceedings also violate an individual’s right to privacy under the Ninth Amendment. Griswold v. Connecticut, supra, at 495–496. Privacy is a fundamental right subject to review under strict scrutiny (see also section IV.C.).
Per Cook County Circuit Court Rule 13.3.1 (c),Brian is threatened with sanctions if he refuses to comply under the protection of the Fourth and Fifth Amendments of the Federal Constitution. Therefore, Brian is therefore forced to divulge this information against his will. The purpose of the Judgment’s order to produce federal and state tax returns, W-2 statements, and 1099s is to further extort Brian’s property should his financial situation improve. At no time was Brian told that he has the right to remain silent, that if he gives up the right to remain silent, that the Private Papers will be used against him and his property. These Private Papers are a “material ingredient” in Laurie’s and the State’s continued pursuits to extort Brian’s property. Brian is innocent, but is “confounded with the guilty” when he is forced to turnover these Private Papers against his will. Boyd v. United States, at ¶29.
IV. The child support statutes, maintenance statutes, and attorneys’ fees statutes are unconstitutional
A. The Wealth Transfer Statutes violate equal protection.
IN GENERAL: The courts have no authority or jurisdiction to “award” child support, maintenance, or attorneys’ fees, as the Wealth Transfer Statutes violate Brian’s right to equal protection of the laws, a right guaranteed by the Federal and Illinois Constitutions, in that the statutes subject Brian to burdens different from, and in excess of, those imposed on persons (parents or otherwise) in an intact marriage and/or non-related persons. While the legal relation between a husband and wife is altered by the entry of a decree of dissolution of marriage, the legal relation between each parent individually and the child is not so altered. A parent stands in the same relation to his or her child after dissolution as he or she did prior to dissolution. Similarly, the ex-spouses stand in exactly the same relation to each other (i.e., as non-related persons) and therefore cannot be treated differently. The trial court attempted to deny that Brian and Laurie would no longer be related after the divorce S.R. Vol. 3: 161 lines 1-22), which is obviously utter nonsense; that is the whole purpose of divorce!
A divorced, higher earning or more “financially able” ex-spouse is “singled out” and treated by the State very differently than the way the State treats a divorced, lower earning or “financially deprived” ex-spouse. The State requires the individual to pay child support, maintenance, and/or attorneys’ fees to the other party, while it gives them no like or “corresponding benefit.” Only against divorcing spouses “is such extraction made” (e.g., the State does not single out other financially able non-related persons or married parents), “and only in certain cases.” Therefore, a claim that all divorced parents or spouses are treated alike is not to draw a valid distinction. The implicated statutes are simply “imposing a penalty” upon a divorcing spouse for being a more financially able spouse. No one else is “punished.”
Though not related to divorce, the U.S. Supreme Court has explicitly stated this. Gulf, Colorado and Santa Fe Railway Company v. Ellis, 165 U.S. 150-162 (1897). In this 1897 attorneys’ fees decision, the U.S. Supreme Court stated clearly that “men possessed of a certain wealth” (i.e., “financially advantage[d]” using the court’s current language, Beyer v. Parkis, 324 Ill.App.3d 305, at ¶55 (2001)) CANNOT be subjected to paying attorneys’ fees for the reason of being “financially advantaged.” It is a “punishment.” It is not a “proper basis for the attempted classification.” It is an “incentive” to litigate. And, sure enough, as the U.S. Supreme Court knew over 100 years ago, the reviewing courts now openly agree and admit that most divorce litigation is completely out of control: In re the Marriage of Emily Auriemma, 271 Ill. App. 3d 68, at ¶38 (1994). “The legislature cannot give to one party in litigation such privileges as will arm him with special and important pecuniary advantages over his antagonist." Gulf, Colorado and Santa Fe Railway Company v. Ellis, supra, at 162. Yet, this is EXACTLY what the Illinois legislature has done. This is as clear as language can make it.
The Wealth Transfer Statutes violate Brian’s right to equal protection of the laws in that he suffers egregiously different burdens (without benefits) from Laurie who is similarly situated with respect to each other and/or their child (i.e., they are both in identically the same situation), as a divorce imposes on Brian a sum certain to be expended for his child and/or a non-related person. The Wealth Transfer Statutes do not treat all (soon-to-be) divorced ex-spouses and/or parents alike, as they discriminate between higher and lower wage earners, higher and lower asset holders, and custodial and non-custodial parents. However, even if the statutes treat all (soon-to-be) divorced persons alike (which they clearly do not), this is not the claim being urged here. This distinction, created by operation of the statutes, is one of the core elements of the laws being challenged. The rights at issue are of the most fundamental nature (e.g., the right to property). A (soon-to-be) divorced ex-spouse (i.e., non-related person) is treated by the State very differently than the way the State treats other non-related persons. A (soon-to-be) divorced parent is treated by the State very differently than the way the State treats other married parents. Similarly, a higher-earning, divorced ex-spouse, with or without more non-marital property, is treated by the State very differently than the way the State treats a lower-earning divorced ex-spouse, with or without less non-marital property. Regardless of the custody of the child, and regardless of one ex-spouse’s/parent’s income relative to the other’s, and regardless of the amount of time a parent is “allowed” to spend with the child, a divorced ex-spouse/parent is not situated differently with respect to the other and/or his/her child. Again, the claim that all divorced persons/parents are treated alike is not to draw a valid distinction. The Wealth Transfer Statutes, while facially content-neutral and generally applicable, are neither, in that they regularly and routinely result in unequal treatment of similarly situated persons. The statutes are not supported by nor narrowly tailored to serve a valid governmental interest, as their application inevitably results in imposition of an order against one divorced ex-spouse (i.e., non-related person)/parent to pay an arbitrary sum certain to the other when the State cannot and does not impose such a burden on a married parent or non-related person situated identically in relation to another parent or non-related person. Discriminatory intent is clear as, by the statutes’ very terms, courts can order only one party (e.g., the higher earning party, the party with greater assets) to pay the other. No rational basis (much less a compelling interest, as the fundamental right to property is implicated) justifies singling out one non-related person or parent (e.g., on the basis of financial ability) and imposing upon him/her a disproportionate financial burden while awarding the other non-related person or parent a windfall of benefits.
A state cannot single out a class of persons identified by traits (e.g., married or divorced, custodial or non-custodial, higher or lower wage earners, more or less assets, financially able or disabled), without a compelling interest such as a crime, and then deny them equal protection by imposing a burden on that class (e.g., that they must pay money to the other). Suspect classifications arise when legislation creates them where no “overriding statutory purpose” was shown (McLaughlin v. Florida, 379 U.S. 184, 192 and 194 (1964)) and they were not necessary to some “legitimate overriding purpose” (Loving v. Virginia, 388 U.S. 1, 11 (1967)). A state’s actions are even more blatantly discriminatory when the imposed burden benefits a similarly situated class, as it does in the case of child support, maintenance, and attorneys’ fees. The U.S. Supreme Court has held that a statute is unconstitutional on equal protection grounds for singling out a class of persons identified by a single trait, and then denying them protection across the board. Romer v. Evans, 517 U.S. 620, at ¶43-44 (1996).
CHILD SUPPORT: The challenged statutory provisions are functionally similar to the presumption of unfitness provision struck down by the U.S. Supreme Court in Stanley v. Illinois, supra. The implication of the Child Support Statutes is that the parent upon whom this burden is imposed would not otherwise “adequately” care for his or her child – that he would be derelict in his acknowledged duty of support and by logical extension unfit. The challenged statutes, while providing for a hearing, presume that the potential child support obligor will not support his children adequately and reasonably by establishing a “presumptive” adequate level of “support” without any proof of neglect or unfitness. 750 ILCS 5/505 is equivalent to the State of Illinois previously presuming an unwed father to be unfit and forcing him to “prove” his fitness, which the U.S. Supreme Court rightfully corrected based on equal protection. Stanley v. Illinois, supra. As the trial court indicated: “Parties cannot bargain away child support. You are not allowed to. If the parents don’t look out for what is good for their children, then the judge has to do it. You cannot bargain away child support, no matter what you call it, agreed order or anything else.” (S.R. Vol. 3: 28 lines 21-24, 28 lines 1-2).
The Child Support Statutes create a legal line-in-the-sand between married parents and those who have ceased to be or who chose not to be married. However, the U.S. Supreme Court has rejected such an artificial distinction in cases involving family relations. Glona v. American Guarantee Co., 391 U.S. 73, 75-76 (1968). The statutes operation is indistinguishable on any substantive basis from the legitimacy distinction for recovery for wrongful death struck down in this decision. The Child Support Statutes treat unmarried parents, especially the obligor, as having no right to determine the precise nature of the care and nurturing of their offspring, substituting instead the combined and tabulated wisdom of the State legislature and courts to establish that care, whereas the State does not interfere with the equivalent care and nurture of children provided by married parents without a showing of a compelling interest.
750 ILCS 5/505 is blatantly biased in that even its wording specifically allows courts to order only one parent (i.e., “either or both”) to support a child of the marriage, when both parents are obviously financially responsible for providing, and have a duty to provide, reasonable support for the child. Discriminatory intent is clear as, by its very terms, courts can order only one party (e.g., the non-custodial parent, the parent that makes a higher salary, the parent who receives less time/privileges) to pay child support. In Illinois, both parents have an obligation to support their children. No rationale justifies singling out one parent (e.g., on a basis of “custody,” financial resources, or parental time/privileges) and imposing upon him (and, on rare occasion, her) a disproportionate financial burden while awarding the other parent a windfall of tax-free income and other benefits. The State has created a classification of married and divorced parents. This is an arbitrary classification as there is no legitimate (much less compelling) overriding purpose, and is therefore suspect. The State has created a classification of “more financially able” and “less financially able” ex-spouses. This is an arbitrary classification as there is no legitimate (much less compelling) overriding purpose, and is therefore suspect. The State cannot assume that a divorced parent, simply by dint of the marital dissolution, will fail to support his children. The State cannot, consistent with due process requirements, merely presume that unmarried parents in general and Brian in particular, are unsuitable and neglectful parents, and will therefore fail or refuse (be “unsuitable” in the parlance of Stanley v. Illinois, supra, at 654) to provide the reasonable or necessary support. Parental unfitness must be established on the basis of individualized proof. “The State's interest in caring for Stanley's children is de minimis if Stanley is shown to be a fit father.” Id., at 657-658. Any other legislative scheme, other than one based on individualized proof of unfitness, creates an artificial class of parents who, by dint of marital status alone, are presumed “unfit” and in need of State coercion to discharge their obligations. The State cannot intentionally create a condition/class (e.g., non-custodial parent) and then impose a punishment/penalty on it (e.g., child support) without a compelling interest such as a crime (e.g., negligence).
