Brian has made it very clear in his pleadings that he will never accept any custody recommendations by this court or this court’s appointed experts unless it guarantees him no less than a 50/50 split of Samantha’s time. He has repeatedly threatened to fight Laurie all the way to the Supreme Court if he does not get his way. (from Samantha's mom's first attorneys' fees petition)
Uh... yeah.
Nos. 1-04-1602 and 05-0149
IN THE APPELLATE COURT OF ILLINOIS
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 |
) |
||
) |
SUPPLEMENTAL BRIEF OF PETITIONER-APPELLANT
BRIAN LOVETT
1416 W Wolfram St., #1
Chicago, IL 60657-4117
(312) 245-7982
blovett@gsb.uchicago.edu
May 6, 2005
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)
I. The statutes authorizing the circuit court to steal Brian's assets are unconstitutional.
II. 750 ILCS 5/103 is unconstitutional.
Boatmen's National Bank v. Howard F. Ward, 231 Ill. App. 3d 401 (1992)
The People Ex Rel. Diane v. Daryon McDaniel, 180 Ill. App. 3d 13 (1989)
Fox v. Fox, 9 Ill.2d 509 (1956)In Re Marriage of Petramale, 102 Ill. App.3d 1049 (1981)
A. Laurie has ample assets to pay school and daycare expenses.
B. Laurie has ample assets to pay attorneys' fees.
Berg v. Berg, 85 Ill. App.2d 98 (1967)
Beyer v. Parkis, 324 Ill.App.3d 305 (2001)
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
Illinois Supreme Court Rule 137
NATURE OF THE CASE
On June 8, 2004, Brian Lovett (hereinafter "Brian") filed a timely Notice of Appeal in the instant matter to, intra alia, challenge the constitutionality of all Illinois's "best interest of the child" statutes (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"), 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").
On August 3, 2004, two months after a Judgment for Dissolution of Marriage was entered on June 1, 2004 (hereinafter "Judgment"), Respondent, Laurie Lovett (hereinafter "Laurie") filed her Petition to Modify Child Support.
On August 23, 2004, Laurie filed her Petition for Interim Attorneys' Fees and Costs for Defense of Appeal, requesting that the trial court withhold $79,645 from Brian's "share of the net proceeds from the sale of the former marital residence." On December 14, 2004, Laurie filed her Supplemental Petition for Interim Attorneys' Fees and Costs for Defense of Appeal requesting that the trial court increase the withholding to $81,620.
In his responses to the petitions, Brian again challenged the Best Interest of the Child Statutes, the Child Support Statutes, the Attorneys' Fees Statutes, the Mandatory Disclosure Rules, and the Discovery Rules. Additionally, Brian requested a trial by jury and challenged the constitutionality of 750 ILCS 5/103.
On December 15, 2004, the circuit court entered an order (hereinafter "Order") denying all of Brian's constitutional challenges and awarding Laurie both the child support sought and the attorneys' fees sought. Brian appeals from the Order.
On March 24, 2005, this court entered an order consolidating both appeals and ordering Brian to "file a supplemental brief with both case numbers which only addresses the new issues not addressed in the original brief." Therefore, this Supplemental Brief does not re-argue Brian's previous constitutional challenges against the Order, other than presenting that Brian reasserts the arguments.
ISSUES PRESENTED FOR REVIEW
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Whether Illinois statue 750 ILCS 5/103 is directly and egregiously violative of the Illinois Constitution on its face and as applied.
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Whether the circuit court's Order and rulings under the challenged statute is unconstitutional (i.e., denying Brian's requests to a trial by jury).
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Whether the circuit court's Order was also an abuse of discretion and contrary to the manifest weight of the evidence.
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Whether Laurie and her attorneys committed perjury.
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Whether the circuit court abused its discretion by ignoring perjury.
