Question: Is there a template that can be used to lower support and increase visitation?
IN THE COURT OF HON’BLE JUDGE
______ COUNTY,ILLINOIS, USA
WRITTEN ARGUMENT & MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO DISMISS
NOW COMES, the Petitioner, _____, by and through his attorney, _____, and for his Written Argument & Memorandum of Law in Support of Petition to Dismiss for lack of Jurisdiction, respectfully states as follows:
1. This action was brought under the Revised Uniform Reciprocal Enforcement of Support Act seeking to enforce an Ohio Order.
2. Section 20/40 - Enforcement Procedure status thus:
§750 ILCS 20/40. EFFECT OF REGISTRATION; ENFORCEMENT PROCEDURE.
SEC. 40. EFFECT OF REGISTRATION; ENFORCEMENT PROCEDURE.
(a) Upon registration, the registered foreign support order shall be treated in the same manner as a support order entered by a court of this State. It has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a support order of this State and may be enforced and satisfied in like manner.
(b) The obligor has 30 days after the mailing of notice of the registration in which to petition the court to vacate the registration or for other relief. If he does not do so, petition the registered support order is confirmed.
(c) At the hearing to enforce the registered support order, the obligor may present only matters that would be available to him as defenses in an action to enforce a foreign money judgment. If he shows to the court that an appeal from the order is pending or will be taken or that a stay of enforcement has been granted, the court shall stay enforcement of the order until the appeal is concluded, the time for appeal has expired, or the order is vacated upon satisfactory proof that the obligor has furnished security for payment of the support ordered as required by the rendering state. If he shows to the court any ground upon which enforcement of a support order of this State may be stayed, the court shall stay enforcement of the order for an appropriate period if the obligor furnishes the same security for payment of the support ordered that is required for a support order of this State.
3. The available defences of Respondent to this action are under the Foreign Judgments Recognition Act 735 ILCS 5/12 621 Sections (a), (a)(1) and (a)(2) and (b), (b)(1) and (b)(4).
§750 ILCS 5/12-621 INCONCLUSIVENESS OF JUDGMENTS.
SEC. 12-621. INCONCLUSIVENESS OF JUDGMENTS.
(a) A foreign judgement is not conclusive if
(1) the judgement was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
(2) the foreign court did not have personal jurisdiction over the defendant; or
(3) the foreign court did not have jurisdiction over the subject matter.
(b) A foreign judgement need not be recognized if
(1) the defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him or her to defend;
(2) the judgement was obtained by fraud;
(3) the cause of action on which the judgement is based is repugnant to the public policy of this State;
(4) the judgement conflicts with another final and conclusive judgement
(5) the proceedings in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceeding in that court; or
(6) the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action.
4. Respondents Defenses under (a), (a)(1) and (a)(2)
On the face of the order and exhibits attached and rendered by the Ohio Court, no evidence of any notice of any hearing determining the claimed arreage and resulting in the January 25, 1995 Order is presented. Respondent had no notice of said hearing and thus was not provided procedures compatible with the requirements of due process of law as requried by Section 5/12-621 (a). Neither was service obtained by granting personal jurisdiction to require Respondents presence before the Court as required by 5/12-621 (b).
5. Respondents Defense under Section 5/12-621(b)(1)
Respondents received no Notice of the Ohio Courts hearing on January 25, 1995 of the Petition for arrearage.
6. Respondents Defense under Section 5/12-621 (b)(2):
The Order is clearly in error and contradicts that Ohio Courts previous Order of August 30, 1994 that set the payment of Child Support with arrearage at $50.00 per month and states this modification shall be in effect until obligor becomes gainfully employed. The affidavit of Respondent is attached stating he is a student and not gainfully employed.
7. Page 2 of 2 of the Uniform Support Petition contains erasures attempting to conceal figures that reflect the Courts Order of August 30, 1994 and said changes are not initialed or dated. The new figures differ from the original figures entered which match the figures of the August 30, 1994 order.
8. Respondent does not infact own any back child support but has in fact overpaid child support by approximately $2000.000 because of an error in withholding from his pay and Plaintiff was well aware that she has received said overpayment.
WHEREFORE, Respondent moves the Court to deny enforcement of the foreign Order of the Ohio Court.
ATTORNEY AT LAW