Brian is not claiming that he does not owe a duty of support to his daughter, nor has he claimed that he does not wish to support his own daughter. Brian’s claim under the equal protection argument is that the State’s sum certain guideline child support treats him differently from other parents similarly situated with respect to their children without a compelling state interest.
MAINTENANCE: As a “statute based upon a legislative declaration of facts is subject to constitutional attack on the ground that the facts no longer exist,” the non-existence of the underlying facts of maintenance/alimony renders the Maintenance Statutes unconstitutional. Leary v. United States, 395 U.S. 6, 38 (1969). The present logic and purpose of maintenance is not clear or applicable to current conditions (i.e., the original intent and purpose no longer exist). Historically, alimony was specifically designed for the wife of a broken marriage who needed financial assistance, or to compensate women for past discrimination during marriage which left them unprepared to fend for themselves in the working world following divorce. Orr v. Orr, 440 U.S. 268, 279 (1979). Alimony was important historically because employment opportunities were limited to women after marriage. The primary “cost” of divorce for many women was the reduction in their human capital that resulted from the sacrifices made during marriage. The cost of the divorce and the resulting “debt” was a lifestyle similar to the one enjoyed during the marriage. Since the debt was tied to the dissolution of a marriage, it was logical for the debt to be repaid with periodic payments that could be modified and would end with remarriage or death. However, women now have significantly increased employment opportunities. Nevada Department of Human Resources v. Hibbs, 123 S.Ct. 1972, at ¶26 and 65 (2003). Historically, alimony was somewhat more relevant when courts could consider a party’s “fault.” The laws considered fault/criminalized abuse in alimony awards (i.e., a guilty spouse had to pay an innocent spouse). As 750 ILCS 5/504 states, Illinois no longer considers fault (i.e., “marital misconduct”) in a determination of maintenance.
As sex was removed, it is no longer known what the legislature is trying to accomplish by awarding spousal maintenance. Appellate courts have modified their decisions over the years in a flawed, but obvious attempt to justify the continued legislative action. The legislative intent of alimony was to support women only. In Re Fisher, 15 Ill.2d 139, at ¶42 (1958); Jackson v. Jackson, 34 Ill. App.3d 407, at ¶23 (1975); In Re Marriage of Workman, 89 Ill. App.3d 886, at ¶25 (1980). The history of the courts made it crystal clear that the legislative purpose of alimony was to support a wife. The whole structure conforms to this particular purpose. However, after Orr v. Orr, supra, in 1979, made it clear that family courts are to treat men and women equally, the State/courts merely removed sex from the statute and kept using the IDENTICAL UNCONSTITUTIONAL judicial decisions (e.g., “Byerly v. Byerly (1936), 363 Ill. 517, 525-26, 2 N.E.2d 898, 902; Gilmore v. Gilmore (1975), 28 Ill. App.3d 36, 38, 328 N.E.2d 562, 564” Bellow v. Bellow, 94 Ill. App.3d 361, at ¶44 (1981); “See Frank v. Frank (1975), 34 Ill. App.3d 957, 342 N.E.2d 404; Busby v. Busby (1973), 11 Ill. App.3d 426, 296 N.E.2d 585” Id., at ¶45; “See Jackson v. Jackson (1975), 34 Ill. App.3d 407, 339 N.E.2d 764” Id., at ¶46) to support their findings, even though the original intents specifically stated in those judicial decisions (i.e., support of wife and discrimination of women) were no longer applicable. Evidence of legislative intent (i.e., support of wife and discrimination of women) and the underlying facts of the presumptions are no longer applicable nor apply in the award of maintenance, and neither are the purported supporting cases. People v. Pullen, 192 Ill.2d 36, at ¶19 (2000); Consumer Product Safety Commission et al. v. GTE Sylvania, 447 U.S. 102, 108 (1980).
ATTORNEYS’ FEES: Though Gulf, Colorado and Santa Fe Railway Company v. Ellis, supra, should be all that this court needs to immediately rule the Attorneys’ Fees Statutes unconstitutional,infirmities abound elsewhere as well. “Leveling the [financial] playing field” (Beyer v. Parkis, supra, at ¶54-55) by awarding attorneys’ fees in a civil suit of two related or non-related persons is not a legitimate government interest, to say nothing of a compelling one as it infringes on the fundamental right to property. Contrary to what is stated in Beyer v. Parkis, supra, the State may not discriminate (i.e., “limit[ ] the ability” or “prohibit[ ] a financially advantaged party” by restricting their fundamental rights) for the sole reason of being in a “financially advantageous position.” Id., at ¶55. Even if the award can later be revoked (Id., at ¶55), the State may not discriminate in the first place. The courts even admit that they and the State are discriminating against the “financially advantageous position/party.” Id., at ¶55. “Leveling the playing field by equalizing the parties’ litigation resources” for the “State’s public interest in the institution of marriage, and by extension, the State’s interest in ensuring the fairness and integrity of all proceedings related to dissolution” (Id., at ¶62) is not a legitimate government interest, much less a compelling one as to discriminate and deprive a person their fundamental right to property. The State may not enter the private realm of family life. Griswold v. Connecticut, supra, at 495-496. An award of attorneys’ fees is a punitive award ordered by the government and directly applied to the “financially advantageous” party for the sole reason of being financially able without a showing of tort, compensable injury, or damages. Discriminatory intent is clear as, by its very terms, courts can order only one party (e.g., the “financially advantaged” party) to pay the other. No rational (much less compelling) basis justifies singling out one spouse/ex-spouse/non-related person (on the basis of financial ability) and imposing upon him/her a disproportionate financial burden while awarding the other a windfall of benefits ”...when they were both in identically the same situation.”Chicago & Northwestern Railway Company v. NYE Schneider Fowler Company, 260 U.S. 35, 40 (1922).
In fact, under the statutes, Brian is prejudiced for the sole reason of personally choosing not to use an attorney (i.e., appear Pro Se), in that his legal fees are reduced and he therefore is assumed to have a greater financial ability to pay. Therefore, by every sacrificial action Brian takes to reduce his own personal expenses for his own benefit, which is a private and “personal choice,” he puts himself at greater risk and injury of paying a larger portion of Laurie’s attorneys’ fees.
SUMMARY: No reasonable (much less compelling) difference exists that one spouse/ex-spouse should have an immediate or perpetual claim on the current or future earnings/assets of the other, or that one spouse/ex-spouse should be required to meet the current/future financial needs of the other (especially after the marriage has ended). Child support, maintenance, and attorneys’ fees are nothing more than punitive awards (without any showing of fault, tort, compensable injury, or damages) of an arbitrary reallocation of current/future income/assets, with the burden, punishment, and harm imposed on the higher income spouse/ex-spouse, spouse/ex-spouse with more assets, or intentionally created non-custodial parent. Any transfer of income/assets from the higher to the lower income/asset person during or after dissolution just because they are/were married is highly arbitrary. In addition, this transfer can be awarded by the courts without any regard for marital conduct. One party is therefore burdened and injured with child support, maintenance, and/or attorneys’ fees, without a corresponding privilege or benefit. Any award is essentially a penalty and harm on the higher income/asset spouse/ex-spouse for the sole reason of being the higher wage/asset earner (e.g., if one spouse has surplus income, additional maintenance may be justified; In re Marriage of Fields, 288 Ill.App.3d 1053, at ¶31 (1997)). A difference in incomes/assets during or after divorce alone is not a rational basis for compensation between ex-spouses. People have different incomes for a variety of reasons, many of which have nothing to do with their marriage (e.g., intelligence, diligence, taking riskier vs. more comfortable job options, want of personal lifestyle).
B. The Wealth Transfer Statutes violate due process.
IN GENERAL: The Federal Constitution provides that no state may “deprive any person of life, liberty or property without due process of law.” Protection from arbitrary state action is the very essence of substantive due process. An individual’s labor is considered his personal property, and the wages from this labor are considered property. “It has been well said that 'the property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable.” Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746 (1884). Therefore, Brian’s labor and wages are considered and must be protected as a fundamental right.
In the situation of an intact marriage, the State lacks any interest, legitimate or sufficiently compelling, to permit it to enact laws that would dictate a sum certain (i.e., reallocation of future income and/or assets) to be used for or directed to the benefit of a child, a non-related person, or a spouse. Those decisions lie strictly within the discretion of the parents/spouses/non-related persons. The Wealth Transfer Statutes violate Brian’s right to due process in that they impose a sum certain “payment” in divorced families when the State has no ability to dictate a sum certain in married families and/or non-related persons. The State’s actions under these statutes are therefore arbitrary and constitute a capricious exercise of governmental power.
Even though “awards” of child support, maintenance, and attorneys’ fees are not required, these arbitrary, injury-inflicting powers bestowed by the legislature on the judiciary to forcefully take the personal property of one related or non-related person and give it to another purportedly for the “best interest of the child” and/or for a perceived need to “equalize economic conditions” (e.g., for the purpose of a continuation of “social obligations” (In re Fisher, supra, at ¶42), to “level the playing field” (Beyer v. Parkis, supra, at ¶54)) are not legitimate or compelling state interests, regardless of whether two people are spouses or ex-spouses, related or not related, or custodial or non-custodial. The right to property is fundamental. It is not enough for the courts to contend that the purposes are to address critical state interests. The very essence of the heightened standard of review of strict scrutiny is to prevent individuals from being victimized by arbitrary action and having their fundamental interests infringed by a state. The Fourteenth Amendment, in essence, protects a state’s citizens from forced obeisance to whimsical and capricious state actions. In fact, the discussion and explicit language used in Beyer v. Parkis, supra, at ¶54, to protect this fraud directly contradicts the U.S. Supreme Court’s explicit wording when they struck down Illinois’s attempt to deny adequate appellate review to the poor. There can be no question that the State does not have the “power” to take property from one person to give to another in order to “equalize economic conditions,” Griffin v. Illinois, 351 U.S. 12, 23 (1956)which is EXACTLY what the State does here, and which the courts readily admit (Beyer v. Parkis, supra, at ¶54). The court may not use intermediate scrutiny, though even using intermediate scrutiny, the statutes must fail. The statutes are not narrowly tailored to support critical state interests, as they are regularly applied to compensate a divorced ex-spouse from the other for a lost standard of living that, according to the appellate courts, she is “entitled to” (e.g., Chapman v. Chapman, 285 Ill.App.3d 377 at ¶42 (1996)). Providing a child or a divorced ex-spouse an equal standard of living, or compensating a divorced ex-spouse for a lost standard of living (e.g., In Re Marriage of Marie R. Courtright, 185 Ill. App. 3d 74 at ¶22 (1989)), or “leveling the playing field” (e.g., Beyer v. Parkis, supra, at ¶54-55) are NOT critical state interests, and the State has no authority or duty “to correct or cushion” (Griffin v. Illinois, supra, at 23) these situations.