JURISDICTIONAL STATEMENT
Pursuant to Illinois Supreme Court Rules 301 and 303, this is an appeal as of right from a final order of a circuit court. The circuit court's Order was entered on December 15, 2004. (05-0149 R. Vol. 1: C126) Brian timely filed his Notice of Appeal on January 7, 2005. (05-0149 R. Vol. 1: C132)
STANDARD OF REVIEW
The statute and the associated Order 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
Laurie filed her first Petition for Interim Attorneys' Fees and Costs and Prospective Attorneys' Fees and Costs on January 14, 2003 seeking $21,953.26 from Brian (hereinafter "First Attorneys' Fees Petition"). (R. Vol. 3: C545-558) Laurie filed her Second Petition for Interim Attorneys' Fees and Costs on July 15, 2003 seeking $60,000 from Brian (hereinafter "Second Attorneys' Fees Petition"). (R. Vol. 9: C2048-2067) Laurie filed her third Petition for Contribution to Attorneys' and Expert Fees and Costs on July 18, 2003 seeking $121,804.12 from Brian (hereinafter "Third Attorneys' Fees Petition"). (R. Vol. 9: C2070-2133) On July 23, 2003, Brian was ordered to give Laurie's attorneys $56,467 within seven days for attorneys' fees and costs. (R. Vol. 9: C2213)
Laurie's attorney, Ms. Dorene Marcus (hereinafter "Ms. Marcus"), stated in her closing arguments at trial: ".and it looks like Samantha will continue to go to private school, I'm asking that each of the parties pay half of her tuition and half of any camp expenses. Laurie Lovett will pay all the expenses, including daycare from the $1,500 per month, and I believe that that disposes of the child support issues." (S.R. Vol. 11: 36 lines 7-14)
On June 1, 2004, as part of the Judgment, Laurie was awarded the sole care, custody, control, and education of the parties' minor child, Samantha Lovett (hereinafter "Samantha"). (R. Vol. 10: C2300) Additionally, the Judgment ordered that Brian pay Laurie 20% guideline child support ($1,519.10) and not be reimbursed for the attorneys' fees Brian was ordered to pay Laurie. (R. Vol. 10: C2302) Also, Laurie was given the exclusive ability to "claim the minor child as a tax exemption every year." (R. Vol. 10: C2302) The Judgment also stated "[t]hat except for the interim attorneys' fees and costs awarded to the Wife during the course of this litigation for which the Husband shall not be reimbursed, each party shall pay their own attorneys' fees and costs in connection with this case without any further contribution from the other party." (R. Vol. 10: C2302 ¶Q)
On August 5, 2004, Laurie filed her Petition to Modify Child Support (hereinafter "Child Support Petition") claiming there had been "a substantial change in circumstances since the 2003 trial which warrants a modification of Brian's child support obligations." Laurie asserted in her Child Support Petition, which was signed under penalties of perjury, that "Laurie has insufficient funds to pay 100% of Samantha's private school and day time child care expenses by herself." (05-0149 S.R. Vol. 1: C5) Laurie requested an order requiring Brian to pay 50% of the cost of Samantha's school expenses and 50% of Samantha's daytime child care expenses. (05-0149 S.R. Vol. 1: C2-C10) Also on August 5, 2004, and pursuant to Cook County Rule 13.3.1(b), Laurie served Brian a blank Disclosure Statement. (05-0149 S.R. Vol. 1: C11)
On August 23, 2004, Laurie filed her Petition for Interim Attorneys' Fees and Costs for Defense of Appeal (hereinafter "Fourth Attorneys' Fees Petition"), alleging that "Laurie does not" have the ability to pay in paragraph 30 (05-0149 R. Vol. 1: C10) and requesting that the trial court withhold $79,645 from Brian's "share of the net proceeds from the sale of the former marital residence." (05-0149 R. Vol. 1: C2-C20) She asserted that she has "the capacity to continue to earn [her] present income," which she stated in paragraph 28.a is $110,300 annually, and she also asserted in paragraph 28.d that she doesn't have "any impairment to [her] earning capacity at this time." (05-0149 R. Vol. 1: C7-C8) On December 14, 2004, Laurie filed her Supplemental Petition for Interim Attorneys' Fees and Costs for Defense of Appeal (hereinafter "Fifth Attorneys' Fees Petition") requesting the trial court withhold $81,620. (05-0149 R. Vol. 1: C117-C125)
In his responses to both the Child Support Petition (05-0149 R. Vol. 1: C22-C42) and Fourth Attorneys' Fees Petition (05-0149 R. Vol. 1: C43-C65), Brian again challenged the Best Interest of the Child Statutes, the Child Support Statutes, the Attorneys' Fees Statutes, the Mandatory Disclosure Rules, and the Discovery Rules. Additionally, Brian alleged "that there is no possible way that he can receive a fair hearing within this court unless a jury is present," requested a trial by jury, and challenged the constitutionality of 750 ILCS 5/103. (05-0149 R. Vol. 1: C27 and C46-C47)
In support, Brian cited examples alleging that Judge Veronica Mathein had "abused [her] power by being completely biased in this case, prejudiced and damaged Brian's natural rights as a father, and is intent on hurting Brian as much as possible by disregarding State and Federal law." Brian's request to remove Judge Mathein from all current and future litigation was denied. (05-0149 R. Vol. 1: C72)