No State law exists that defines what standard of living, financial independence, or income a person (married, divorced, or otherwise) is “entitled to.” (Chapman v. Chapman, supra, at ¶42). These outcomes are left to individual opinions and resulting decisions. The State has no, and cannot have any, legitimate interest in rewarding or penalizing these individual opinions and decisions, especially with someone else’s property. Therefore, the “relevant factors” are arbitrary. A statute is “void for vagueness” if its prohibitions are not clearly defined, or if explicit standards are not provided for those who apply them. Village of Hoffman Estates v. Flip-Side, supra, at 498.
For example, as the trial court confirmed: “[t]he child support statute doesn’t have any prohibitions.” (S.R. Vol. 3: 185 lines 8-9). According to the trial court’s flawed logic:
“So, sir, you don’t need to know what it is you should do not to pay child support. You don’t need a statute to tell you that. You do need a statute that tells you what you don’t do to stay out of jail. And the case you cited is one where Mr. Morales or Ms. Morales, whoever it was, was charged with a crime or even convicted of a crime and didn't have the slightest idea why. That's a vague law. This one is not vague.” (S.R. Vol. 3: 186 line 24, 187 lines 1-8).
Well, Brian also does not “have the slightest idea” why his liberties to property and his daughter have been revoked. In fact, if that were not enough proof to immediately dispose of the implicated statutes, the U.S. Supreme Court also held that a statute is void only if it is so vague where “no standard of conduct is specified at all.” Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971). All implicated statutes throughout this pleading specify no standard of conduct. This is as clear as language can make it.
The Merriam-Webster dictionary defines arbitrary as “depending on individual discretion (as of a judge) and not fixed by law.” There exists no factual basis for the amount or degree of deviation from the child support guidelines (hereinafter “Guidelines”), the maintenance factors, or the attorneys’ fees factors, other than the courts’ arbitrary opinions (e.g., In Re Marriage of Simmons, 87 Ill. App.3d 651, at ¶32 (1980)). The Wealth Transfer Statutes are irrational and unreasonable statutes, which impose irrational and unjustifiable injuries on the pristine exercise of protected rights secured by the Constitution. Because they are irrational and unreasonable, their application violates the due process clause of the Federal and Illinois Constitutions. A broad set of factors is used in determining the amount and duration of “awards” and “...the trial court is not limited to the factors in the governing statute” (e.g., In re Marriage of Mohr, 260 Ill.App.3d 98, at ¶70 (1994)). No rational (much less compelling) logic exists as to why one non-related person should finance another’s “needs” while a marriage is ending or after a marriage has ended. This is true even if the factors (e.g., Guidelines in the case of child support) are subject to modification at a hearing. A sliding scale of obligations to support a child or non-related person based on the other’s income is not a legitimate or compelling state interest, regardless of whether the people are married or divorced, custodial or non-custodial. Though the court can claim that it does not “presume” a child (or, more properly, a divorced ex-spouse) needs child support, or that it does not “presume” that a divorced ex-spouse needs maintenance or attorneys’ fees, or that it makes its determination of financial support based on the factors/”facts,” there are no relevant or rational standards that constitute what the “facts” are being compared to, except other judicial decisions that are completely based on its own arbitrary/personal opinions in the first place. Any attempt to use such logic is purely circular reasoning and therefore not rational. The statutes do not identify prohibited behavior or unlawful conduct (e.g., nowhere do the statutes explicitly state what “unlawful conduct” Brian must avoid in order to avoid paying child support, maintenance, and/or attorneys’ fees to Laurie). This is unconstitutionally vague and, therefore, each “enactment is void.” Grayned v. City of Rockford, 408 U.S. 104,108-109 (1972). There exists no factual basis or reasons for the amount or degree of deviation (nor how to apply the deviations) within the factors, other than the courts’ arbitrary opinions. Trial courts have tremendous latitude for variation, with no review of how that latitude is being exercised and whether it is being used to achieve results that are fair or not.
CHILD SUPPORT: For child support guidelines, as described in Title 45 CFR 302.56, the intended purpose is to establish an “economic[ally]” “appropriate child support award,” and is the State’s intent for the Guidelines by the Supremacy Clause (Article VI, Paragraph 2) and related case “law.” Illinois’s Guidelines do not award economically appropriate child support. A rational relationship for the Guidelines must include a rational economic basis. Specifically, the Guidelines must not be arbitrary. Substantive due process guarantees are violated if the questioned statute or a part thereof is a “patently arbitrary classification utterly lacking any rational justification” (Weinberger v. Salfi, 422 U.S. 749, 768 (1975)) or lacks“a fair opportunity to repel it.” Manley v. Georgia, 279 U.S. 1, 6 (1929). The Child Support Statutes further violate Brian’s right to due process in that they impose an arbitrary burden on Brian to “support” his daughter which bears no rational relation to the actual cost of supporting her.
Also, as per Title 45 CFR 302.56, “the State must provide that there shall be a rebuttable presumption...” There are no baseline components to the Guidelines. It is not clear what can be rebutted, therefore they are arbitrary and also a due process violation. Current Guidelines, according to federal regulations, should be rebutted if it is shown that the presumptive award is unjust and inappropriate. If the case before the court does not fit with the economic assumptions underlying the Guidelines or if the economic assumptions are flawed, then such a showing rebuts the presumption. The Guidelines do not take into account the large tax-related child cost offsets the custodial parent receives. Not sharing the child-related tax benefit violates equal protection, in that it provides an extraordinary benefit for the custodial parent. The Guidelines do not take into account the other parent’s income. The presumptive child support award does not vary with family income – only obligor income. This is not rational and violates equal protection. The Guidelines ignore which parent actually incurs the child costs. Without examining which parent incurs what costs, an economically appropriate award cannot be determined. Child costs (and then some) of only one parent (e.g., custodial) are covered by the Guidelines. Similar costs incurred by the other parent (e.g., non-custodial) do not receive similar consideration. Yet, parents are similarly situated when child costs are incurred by either parent. Each parent has an equal duty to provide financially for the children. The Guidelines do not take into account that two households are being supported (i.e., each parent’s household), that intact family standards of living cannot be maintained, and that the award is being spent in a single-parent household. 750 ILCS5/505 allows the courts to consider “the standard of living the child would have enjoyed had the marriage not been dissolved” as a basis for its child support award. However, a standard of living comparison is not a comparison of child costs.
MAINTENANCE AND ATTORNEYS’ FEES: There are no baseline components to or precise formulas for determining alimony or attorneys’ fees, and the courts are not even limited to the factors listed in the statutes. It is not clear what can be rebutted, therefore they are arbitrary. Alimony and attorneys’ fees factors do not give any guidance on how to apply the factors. Under the statutes, “needs” are measured and defined based solely on the whim/personal opinion of the courts, whom have “wide latitude,” using criteria such as the standard of living enjoyed by the parties during the marriage, and is not even limited to the factors in the statutes (e.g., see In Re Marriage of Simmons, supra, at ¶32; In re Marriage of Harlow, 251 Ill.App.3d 152, at ¶44 (1993); In re Marriage of Mohr, supra, at ¶70). No criteria or guidance exists for how much alimony or attorneys’ fees to award, for how long alimony is awarded, for how alimony is modified, for why it can be modified, or whether it remains after the ex-spouse remarries.
In and of itself, “streamlining... [b]y eliminating the hurdle of an evidentiary hearing in most [attorneys’ fees] cases” (as Beyer v. Parkis, supra, at ¶55, puts it) is a blatant and direct violation of the right to due process. Procedural due process requirements must allow a party the opportunity for an evidentiary hearing when dealing with fundamental rights, such as the right to property. The explicit denial of an evidentiary hearing as “prompt efficacious procedures” cannot be enforced through discretionary efforts when dealing with fundamental rights. Stanley v. Illinois, supra.
C. The Wealth Transfer Statutes violate privacy.
IN GENERAL: While the source of the right to privacy has been held to originate in varying constitutional provisions, it has been long recognized to apply to “family” concerns whether the family exists within the confines of marriage or not. Privacy is a fundamental right subject to review under strict scrutiny. The right to privacy was denominated by the U.S. Supreme Court to be a liberty, and therefore subject to review under strict scrutiny, with a long history of high Court sustenance and which found its source and its protection in the Due Process Clause of the Fourteenth Amendment. Roe v. Wade, 410 U.S. 113, 152 (1973). Privacy as a concept appears to encompass at least two different but related aspects. First, it relates to the right or the ability of individuals to determine how much and what information about themselves is to be revealed to others. Second, it relates to the idea of autonomy, the freedom of individuals to perform or not perform certain acts or subject themselves to certain experiences. Whalen v. Roe, 429 U.S. 589, 599 (1977). This second aspect is the aspect which Brian propounds here. (The first aspect applies to section III). In a case involving private possession of pornography, the U.S. Supreme Court enunciated the autonomy aspect of privacy, which is manifest in the instant action. Stanley v. Georgia, 394 U.S. 557, 564 (1969). If the conditions of our Federal Constitution sought to protect man’s right to his “material things,” “beliefs, thoughts, and emotions” (i.e., his right “to be let alone” from the unwarranted intrusions of government (Id., at 564)), then that protection must extend ineluctably to the self-determination of how and in what manner man shall raise his own children, and in what manner man shall spend and utilize his property on others (regardless of whether he is related or not related to them). The government may not force/inject itself into an individual’s private life, under the guise of encouraging fairness, merely by declaring a law that designates it has the authority to do so. This behavior alone constitutes an affront on the Fourth Amendment.