During the hearing on December 15, 2004, the total due to Samantha's school, Chicago City Day School, was $7,448.62. (05-0149 R. Vol. 2: 80 lines 16-22, 81 lines 1-3). Laurie's Disclosure Statement Pursuant to Rule 13.3.1 states that she has $44,759 in her checking account (05-0149 R. Vol. 1: C113), $101,429 in her 401(k) (05-0149 R. Vol. 1: C115), and $6,727 in stock and options (05-0149 R. Vol. 1: C115), which totals $152,915. Laurie testified that she had "approximately $153,000 in reasonably liquid assets." (05-0149 R. Vol. 2: 104 lines 13-17) Laurie also testified that she could pay her attorneys their current bill of $12,000 and an additional $60,000. (05-0149 R. Vol. 2: 104 lines 19-22, 105 lines 1-5) In answer to her attorney's, David Ainley (hereinafter "Mr. Ainley"), question "[i]f you were required to pay all of your attorney's fees for Mr. Lovett's appeal and eventual appeals all the way to the Supreme Court, you will have no money at all to purchase a condominium for yourself, right," Laurie testified "[c]orrect." (05-0149 R. Vol. 2: 110 lines 15-20) On December 15, 2004, the circuit court entered the Order denying all of Brian's constitutional challenges and awarding Laurie both the child support sought and attorneys' fees sought. The Order states, in pertinent part: "(1) Brian shall pay 50% of Samantha's private school expense, retroactive to August 5, 2004. Within 7 days of today's date, Brian shall pay the school the sum of $7,224. Going forward, each party shall pay their respective 50% share directly to the school on the date due. Any finance charges shall be the sole responsibility of the party who fails to pay their share in full. (2) Brian's child support obligation shall increase by $800 per month to $2,319 per month, pursuant to a separate order for support, as his contribution to 50% of Samantha's daytime child care expense. (3) Brian shall pay the law firm of Davis Friedman the sum of $81,620 as interim attorneys' fees and costs for defense of appeal. Said sum shall be deducted from the sales proceeds due Brian from the sale of the former marital residence. (4) All of Brian's constitutional challenges are denied." (05-0149 R. Vol. 1: C126) Brian appeals from the Order.
ARGUMENT
I. The statutes authorizing the circuit court to steal Brian's assets are unconstitutional
As this court ordered that Brian "file a supplemental brief with both case numbers which only addresses the new issues not addressed in the original brief," Brian simply reasserts all of his applicable constitutional arguments from his Appellate Brief, specifically Section 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"), Section II (The Best Interest Of The Child Statutes Are Unconstitutional), Section III (A Rule With The Force And Effect Of Law That Requires Divulging Information About Oneself Without Probable Cause Is Facially Unconstitutional), Section IV (The Child Support Statutes, Maintenance Statutes, And Attorneys' Fees Statutes Are Unconstitutional[1]), and related appendices, and incorporates them herein as if fully set forth.
II. 750 ILCS 5/103 is unconstitutional
750 ILCS 5/103 states that "[t]here shall be no trial by jury under this Act." However, the State cannot change the Illinois Constitution by statute. The statute is clearly unconstitutional, as Article I, Section 13 of the Illinois Constitution is explicit that "[t]he right of trial by jury as heretofore enjoyed shall remain inviolate." As explicitly stated in Boatmen's National Bank v. Howard F. Ward, 231 Ill. App. 3d 401, at para. 44 (1992): "Although the seventh amendment does not apply to State court proceedings (Hattaway v. McMillan (11th Cir.1990), 903 F.2d 1440,1451 n.16), our State has its own constitutional guarantee of the right of trial by jury (Ill. Const.1970, art.I, § 13)." Additionally, "[t]he right to trial by jury in section 13 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, § 13) refers only to those actions recognized in common law at the time of its adoption." The People Ex Rel. Diane v. Daryon McDaniel, 180 Ill. App. 3d 13, at para. 15 (1989). There can be no question that marriage and divorce were recognized in common law at that time and, in fact, a trial by jury was part of the divorce procedure (e.g., Fox v. Fox, 9 Ill.2d 509, at para. 13 (1956)). The state cannot change the Illinois Constitution by statute.
III. The doctrine of res judicata prevents a litigant from getting yet another day in court after the case is completed
The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are bound not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. A final judgment on the merits bars further claims by the same parties based on the same cause of action. Additionally, in res judicata, the first judgment is conclusive not only on all matters which actually were litigated, but on all matters which could have been litigated.
A. Argument and evidence were presented during the trial regarding Samantha's private school and child care.
Laurie claimed in her Child Support Petition that "[t]he Judgment is silent as to Brian's contribution to Samantha's education and day care expenses." (05-0149 S.R. Vol. 1: C3 ¶5). Nothing could be further from the truth. As Brian made clear in his response to the Child Support Petition (05-0149 R. Vol. 1: C22-C42), there can be no question that the trial court considered a significant amount of evidence and made a significant number of orders regarding Samantha's education, as the trial court referred to Samantha's education at least 29 times in the Judgment, including and specifically whether education should be paid 50/50. On page 4 of the Judgment, the trial court specifically found in paragraph 12: "That in his opening statement the Husband states that he is seeking the following. Samantha's education and health care to be paid 50/50 by the parties." (R. Vol. 10: C2259 ¶12)
On page 11 of the Judgment, the trial court specifically found in the last paragraph: "The Father testified that he agreed to hire the nanny the Mother wanted that he did not want, however, the Mother refuses to allow any say in the Child's day care or school, and the Mother did not allow the Father to select the Child's school." (R. Vol. 10: C2266)
On page 29 of the Judgment, the trial court specifically found (starting on the second to last line): "in 7-2002 the Wife filed a petition for the Husband to contribute to the Child's school tuition. the Husband prefers that the Child not go to a school that has Jewish undertones." (R. Vol. 10: C2284-2285 ¶64)
On page 45 of the Judgment, the trial court specifically ordered in item B: "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." (R. Vol. 10: C2300 ¶B)
On page 46 of the Judgment, the trial court specifically ordered in item G: "That each parent shall have full access to the Child's school, medical, and religious training records." (R. Vol. 10: C2301 ¶G)
On page 47 of the Judgment, the trial court specifically ordered in item H: "That so long as he has a duty to support or educate the Child." (R. Vol. 10: C2302 ¶H)
On page 47 of the Judgment, the trial court specifically ordered in item J: "That the Mother shall provide the primary medical coverage for the Child for so long as she has a duty to support or educate the Child." (R. Vol. 10: C2302 ¶J)
On page 47 of the Judgment, the trial court specifically ordered in item K: "That the Father shall provide the secondary medical coverage for the Child for so long as he has a duty to support or educate the Child." (R. Vol. 10: C2302 ¶K)
On page 47 of the Judgment, the trial court specifically ordered in item M: "That beginning July 1, 2004 the Husband shall pay guildelines child support to the Wife for the support of the minor child in the amount of $1519.10 per month. Child support shall terminate on November 13, 2017 unless the Child is still in high school on November 13, 2017 and in that case child support shall terminate on the exact date that the child graduates from high school." (R. Vol. 10: C2302 ¶M)
On page 47 of the Judgment, the trial court specifically ordered in item O: "That each parent's contribution to the college education expenses of the minor child shall be determined by Section 513 of the Illinois Marriage and Dissolution of Marriage Act." (R. Vol. 10: C2302 ¶O)
On page 46 of the Judgment, the trial court ordered vacation schedules, referring to "Spring break" and "Winter break" eight times (which, of course, implies spring break and winter break from school). (R. Vol. 10: C2301)
Brian presented a September 30, 2002 order during trial (admitted into evidence as Exhibit DDDD), which required Brian to pay 50% of Samantha's nanny expenses. On page 14 of the Judgment, the trial court acknowledged the exhibit in its findings at item e. (R. Vol. 10: C2269 ¶e)
Brian presented a September 6, 2002 order during trial (admitted into evidence as Exhibit N), which required Brian to pay 61% of Samantha's school tuition. On pages 30 -31 of the Judgment, the trial court acknowledged the disagreements about school (in the top paragraph and in paragraph 69 respectively). (R. Vol. 10: C2285-2286)
On page 32 of the Judgment, the trial court found in paragraph 71: "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." (R. Vol. 10: C2287 ¶71)
Brian testified during trial on the morning of June 27, 2003 that he was "more than willing" and offered "to pay 50% of all Samantha's major educational and health care expenses" that the parties "jointly agreed to," but he "refuse[d] to pay any more." (S.R. Vol. 3: 208 lines 9-13)
On page 34 of the Judgment, the trial court referred to Laurie wanting attorneys' fees because of debates over ".Samantha going to school." (R. Vol. 10: C2289 ¶79)
On page 38 of the Judgment, the trial court discussed Laurie's testimony regarding Samantha's education. (R. Vol. 10: C2293 ¶93)