CHILD SUPPORT: As the trial court pointed out, according to Illinois law, whether a child is in any kind of danger is irrelevant to an award of child support. (S.R. Vol. 9: 228 lines 10-19). The Child Support Statutes violate Brian’s right to privacy in that they require Brian to pay an amount to Laurie in excess of that required to meet his daughter’s basic needs, and therefore the statutes impermissibly interfere with parental decisions regarding financial expenditures on children. The Guidelines are an unnecessary interference by the government. Any government mandate beyond basic child costs interferes with this right to privacy. The Child Support Statutes usurp from Brian his right to self-determination in the raising and caring for his daughter, which intrusion serves no legitimate public interest, since he has never been accused or convicted of failing to reasonably and adequately care for his child. Once the economic necessities of a child are covered, the government has no right to say how much money should be spent for the care of children. By requiring a parent to pay an amount in excess of that required to meet the child’s basic needs, the Guidelines impermissibly interfere with parental decisions regarding financial expenditures of children. Moreover, the statutes violate Brian’s right to privacy in that they require a sum certain in support of his daughter when there is a less intrusive “Failure to Support” law existing in Illinois which provides for felony conviction and punishment for failure “to provide for the support and maintenance of his or her child or children under the age of 18 years...” (750 ILCS 16/15). The Child Support Statutes interfere with a married or divorced parent’s right to raise one’s children without “unnecessary” government interference.
MAINTENANCE AND ATTORNEYS’ FEES: The Maintenance Statutes and Attorneys’ Fees Statutes are an unnecessary interference by the government. Any government mandate that can force Brian to give his property to Laurie on the flimsy grounds that she is “entitled” to it (e.g., Chapman v. Chapman, supra, at ¶42), she “needs” it (e.g., In Re Marriage of Simmons, supra, at ¶32), or to “level the playing field” (e.g., Beyer v. Parkis, supra, at ¶54) interferes with his right to privacy. The Maintenance Statutes and Attorneys’ Fees Statutes usurp from Brian his right to self-determination in supporting himself. The government has no right to say how Brian should spend his money, especially on someone he will be (or is) no longer related.
D. The Wealth Transfer Statutes are unconstitutional taking of property.
IN GENERAL: The Wealth Transfer Statutes are unconstitutional per se and as applied in that they constitute an illegal taking in violation of Article 1, Section 15 of the Illinois Constitution, which forbids eminent domain’s exercise for private use. The statutes impose an award within them against Brian for the purpose of transference to his ex-wife, his daughter, or his ex-wife’s attorneys exclusively for her/their discretionary use. This constitutes a private taking for a private use. The challenged statutes compel a private taking for private use (i.e., an individual, rather than the community) – without the payer’s consent or just compensation to payer - in that the sum certain that is extorted and extracted from Brian pursuant to the statutes is transferred to Laurie and/or her attorneys, which defies the criteria for determining a public use. Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 304 Ill.App.3d 542, ¶27-34, 62, and 82 (1999).As if that should not be clear enough, the U.S. Supreme Court has made it clear that“[n]o court... would hesitate to adjudge void any statute declaring that “the homestead now owned by A should no longer be his, but should henceforth be the property of B.” Chicago, Burlington and Quincy Railroad Company v. Chicago, 166 U.S. 226, 237 (1897). Yet, this is EXACTLY what the State does when implementing these statutes. Since Brian is no longer married to Laurie, the transfer of assets to a stranger-at-law/non-related person constitutes the government forcing Brian to assuage and offset Laurie’s obligations. If Brian fails to reasonably support his daughter, he should be criminally prosecuted. Otherwise, the State has no claim upon his property.
The Wealth Transfer Statutes are unconstitutional per se and as applied in that they constitute an illegal seizure of property in violation of the Fourth Amendment of the Federal Constitution. Brian’s individually-earned financial compensation and rewards for past, present, and future decisions and actions not related to the marriage are his property alone. The government is not entitled to possession of Brian’s property, to allocate as it pleases. Brian has a right to feel secure that rewards he earns based solely on his own volition are protected from unwarranted government intrusion. Brian is not a servant for social goods, however large and valuable the State may consider them to be. ”Giving the initial carrier its day in court does not save the statute, as no provision for hearing will support a statute that takes the property of A to pay the debt of B.” Atlantic Coast Line Railroad Company v. Riverside Mills, 219 U.S. 186, at ¶10 (1911). The Fourth Amendment, at its most fundamental level, is designed to protect people from the government. It is therefore no great leap to suggest that it should be interpreted in a manner favorable to the enhancement of individual liberty. Any State contention that it has proper authority of law to take Brian’s property and give it to someone else for their private use (e.g., in its desire to maintain “social obligations” (In re Fisher, supra, at ¶42) or “level the playing field” (Beyer v. Parkis, supra, at ¶54)) therefore directly contradicts the protection from government interference intended. In fact, the reviewing court in Beyer v. Parkis, supra, at ¶56 readily admits the State is taking non-marital property for private use, and readily admits it is arbitrary based solely on the judge’s whim.
CHILD SUPPORT: Additionally, the Child Support Statutes are unconstitutional per se and as applied in that they constitute an illegal taking in violation of the Federal (Fifth Amendment) and Illinois (Article I, Section 15) Constitutions because the statutes impose an award under the Guidelines within them against Brian for the purpose of the State continuing to receive federal funds under Title 45 CFR 302.55 and related federal code. This constitutes a taking of private property for public use without just compensation. Sum certain Guideline child support in non-intact families falls squarely within the realm of public interest and public use. Guideline child support was enacted by the State legislature for the public weal; therefore, it serves a putatively “public” use, for which Brian’s property is legislatively confiscated to satisfy. Sum certain Guideline child support taken from Brian results in direct pecuniary gain to the State. Additionally, the more the State takes from Brian, the more the State gains financially. Title 45 CFR 302.55 provides for Federal “incentive payments” to the State and its political subdivisions for “costs of carrying out the activities under the State plan . . .” to collect ordered sum certain amounts of child support. Courts deny the right to property when private property is taken under the direction of the state for public use. Chicago, Burlington and Quincy Railroad Company v. Chicago, supra, at 241.
E. The Wealth Transfer Statutes constitute a threat of imprisonment for debt.
The Wealth Transfer Statutes are unconstitutional per se and as applied in that they constitute an ongoing threat by the State of imprisonment for debt in violation of the Illinois Constitution (Article I, Section 14). The statutes denominate the duties as an obligation. Inherent in that obligation is that money is due and payable, which is the definition of debt. If Brian opposes the sum certain ordered (e.g., believing that his child would be adequately cared for for less), he subjects himself to the certainty of imprisonment. While the courts denominate this action as “contempt of court,” the outcome is indistinguishable from imprisonment for debt.
F. The Maintenance Statutes and Attorneys’ Fees Statutes are unconstitutional as they constitute involuntary servitude.
Maintenance and attorneys’ fees constitute involuntary servitude in that they allow, based on “need” and “ability,” one non-related person complete use and enjoyment of another non-related person’s property, against his will, which falls within the purview of the Thirteenth Amendment. The difference between a slave and a free person is that a free person owns what he produces and a slave does not. According to Merriam-Webster’s dictionary, involuntary means “done contrary to or without choice,” and servitude means “a right by which something (as a piece of land) owned by one person is subject to a specified use or enjoyment by another.” In the words of Hodges v. United States, 203 U.S. 1, 16-17 (1906), “this is as clear as language can make it.”
V. The order permanently enjoining Brian was unconstitutional
The circuit court violated procedural due process by issuing a permanent injunction/prior restraint when Brian clearly had insufficient notice (i.e., approximately 18 hours before the alleged hearing). Brian had not even had proper time to file a responsive pleading prior to the hearing. Additionally, the circuit court violated procedural due process by issuing a permanent injunction without giving Brian a meaningful opportunity to be heard. Pfeffer v. Lebanon Land Development Corp., 46 Ill. App.3d 186, at ¶32 (1977). Also, during the alleged hearing on June 11, 2004, Brian was significantly curtailed and later completely cut-off in presenting his defense and argument. This, in combination with the circuit court’s clear harassment and intimidation of a Pro Se litigant was a blatant violation of procedural due process. For example, the circuit court: (1) told Brian not to object and interrupt, and refused to rule on Brian’s first objection (S.R. Vol. 2: 145 lines 7-13); (2) told Brian that he could not present his facts (S.R. Vol. 2: 145 lines 19-22); (3) appeared to ignore Brian as he was speaking, so blatantly that it prompted his question to the circuit court as to whether it was even listening (S.R. Vol. 2: 147 line 22, 148 lines 1-3); (4) gave Brian a one minute warning that it was going to cut his argument off, after what had likely been only about two minutes into Brian’s argument (S.R. Vol. 2: 150 line 22, 151 lines 1-4); (5) counted down the number of seconds Brian had to present his argument, after Brian stated he had a number of other things to present to the court (S.R. Vol. 2: 151 lines 1-11); (6) refused to respond to or rule on Brian’s second objection (S.R. Vol. 2: 151 lines 5-11); (7) refused to allow Brian to present his complete argument (S.R. Vol. 2: 151 lines 1-20); (8) refused to allow Brian to speak (S.R. Vol. 2: 152 lines 21-22, 153 lines 1-3). “The procedural aspects of due process and equal protection of the laws require that a person be given notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the case.” Nye v. Parkway Bank & Trust Co., 114 Ill. App.3d 272, at ¶12-14 (1983). One of the contributing factors to the lack of due process in this case is stated clearly: “Not only was there an arbitrary time limit put on the proceeding...” Id., at ¶19.
Continuing its disregard for procedural due process, the circuit court issued a permanent injunction without affording a trial on the merits. (R. Vol. 10: C2323-2324). Brian should have been afforded the opportunity to proceed to a trial, and a trial court errs when it enters a permanent injunction after a preliminary injunction hearing, without a trial on the merits. Lily of the Valley Spiritual Church v. Sims, 169 Ill. App. 3d 624, at ¶31-33 (1988). At no time did the circuit court indicate that the matter on the call was a trial on the merits. Under these circumstances, the hearing must have been for a preliminary injunction, which is confirmed by Laurie’s use of 735 ILCS 5/11-101. Electronic Design & Manufacturing v. John Konopka, 272 Ill. App. 3d 410 (1995).
It is hornbook law that a court will not issue an injunction unless there is “clear,” “actual,” and “substantial” injury. Triangle Sign Co. v. Randolph & State Property, 16 Ill. App.2d 21, at ¶19-20, 26-27 (1957). Laurie’s affidavit, which appears was never even actually filed with the court,[2] states in ¶8 that she believes “...Samantha’s mental, moral, and emotional health are seriously endangered by remarks such as Brian is making to Samantha and by his threat to continue to make such remarks to Samantha for the rest of his life.” Clearly, this one statement, even if its supporting facts in the rest of the affidavit had proven to be true, does not “clearly and distinctly show that a substantial” and/or “actual” and/or “great” “injury will be sustained.” The testimony did not demonstrate an immediacy of threatened harm irreparable enough to necessitate the issuance of a permanent injunction. Further, Laurie’s amended petition[2] cites 735 ILCS 5/11-101as its legal basis for requesting the court’s involvement. However, 735 ILCS 5/11-101, titled Temporary Restraining Orders, only provides authority for a temporary restraining order, not a permanent injunction. The Injunction cites no statutory authority. Therefore, the circuit court issued the Injunction without proper statutory authority. It is clear that Brian was intentionally treated differently from others similarly situated (i.e., Laurie) and there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Additionally, the permanent injunction was overly broad, in that it prevents Brian from exercising his fundamental rights – specifically his liberty interest in the care and control of his daughter and his right to speak freely to her. Lily of the Valley Spiritual Church v. Sims, supra, at ¶35; Troxel v. Granville, supra, at 66-67. The circuit court based her prior restraint, however, not on credible evidence of harm or danger or even the imminent risk of harm or danger, but on the flimsy ground (i.e., three statements explaining why Brian could not see Samantha as much as he used to anymore) of what the circuit court determined to be the “best interest of the child,” which cannot “...withstand constitutional scrutiny” Kemner v. Monsanto Co., 112 Ill.2d 223, at ¶54 (1986).
The circuit court’s Injunction does not even indicate a finding that Samantha and/or Laurie have been harmed in any way. (R. Vol. 10: C2323-2324). However, this is a constitutionally impermissible infringement of Brian’s substantive due process rights. Troxel v. Granville, supra, at 66. Regardless of ANY statements Brian made to his daughter, the U.S. Supreme Court noted in Parham v. J.R., supra, at 603, that “[s]imply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.”
VI. Laurie and her attorneys committed perjury
Laurie’s attorney stated in her closing argument: “Nobody knows the truth...” (S.R. Vol. 11: 73 line 19). The Illinois perjury statute (720 ILCS 5/32-2), Illinois Supreme Court Rule 137, and 735 ILCS 5/1-109 suggest that finding the truth is critical. Evidence of perjury, allowance of perjury, and the refusal to appropriately sanction for perjury against Laurie and her attorneys Dorene Marcus (hereinafter “Ms. Marcus”) and David Ainley (hereinafter “Mr. Ainley”) of the law firm Davis, Friedman, Zavett, Kane, MacRae, Marcus and Rubens are a prejudicial basis for decisions of the circuit court. On July 2, 2003, upon Brian’s assertions of perjury, the circuit court made comments including “I don’t understand how [perjury] fits” (S.R. Vol. 5: 231 line 20), that it wanted to hear how to divide personal property and “...that has nothing to do with perjury” (S.R. Vol. 5: 231 line 24), that “perjury is not an issue” (S.R. Vol. 5: 232 lines 6-7 and again on line 13), that “there’s no reason to [present fraud and perjury evidence]” (S.R. Vol. 5: 233 line 22), and “[f]raud and perjury are not trial issues” (S.R. Vol. 5: 243 lines 14-15; see also 245 line 4; Vol. 10: 67 lines 3-5 and lines 15-16). Additionally, on July 10, 2003, the circuit court commented that attacking the credibility of the witness related to personal property was a “waste of time” (S.R. Vol. 8: 38 lines 17-23) and that “credibility doesn’t have any value at all” (S.R. Vol. 8: 40 lines 6-13; see also 40 line 24 and 41 line 1). Upon awarding the trunk in the master bedroom (not the guest room) to Laurie on July 10, 2003 (S.R. Vol. 8: 56 lines 3-24, 57 lines 1-22), which had an estimated value of $1,000 (S.R. Vol. 8: 53 lines 22-23), the circuit court stated that Brian’s reasoning for wanting the trunk made no sense at all (i.e., “Just because she agreed to it is not a good reason” (S.R. Vol. 8: 57 line 17-18)). How is it possible that a judge, who is supposed to search for the truth, uphold the law, and protect rights, can be allowed to openly pressure a litigant (no less a Pro Se litigant) to back down from presenting clear-cut evidence of perjury (e.g., see S.R. Vol. 10: 84-86) and make the claims that she did?
Ignoring perjury abandons the ordinary task of trial courts to sift true from false testimony, and abandons the sole ultimate objective at trial. In the Matter of Michael, 326 U.S. 224, 227 (1945). A court has no authority to ignore perjury. In fact, assuming arguendo that perjury is ignored, failure to report a felony, of which a judicial officer becomes aware, creates an incident of misprision of felony, which itself is a felony. Basing activities and actions on known perjury (such as issuing court orders based on known false testimony) places a judge in the position of an accessory after-the-fact. Notwithstanding any judge’s claim of immunity, ignoring duties related to taking action against perjury is not a judicial function, duty, job, or responsibility.
In blatant defiance of the clear words of ¶E.2 of the Agreed Interim Order, Laurie and her attorneys refused to turnover the personal property items in the Agreed Interim Order allocated to Brian, which directly resulted in significant litigation. On November 4, 2002, Brian sent an e-mail to Laurie with the Agreed Interim Order attached (Pl. Ex. FFFFF) indicating that he was requesting a time to pick-up the items allocated to him per the Agreed Interim Order. On November 21, 2002, Ms. Marcus refused to turnover Brian’s property per the Agreed Interim Order (Pl. Ex. QQQQ). On that same day, and upon Laurie’s attorney’s clear refusal to turnover Brian’s remaining personal property allocated to him per the Agreed Interim Order, Brian’s previous attorney filed a Motion for Turnover of Personal Property (Pl. Ex. NNNN).
A. Statements
Laurie testified on July 10, 2003 that an agreement over personal property WAS reached between Brian and Laurie (S.R. Vol. 8: 33 lines 13-17):
Brian: "Okay, did you and I eventually come to an agreement over the personal property the major personal property that you would get and the major personal property that I would get?"
Laurie: "Reluctantly, but yes." (hereinafter “Statement 1”)
Laurie testified on July 10, 2003 that the Agreed Interim Order WAS NOT the agreement reached between Brian and Laurie regarding personal property (S.R. Vol 8: 33 lines 18-24):
Brian: "And is that -- I’m going to show you Exhibit A, which is the agreed interim order. Can you tell me, Ms. Lovett, there’s an exhibit called Exhibit B which is attached to Exhibit A. Does that exhibit represent our final agreement of the division of major personal property?"
Laurie: "It does not." (hereinafter “Statement 2”)
Ms. Marcus testified on July 23, 2003 that she DID NOT KNOW which document represented the agreement between Brian and Laurie regarding personal property (S.R. Vol. 10: 90 lines 21-22, 91 lines 1-6):
Brian: "Ms. Marcus, isn’t it true that this Exhibit KKKK is the appropriate property list that should have been attached to the agreed interim order?"
Ms. Marcus: "I have no idea what the appropriate property list is. My recollection is that we could never, and by we I mean Mr. Ainley, Mr. Sabath, and I and you and Mrs. Lovett could never actually agree on what the appropriate property list was." (hereinafter “Statement 3”)
Ms. Marcus testified on July 23, 2003 that she DID NOT KNOW if the Agreed Interim Order was the agreement between Brian and Laurie regarding personal property (S.R. Vol. 10: 96 lines 12-19):
Brian: “Ms. Marcus, just one more minute of questions. I'm going to show you what I have marked as Exhibit A. Can you tell me, the attached Exhibit B on Exhibit A, is that the correct property list that Ms. Lovett and I agreed to?”
Ms. Marcus: “I have no idea, Mr. Lovett.” (hereinafter “Statement 3-A”)
Laurie testified on July 24, 2003 that the Agreed Interim Order WAS the agreement between Brian and Laurie regarding personal property (i.e., she agreed to all of the personal property items on it) (S.R. Vol. 10: 125 lines 11-22, 126 lines 1-14):
Ms. Marcus: "Under “Guest Bedroom,” on page 1 of 4 of that Exhibit, of that fax, under “Guest Bedroom”, what’s the fourth item down?"
Laurie: "Trunk."
Ms. Marcus: "And which trunk was in the guest bedroom?"
Laurie: "It was a wooden trunk."
Ms. Marcus: "Was that the trunk the judge ordered you receive?"
Laurie: "Yes." (hereinafter “Statement 4”)
Ms. Marcus: "Whose name is marked on that list?"
Laurie: "Laurie."
Ms. Marcus: "Is this the list that was attached to the agreed interim order?"
Laurie: "Yes."
Ms. Marcus: "Did you agree to all the items on that list?"
Laurie: "Yes." (hereinafter “Statement 5”)
Ms. Marcus: "And have you either agreed to turn over or have you either agreed to turn over or already turned over all the items on that list to Mr. Lovett?"
Laurie: "Yes." (hereinafter “Statement 6”)
Ms. Marcus: "Have you changed your mind about any of these items other than what you’ve agreed to additionally in court?"
Laurie: “No.” (hereinafter “Statement 7”)
Laurie later testified again on July 24, 2003 that the Agreed Interim Order WAS the correct list (i.e., the list to which she agreed) (S.R. Vol. 10: 127 lines 10-15):
Brian: "You just testified that you agreed to all the items as designated on Exhibit B of Exhibit A, is that correct?"
Laurie: "That’s my understanding,without going through all of these. We divided our property using this list, and that’s what I agreed to." (hereinafter “Statement 8”)
Ms. Marcus stated on August 18, 2003 in her closing argument that Laurie and her attorneys believed that the personal property list attached to the Agreed Interim Order WAS the agreement between the parties (S.R. Vol. 11: 48 lines 16-22, 49 lines 1-3):
Ms. Marcus: “Regarding the sanctions that he requests in his view of our conduct -- multiple criminal offenses, I’m still not exactly sure what that conduct was, but I think it had to do with the personal property list, and the fact that lists went back and forth, and there was -- We believe that the list that was attached to the agreed order was the correct list. And he had another list that he thought was the correct list, and we were never clear on that.” (hereinafter “Statement 9”)
Mr. Ainley testified on March 13, 2003 during the initial personal property hearing that the personal property list attached to the Agreed Interim Order WAS NOT the agreement between the parties (S.R. Vol. 2: 99 lines 10-22):
Mr. Ainley: “Judge, if you read the pleadings, paragraph two of Mr. Lovett’s motion for turn over of personal property says that "Subsequent to the entry of the March 26, 2002 court order Brian has sought to remove the personal property allocated to him pursuant to the court order." In our response to paragraph one we say in our response that the attached alleged property division was not what was agreed upon by the parties. (hereinafter “Statement 10-A”) That is why we deny paragraph two because there was no personal property allocated to him pursuant to the order. (hereinafter “Statement 10-B”) And we can’t agree with that and also say that there is no agreement on the property.” (hereinafter “Statement 10-C”)
Pursuant to Illinois Supreme Court Rule 214, Mr. Ainley claimed on April 17, 2003 that no proper personal property list existed: Brian faxed a letter to Laurie’s attorneys on April 17, 2003, pursuant to Illinois Supreme Court Rule 214, which stated, in pertinent part: “As you have indicated in your Response to Motion for Turnover of Personal Property that the attached “Exhibit B” does not represent the equitable division of personal property contemplated in paragraph E(2) of the March 26, 2003 Agreed Order, pursuant to Supreme Court Rule 214, please provide to me the document that you consider to be the proper “Exhibit B” in the March 26, 2002 Agreed Order...” Mr. Ainley responded that “an agreement between you and Laurie was never reached regarding the division of personal property and therefore, there is no “proper Exhibit B”” (Pl. Ex. ZZZZ). (hereinafter “Statement 11”)
In ¶3 of Laurie’s Response to Motion for Turnover of Personal Property filed on February 11, 2003 (Pl. Ex. OOOO), Laurie, through her attorneys, certified that the trunk in the master bedroom (item a[3]), the mirror from the upstairs hallway (item g[3]), the Chegall picture (item l[3]), the quarter growth chart (item q[3]), two pictures from the downstairs hallway (item r[3]), and the rocker and stool (item s[3]) were not Brian’s property to remove: “Further responding, LAURIE affirmatively states that items a, e, f, g, l, o, q, r and s are not BRIAN’s property to remove.” (hereinafter “Statement 12”)
In ¶4 of Laurie’s Response to Request to Admit in Support of Motion to Turnover Personal Property filed March 19, 2003 (Pl. Ex. MMMM), Laurie, through her attorneys, certified her denial that the property list of the Agreed Interim Order was mistakenly attached by the parties’ attorneys because, as they stated “an agreement was never reached regarding the division of personal property”. (hereinafter “Statement 13”)
An e-mail sent by Laurie to Brian’s attorney, copying her attorney (Ms. Marcus), on February 27, 2002 (Pl. Ex. NNNNN) states that Laurie agreed to the property list in evidence as Pl. Ex. KKKK – not the list attached to the Agreed Interim Order: “Brian agreed to leave the house this evening (feb 27 at 6:00 pm) and therefore I have agreed to the attached list below.” (hereinafter “Statement 14”)
In ¶1 of Laurie’s Response to Request to Motion for Turnover of Personal Property filed February 11, 2003 (Pl. Ex. OOOO), Laurie/her attorneys, certified that the property list of the Agreed Interim Order WAS NOT the parties’ agreement: “LAURIE admits that the March 26, 2002 Order is attached as Exhibit A. LAURIE denies that the attached Exhibit B represents the equitable division of personal property as contemplated in Paragraph E(2) of the March 26, 2002 Order.” (hereinafter “Statement 15”)
Laurie testified on July 10, 2003 that she knew of no document showing the agreed disposition of the trunk in the master bedroom (i.e., item a[3]) (S.R. Vol. 8: 49 lines 14-18):
Brian: "Ms. Lovett, is there any document that shows that we agreed on items -- on the disposition of items A and G from my Exhibit LLLL?"
Laurie: "Not that I know of." (hereinafter “Statement 16”)
In ¶11 of Laurie’s Response to Request to Admit in Support of Motion to Turnover Personal Property, Laurie, through her attorneys, certified her denial that Brian had not removed any of the items discussed in ¶10 of his Request to Admit in Support of Motion to Turnover Personal Property filed on February 19, 2003 (Pl. Ex. LLLL) from the marital residence (hereinafter “Statement 17”).
In ¶15 of Laurie’s Response to Request to Admit in Support of Motion to Turnover Personal Property (Pl. Ex. MMMM), Laurie, through her attorneys, certified her denial that she verbally agreed with Brian to divide the remaining marital property items, including “Samantha’s clothes” and “Samantha’s books” (hereinafter “Statement 18”).
B. Proof of falsity
The following 70 contradictions exist between statements “A” and “B” (in addition to the unambiguous title of the Agreed Interim Order[4]):
# |
A |
B |
# |
A |
B |
# |
A |
B |
1 |
13 |
1 |
40 |
18 |
8[5] |
56 |
11 |
8 |
2 |
10-C |
1 |
41 |
18 |
9[5] |
57 |
11 |
9 |
3 |
11 |
1 |
42 |
15 |
5 |
58 |
2 |
5 |
4 |
13 |
14 |
43 |
15 |
8 |
59 |
10-C |
5 |
5 |
13 |
5 |
44 |
15 |
9 |
60 |
10-C |
8 |
6 |
13 |
8 |
45 |
10-A |
5 |
61 |
11 |
5 |
7 |
13 |
9 |
46 |
10-A |
8 |
62 |
2 |
7 |
8 |
13 |
Pl. Ex. A[4] |
47 |
10-A |
9 |
63 |
3 |
9 |
9 |
10-C |
Pl. Ex. A[4] |
48 |
10-B |
5 |
64 |
3-A |
9 |
10 - 15 |
12 |
5[5] |
49 |
10-B |
7 |
65 |
2 |
9 |
16 - 21 |
12 |
6[5] |
50 |
10-B |
8 |
66 |
16 |
5 |
22 - 27 |
12 |
7[5] |
51 |
10-B |
9 |
67 |
16 |
6 |
28 - 32 |
12 |
8[5] |
52 |
10-B |
Pl. Ex. A[4] |
68 |
16 |
8 |
33 - 37 |
12 |
9[5] |
53 |
4 |
R. Vol. 9: C2218 |
69 |
16 |
9 |
38 |
18 |
5[5] |
54 |
4 |
S.R. Vol. 8: 57 lines 1-2 |
70 |
17 |
12[6] |
39 |
18 |
7[5] |
55 |
4 |
S.R. Vol. 10: 132 lines 13-15 |
In a clear conspiracy to defraud the circuit court and Brian, and just dealing with whether an agreement was reached and whether the Agreed Interim Order represented the agreement, Laurie and her attorneys contradicted themselves as follows:
Claims/Statements That: |
||||||||||
No |
Agreement Existed |
Agreed Interim Order |
Agreed |
Ms. Marcus |
Ms. Marcus |
|||||
10-C |
1 |
5 |
2 |
3 |
9 |
|||||
11 |
5 |
6 |
10-A |
3-A |
||||||
13 |
9 |
7 |
10-B |
|||||||
14 |
8 |
11 |
||||||||
9 |
12 |
|||||||||
13 |
||||||||||
14 |
||||||||||
15 |
||||||||||
C. The perjury was material and the declarants knew the statements were false and intended to mislead the trial court.
A statement is deemed material when it did influence, or could have influenced, the finder of fact. People v. Briddle, 84 Ill. App. 3d 523 (1980). The contradictions have clearly influenced the circuit court and affected this case’s outcome. Which exhibit (i.e., Pl. Ex. A or Pl. Ex. KKKK) reflected the agreement between the parties as to the disposition of personal property is material to which property belongs to Brian and which property belongs to Laurie, as the Agreed Interim Order specifically provides for “final allocation of personal property” (see Pl. Ex. A; see also S.R. Vol. 5: 230-236). In other words, the disposition of the trunk in the master bedroom and the flower picture in the living room are directly controlled by the parties’ agreement per the Agreed Interim Order. However, the trial court held the parties’ agreement as irrelevant (S.R. Vol. 10: 112-114). Laurie has been awarded the trunk in the master bedroom and the flower picture in the living room (R. Vol. 9: C2218; see also S.R. Vol. 10: 132 lines 13-15), as well as attorneys’ fees of $56,467 (R. Vol. 9: C2213), which includes fees that produced perjured documents and testimony.
Laurie and her attorneys intentionally withheld and obfuscated the facts with evasive, misleading answers, as the Agreed Interim Order specifically stated that the parties had an agreement and their counsels had the agreed-to personal property list (Pl. Ex. A, ¶E.2.). Laurie and her attorneys knew, or reasonably should have known, that a written document exists indicating the final allocation of personal property, as the Agreed Interim Order clearly says such a document exists and that they had it, which defies Rule 3.4 of the Illinois Rules of Professional Conduct. By Pl. Ex. NNNNN, Ms. Marcus and Laurie knew, or should have known, that Laurie agreed to the property list Pl. Ex. KKKK on February 27, 2002 – not the list attached to the Agreed Interim Order. Laurie even admitted on July 24, 2003 that Brian took items on Pl. Ex. KKKK (S.R. Vol. 10: 127 lines 17-22, 128 lines 1-6)). As is clearly indicated on Pl. Ex. KKKK (p. 2), the crib and dresser under “Little Value” are allocated to Brian, which is why Brian took them and Laurie did not protest (Pl. Ex. A, p. 6, under “Samantha’s room” shows these items as allocated to Laurie). Mr. Ainley, who worked closely with Ms. Marcus on this case, who signed the personal property-related pleadings, and who dealt with the initial personal property hearing, knew, or should have known, that Laurie agreed to the property list Pl. Ex. KKKK. Sanchez v. City of Chicago, No. 1-03-2594, at ¶48 (Ill.App. Dist.1 09/30/2004).
Laurie and her attorneys knew, or should have known, that they could have ended the disagreements (and eliminated associated attorneys’ fees) over personal property as early as November 4, 2002 by turning over those personal property items in the Agreed Interim Order, but they chose not to do so and, instead, claimed that the Agreed Interim Order was not the agreement. Quite clearly, Laurie and her attorneys were attempting to deceive the circuit court and Brian into the false allusion that Laurie did not agree to the Agreed Interim Order in their Response to Motion for Turnover of Personal Property, which goes to the very heart of the matter. Regenold v. Baby Fold, Inc., supra, at ¶43. This is nothing but fraud. Majewski v. Gallina, 17 Ill.2d 92, at ¶26 (1959).
As the trunk in the master bedroom was clearly indicated as Brian’s property on both lists (i.e., Pl. Ex. A and Pl. Ex. KKKK), regardless of which list Laurie claimed to be the correct one, there could be no question that Brian and Laurie agreed that this was Brian’s property. Even the plain language of 750 ILCS 5/502 requires the court to be bound by the obvious and clear agreement on the trunk. Therefore, the July 24, 2003 Order to award this property to Laurie was clearly against the manifest weight of the evidence and an abuse of discretion. Additionally, as Laurie sent Brian an e-mail (Pl. Ex. NNNNN), copying her attorney, indicating that she agreed to the property list Pl. Ex. KKKK, the July 24, 2003 Order to award the flower picture to Laurie was likewise in error.
As Pl. Ex. NNNNN clearly indicates, there can be no question that Laurie and Ms. Marcus knew that Laurie had agreed to Pl. Ex. KKKK. More importantly, there should be no question that Laurie, Ms. Marcus, and Mr. Ainley conspired to commit multiple acts of perjury (see also S.R. Vol. 7: 4-6, especially 6 lines 1-3 referencing Mr. Ainley’s question to Brian: “But, at some point, the agreement didn’t exist, or at least Ms. Lovett claimed there was no agreement, right?”). Calling this an “abuse of discretion” certainly does not do it justice. Brian requests that this court notify the State’s Attorney about the alleged felonies and the alleged conspiracy.
VII. Laurie and her attorneys committed deliberate, malicious, and severe fraud
The parties orally agreed in February, 2002 that neither party would pay the other any monies while the case was pending (S.R. Vol. 5: 4 lines 20-23; 52-54). The evidence was not refuted or challenged. Brian presented evidence that Laurie and her attorneys committed multiple torts, including when they intentionally made false statements of material fact and then Laurie breached her oral contract with Brian (S.R. Vol. 5: 5 lines 10-14<). The evidence was not refuted or challenged. This violation of Laurie’s duty was the proximate cause of Brian’s injury (i.e., financial and emotional). While Brian performed all of his duties, Laurie failed to perform on most every aspect of her duties and was therefore liable for breach of contract and fraud. (S.R. Vol. 5: 4-18; 35-59). Soules v. General Motors Corp., 79 Ill.2d 282, at ¶14 (1980). As Brian’s solid evidence showed (S.R. Vol. 5: 4-18, 35-69), an agreement was negotiated on or around February 19, 2002 between the parties and their counsel (i.e., the Agreed Interim Order, Pl. Ex. A), which included that, as the parties would have equal parenting time with Samantha and both could financially afford to meet her reasonable needs, and as the parties would be paying half of all major expenses, including the nanny, the parties agreed that neither party would pay the other child support. The evidence was not refuted or challenged. It also included a provision that, in order to resolve any future issue regarding the parties’ “spending habits,” after February 19, 2002, the parties would retain their respective future paychecks, which would be deemed “equivalent in value,” “without further analysis as to expenditures or the like.” (Pl. Ex. A, ¶E.1; see also S.R. Vol. 5: 115-118; Vol. 3: 23-29). Brian asks this court: what other possible interpretation could any reasonable, honest person make of this clause in the Agreed Interim Order, other than the parties were agreeing that each would solely retain their future earnings without further analysis? It should be obvious that any forced payment from one party to the other after this agreement would clearly be directly contrary to the clear wording. ANY other reading of this part of the Agreed Interim Order renders this entire part useless in ANY capacity and deprives Brian of one of the PRIMARY considerations for allowing Laurie to solely reside temporarily in the marital residence. Additionally, as 750 ILCS 5/502 required, the Agreed Interim Order was required to be “binding upon the court” as the court did not make any finding “that the agreement is unconscionable.” In re Marriage of Dunlap, 294 Ill. App. 3d 768 at ¶40-55 (1998).
Laurie agreed to all of Brian’s considerations in exchange for her own, knowing these future conduct promises to be false, with the malicious intent to get Brian to voluntarily and immediately move out of the marital residence in good faith. Brian certainly felt that he could justifiably “rely” (Soules v. General Motors Corp., supra, at ¶14) on the three “officers of the court” to properly formalize the agreement that they had been present for and participated in negotiating. Brian, relying on Laurie’s purported truth of her agreement and keeping “true” to his word, immediately looked for and found an apartment, and moved out 6 days later. On March 21, 2002, the day the Agreed Interim Order was to be filed and memorialized with the circuit court, and 24 days after Brian, in good faith, moved out of the marital residence, Laurie and her attorneys “sand-bagged” Brian and refused the inclusion of the proposed language regarding child support. As is clearly indicated in Pl. Ex. A, the author of the Agreed Interim Order (Jacalyn Birnbaum, the GAL) was obviously under the (correct) impression that the parties had intended and agreed that, during the pendency of the order, “[t]he parties’ respective obligations to pay child support are reserved... and each party shall be responsible for Samantha’s reasonable needs while Samantha is in his or her care.” Why else would an attorney write this into an agreed order if it had not been agreed to? As all of the definitive and final wording had been worked out and agreed to by the parties during the month (i.e., between February 19, 2002 and March 20, 2002), and as Brian had already performed on his part of the oral agreement in good faith, on the day the Agreed Interim Order was to be entered, and fully aware of how financially, physically, and emotionally difficult it would be for Brian to move back in, Laurie reneged on this part of her commitment and refused to sign the Agreed Interim Order unless ¶C.1. was removed.[7] (S.R. Vol. 5: 35-38). This constitutes fraud and it is a blatant breach of contract. It was therefore Laurie’s and her attorney’s entire scheme to defraud Brian and take advantage of his good faith that he offered to resolve the parties’ immediate differences, when they had no intention of honoring their part of the agreement. (S.R. Vol. 5: 42-43).
One day after Brian unwillingly allowed the Agreed Interim Order to be entered, Laurie filed an Emergency Petition for Temporary Support (Pl. Ex. KKK), which was completely against the spirit and clear wording of the agreement/Agreed Interim Order. (S.R. Vol. 5: 52-53). Brian’s previous attorney asserted this in a Motion in Limine filed on September 6, 2002 (R. Vol. 2: C258-259) and a Response to Emergency Petition for Temporary Support filed on September 27, 2002 (R. Vol. 2: C289-293). To add insult to injury, in her emergency petition, Laurie certified, under penalties of perjury, that she was in “[e]mergency” need of financial support, and that she was “without sufficient funds to pay her immediate household expenses.” Yet, Laurie’s Disclosure Statement Pursuant to Rule 13.3.1 (Pl. Ex. KKK), was obviously perjured, which Laurie and her attorney knew, or should have known. For example, Laurie did not provide ANY information in the Statement of Assets section regarding her Vanguard IRA account (in which she had approximately $7,000 at the time – S.R. Vol. 8: 102 lines 13-15; see also Vol. 9: 85) or her Accenture 401 (k) plan (in which she had approximately $67,000 at the time – S.R. Vol. 8: 102 lines 3-6; see also 23 lines 4-10 and Vol. 5: 224 lines 13-24, 225 lines 1-7). Her attorney even admitted this during trial (S.R. Vol. 10: 92-94, specifically 93 lines 18-22 and 94 lines 1-16), yet Laurie did not let the court know.[8] Because Laurie did nothing to correct the inaccuracy or notify the court, her failure should be sanctionable. Nissenson v. Bradley, supra, at 1039. Additionally, there can be no question that Laurie willfully and intentionally made false statements signifying her oral agreement during negotiations (i.e., that she would not seek child support from Brian) with inducement to get Brian to, in good faith, willingly agree to immediately leave the house (which, again, was not refuted or challenged), for otherwise, why would paragraph C.1. have remained for one month in the Agreed Interim Order until the last minute and have to be crossed-out by hand? Brian believed the statements made by Laurie to be true, relied on them, and as a result, suffered significant damages. The circuit court clearly abused its discretion by ignoring the manifest weight of this evidence (other than a small acknowledgment in the Judgment, R. C2259 ¶13) and by not ordering the reimbursement of the child support and maintenance Brian was ordered to pay. Therefore, though not dismissing its importance, the only consideration Brian received as a result of the Agreed Interim Order is equal parenting time, which should have been guaranteed by the Constitution anyway as previously described (as an aside, Laurie even tried to renege on her equal parenting time agreement by filing a Petition to Modify Temporary Visitation (Pl. Ex. BBBBB) 9 months after the Agreed Interim Order, which Brian effectively thwarted; Brian also eventually received the car, but even that required additional litigation as Laurie refused to transfer the title (R. C1043-1062)). Effectively, Brian has therefore received little to no consideration whatsoever for moving out of the residence that he purchased and improved exclusively with non-marital assets.
Furthermore, as the Attorneys’ Fees Statutes state that the Legislature’s intent was “to achieve substantial parity in parties’ access to funds for litigation costs” (750 ILCS 5/102 (5)), and as the Agreed Interim Order CLEARLY indicates that the accounts containing future paychecks will be “deemed to be equivalent in value,” the parties, by agreement, already had achieved parity in access to funds. How else could this possibly be interpreted? For what other purpose would Brian require this language, other than to preempt and prevent any claim that Laurie was entitled to financial support for her “expenditures,” which had been one of the primary contributors for the breakdown of the marriage? (S.R. Vol. 2: 165-167). Therefore, the circuit court abused its discretion and ignored the manifest weight of the evidence by awarding Laurie attorneys’ fees, as the parties were in complete parity with access to funds. ANY other reading of this part of the Agreed Interim Order renders this entire part useless in ANY capacity and deprives Brian of one of the PRIMARY considerations for allowing Laurie to solely reside temporarily in the marital residence. To add insult to injury, Brian and Laurie formally agreed AGAIN (Pl. Ex. VVV – 3.) that each party would be responsible for their personal expenditures. Yet, the circuit court ignored it (S.R. Vol. 10: 56-60). Additionally, the attorneys’ fees were equivalent up until the parties entered into their agreement (S.R. Vol. 5: 220-222).
VIII. Laurie clearly dissipated assets
Brian presented significant evidence indicating that Laurie dissipated approximately $29,000 (S.R. Vol. 8: 8-20, 64-69). Dissipation is defined as the use of marital property for the sole, but not necessarily personal benefit of one of the spouses for a purpose unrelated to the marriage at the time when the marriage is undergoing an irreconcilable breakdown. In Re Marriage of Barbara Hagshenas, 234 Ill. App. 3d 178, at ¶58, 60, and 66 (1992). For example, Brian presented clear evidence that Laurie charged $7,634.60 of restorative, cosmetic dental work, $3,440.81 for “out-of-plan” therapy, and $13,389.50 more than Brian on a personal credit card during the period of irreconcilable breakdown (including approximately $11,000 on clothing (S.R. Vol. 8: 66), $200 on towels (S.R. Vol. 8: 67), and $1,200 on bookshelves (S.R. Vol. 8: 68-69)). Also, Brian was ordered to “contribute” $2,500 to Laurie’s flexible spending health care plan (S.R. Vol. 8: 25-32), yet he did not received ANY reimbursement from Laurie as a result of this contribution. The circuit court ignored this evidence.
IX. Brian should have received the marital home
The manifest weight of the evidence was overwhelming (S.R. Vol. 5: 162-183, 199-213; Vol. 6: 124-127): (1) eleven months after the parties were married, and during the time when Brian and Laurie were constantly arguing about Laurie refusing to contribute her income to any marital expenses, Brian paid for the purchase of the marital home July 24, 1998 for $XXX (Laurie made no contribution), with an initial down payment of $XXX exclusively from Brian’s non-marital funds from his personal checking account (S.R. Vol. 5: 205-209; see also Judgment, R. Vol. 10: C2296 ¶104); [9] (2) all home improvements were paid exclusively by Brian’s non-marital and personal assets and Brian’s wages from Brian’s personal checking account (S.R. Vol. 5: 209-211; see also Judgment, R. Vol. 10: C2296 ¶104); (3) ALL mortgage payments, as well as ALL other related home-owner expenses were paid exclusively by Brian from his personal checking account (S.R. Vol. 5: 212; see also Judgment, R. Vol. 10: C2296 ¶104); (4) Brian exercised all management and control over the home (S.R. Vol. 5: 212); (6) Brian managed and performed all litigation related to home improvement contractors (S.R. Vol. 5: 212-213), and; (7) the parties agreed that both had separate personal accounts, which were distinct and separate from the joint account (S.R. Vol. 5: 162-183, 199-213; Vol. 6: 124-127), with Brian’s wages going directly into his personal checking account (Pl. Ex. CCC beginning with bank statement December 1, 1997 – December 31, 1997 and continuing throughout the exhibit, with Brian’s wages indicated as “IBMNETPAYS”; S.R. Vol. 5: 173 lines 12-16; see also Judgment, R. Vol. 10: C2296 ¶104).
Brian also presented considerable evidence that Laurie was funneling money to her family, while Brian was paying the marital expenses (e.g., S.R. Vol. 7: 180, 220-222, 229-245; Vol. 9: 58-61). [10] Additionally, Brian presented clear and convincing evidence that the funds used to acquire the marital home were acquired in exchange for property acquired before the marriage (S.R. Vol. 5: 162-183). Brian also presented evidence that the funds used to improve the marital residence were from funds acquired before the marriage and through gifts (S.R. Vol. 5: 162-183). All monies were directly and clearly traceable to Brian’s personal checking account (the parties both agreed that each had a personal account separate from their joint account – S.R. Vol. 9: 58 lines 1-7; see also Vol. 9: 221 lines 12-17). The circuit court even acknowledged “[t]hat the Wife testified that the parties agreed to a joint account and to a separate account for each of them” (Judgment, R. Vol. 10: 2296 ¶104; see also Laurie’s testimony (S.R. Vol 9: 58 lines 1-4) and Brian’s testimony (S.R. Vol. 5: 162 lines 13-17)), and Brian clearly showed that all of the funds for the purchase, improvements, and maintenance of the home came from Brian’s separate account. Yet, the circuit court ignored and disregarded these facts (other than acknowledging they were stated, see e.g., Judgment, R. Vol. 10: 2258 ¶8).
The factors presented clearly demonstrate that the circuit court’s distribution is inequitable (In Re Marriage of Barbara Hagshenas, supra, at ¶34-39; see also In re Marriage of Gattone, 317 Ill.App.3d 346, at ¶25-27 (2000)), especially considering Laurie’s consistent refusal to contribute or share her income and assets during the majority of the marriage, not to mention her blatant filtering of funds to her family. The circuit court’s decision alone to remove Brian entirely from the sale of the marital residence that he owned, purchased, and maintained was clearly an abuse of discretion.
X. Brian should have received the jewelry
Brian presented evidence that, before the marriage: (1) he purchased all of the contentious jewelry; (2) that five of the eight diamonds in the earrings were a gift from Brian’s mother to Brian, handed down to him (i.e., family heirlooms); (3) that the title/appraisals of all jewelry were specifically kept in Brian’s name; (4) that the jewelry was specifically for Laurie’s use only if, or while, the parties were married, and; (5) that Brian held the title and GIA Diamond Grading Report (i.e., Laurie’s name has not been placed on the title of these assets). (S.R. Vol. 5: 216-218). The circuit court ignored the manifest weight of the evidence in that the title was not vested “absolutely and irrevocably in the donee.” In Re Marriage of Weinstein, 128 Ill. App.3d 234, at ¶59-62 (1984). Clearly, Laurie did not present any evidence as to why Brian would have not placed her name on the titles of the jewelry, which would have provided some indication of “intention of vesting the title absolutely and irrevocably in the donee.” Dudley v. Uptown Nat. Bank of Moline, 25 Ill. App.2d 514, at ¶16 (1960). Laurie presented no evidence that delivery of the jewelry was made with the intention of vesting the title absolutely and irrevocably with her. In fact, clearly, the single fact that Laurie does not hold title to the jewelry indicates significant “uncertainty.”
Conclusion
Brian requests that the court declare the following statutes and rules unconstitutional, as well as the parts of the Judgment and Injunction that relied on these statutes and rules: the Best Interest of the Child Statutes, the Wealth Transfer Statutes, the Mandatory Disclosure Rules, and the Discovery Rules. Additionally, Brian requests the court order that Brian be fully reimbursed for all child support, maintenance, and attorneys’ fees he was ordered to pay, find that Laurie and her attorneys committed multiple torts and counts of perjury, find that the circuit court abused its discretion in ignoring allegations of fraud and perjury, order that Brian be fully reimbursed from the proceeds of the sale of the marital home, find that the circuit court abused its discretion in transferring the marital home to Laurie for sale, find that Laurie dissipated assets and order that Brian be reimbursed, order Laurie to turnover the jewelry to Brian, and order that Brian receive the two personal property items.
1416 W Wolfram St., #1
Chicago, IL 60657-4117
(312) 245-7982
blovett@gsb.uchicago.edu
[1] Brian contends that the Discovery Rules are not unconstitutional on their face, but only as applied in divorce proceedings.
[2] The common law record does not even include Laurie’s Emergency Petition for Temporary Restraining Order and Permanent Injunction (and associated affidavit), nor does it include her Amended Emergency Petition for Temporary Restraining Order and Permanent Injunction (and associated affidavit). It appears that Laurie never even actually filed these documents. However, both documents were presented by Brian to this court as part of his Supporting Record (C54 – C67) for his Emergency Motion to Stay Permanent Injunction Pending Appeal (filed on June 21, 2004, denied August 5, 2004).
[3] Per ¶1 of Response to Demand for Bill of Particulars filed January 27, 2003 (Pl. Ex. RRRR).
[4] The title of the Agreed Interim Order is crystal clear. Mr. Ainley even stated: “Your Honor, this paragraph is contained in an order titled Agreed Interim Order. This was agreed to by the parties.” (S.R. Vol. 3: 5 line 24, 6 lines 1-2).
[5] The trunk in the master bedroom (item a), the mirror from the upstairs hallway (item g), the Chegall picture (item l), the quarter growth chart (item q), two pictures from the downstairs hallway (item r), and the rocker and stool (item s) are clearly identified as Brian’s property on Pl. Ex. A. Additionally, Samantha’s clothes and books are clearly identified to be split equally on Pl. Ex. A. Each is considered a separate contradiction.
[6] In fact, ¶3 of Laurie’s Response to Motion for Turnover of Personal Property (Pl. Ex. OOOO) further supports this contradiction, as Laurie claims that “Brian is free to retrieve items b, c, d, h, and k from the former marital residence” and “Laurie affirmatively states that Brian should be allowed to retrieve items I, m, n, and p only upon the sale of the residence because removal of those items will detrimentally effect [sic] the sales presentation of the residence.” Therefore, Laurie and her attorneys clearly knew that Brian did not remove these items, contrary to their denial.
[7] As an additional proof that Laurie and her attorney’s actions were a VERY last minute “back-stab,” ¶C.1. on page 3 was crossed out BY HAND, rather than electronically deleting the paragraph and re-printing the Agreed Interim Order. Brian’s attorney did not even have time to initial this particular change before the Agreed Interim Order was entered, yet he initialed all other written-in/last minute changes, which provides additional proof that this was the last change made to the Agreed Interim Order.
[8] Laurie eventually did let the court know over 1 year later (i.e., after Brian had paid Laurie over 1 year of maintenance and child support), on April 24, 2003 (S.R. Vol. 9: 84-85).
[9] In April, 1998 (3 months before Brian’s purchase of the home), Brian also purchased an Acura SUV from his personal checking account (the same one used to purchase the house – see S.R. Vol. 5: 201-204), which was also not intended as a gift to the marriage, but had both parties’ names on it, which Laurie and her attorney admitted was considered Brian’s property at the time of purchase by the way they referred to it (e.g., Q: “And what did he get?” A: “An Acura SUV...” Q: “Did Mr. Lovett eventually get a different car?” A: “No.” (S.R. Vol. 9: 64 lines 7-21).
[10] As another continuing example of Laurie’s deceit and perjury, on July 10, 2003, Laurie claimed the $4,000 that she funneled to her parents was a “gift” (S.R. Vol. 7: 180, 220-222), but, 5 days later, on July 15, 2003 impeached herself by admitting that her “intention was to have it as security in case [she] needed some money... [i]n the event that Brian filed for divorce... so it was a security so that [she] could have access to some cash...” (S.R. Vol. 9: 59 lines 5-11)