On page 38 of the Judgment, the trial court found in paragraph 93: "The Wife testified that for the 2003-2004 school year the parents applied to all the same schools and added the Lab school. The Child was not accepted at any school except Sinai because she had been a student there the previous year. The parties did agree that the Child would attend Latin School Summer Camp for summer 2003." (R. Vol. 10: C2293 ¶93) It is unconscionable for anyone, especially this court, to believe the Laurie applied to various private schools for multiple years but did not know "the exact nature and amounts" of school expenses and daycare at the time of trial as she claimed in her Child Support Petition. (05-0149 S.R. Vol. 1: C4 ¶6.H)
On page 43 of the Judgment, the trial court found in paragraph 114: "That when asked why the Child should spend more time with the Mother than with the Father, the Mother said that she feels the Child will have stability and nurturing and over all would have a normal routine and a home that she comes to after school." (R. Vol. 10: C2298 ¶114)
On page 44 of the Judgment, the trial court found in paragraph 128: "That it is in the best interest of the Child that the Mother be awarded the sole care, custody, control and education of the Child." (R. Vol. 10: C2299 ¶128)
On page 49 of the Judgment, the trial court ordered in paragraph AA: "That the Husband shall provide the Wife with a copy of his federal and state income tax returns along with all W-2 statements and 1099's for the previous year no later than May 1 of each year for so long as he has a duty to support or educate the Child." (R. Vol. 10: C2304 ¶AA)
To add insult to injury, Laurie's own attorney, Ms. Marcus, stated in her closing arguments at trial: ".and it looks like Samantha will continue to go to private school, I'm asking that each of the parties pay half of her tuition and half of any camp expenses. Laurie Lovett will pay all the expenses, including daycare from the $1,500 per month, and I believe that that disposes of the child support issues." (S.R. Vol. 11: 36 lines 7-14) In fact, Laurie's attorney states further that "[b]efore I forget, your Honor, I'd like to mention Section 513. So we're asking the Court to apply Section 513 and order college education expenses in accordance with the means of the parties at the time that Samantha goes to college and in accordance with her ability." (S.R. Vol. 11: 37 lines 1-7) Therefore, Laurie obviously asked for everything in her Child Support Petition at trial, was unhappy with the result but, rather than appealing, came back two months after the Judgment to ask for it again from a different judge (whom Brian alleged was extremely biased against him). Talk about res judicata!
B. The Judgment clearly states that each party shall pay their own attorneys' fees without any further contribution from the other party.
The Judgment is very clear on page 47, item Q regarding attorneys' fees: "That except for the interim attorneys' fees and costs awarded to the Wife during the course of this litigation for which the Husband shall not be reimbursed, each party shall pay their own attorneys' fees and costs in connection with this case without any further contribution from the other party." (R. Vol. 10: C2302 ¶Q) The phrase "without any further contribution from the other party" would be superfluous if it did not apply to the appeal that everyone knew Brian was intending to pursue.
C. Argument and evidence were presented long before and during the trial regarding Brian's appeal to the U.S. Supreme Court.
The case number on Laurie's Fourth Attorneys' Fees Petition and Fifth Attorneys' Fees Petition is 00 D 06725, obvious the case number used during the entire litigation.
In her First Attorneys' Fees Petition, Laurie stated: "Brian has made it very clear in his pleadings that he will never accept any custody recommendations by this court or this court's appointed experts unless it guarantees him no less than a 50/50 split of Samantha's time. He has repeatedly threatened to fight Laurie all the way to the Supreme Court if he does not get his way." (R. Vol. 3: C549 ¶16.f) In her Second Attorneys' Fees Petition, Laurie stated: "This case involves complex issues of child custody and visitation and the equitable distribution of assets. Further, Mr. Lovett has chosen to challenge the constitutionality of Sections 501(a), 501(c)(1), 503(g), 503(j), 504, 505, 506, 507, 508, 510(a), 510(e), 510(f), 513, 602, 603, 604, 607, 609, and 610, Illinois Supreme Court Rules 201 through 214, and sections 13.3.1 and 13.3.2 of the Rules of the Circuit Court of Cook County." (R. Vol. 9: C2051 ¶16.h) In her Third Attorneys' Fees Petition, Laurie stated that Brian "has testified that he intends to pursue his constitutional claims to the level of the United States Supreme Court, regardless of the outcome of this case. If Mr. Lovett believes he will not need to pay any further attorneys' fees, he will feel free to continue litigation at Ms. Lovett's and everyone else's expenses except his own. It is therefore unusually important that he shares the burden of fees and costs with Ms. Lovett as contemplated by Section 503(j)." (R. Vol. 9: C2074-2075 ¶19) (As an aside, but important to note, it should be quite clear to any honest judge that Laurie's statements in paragraph 19 of her Third Attorneys' Fees Petition are direct requests by Laurie for the trial court to apply significant pressure (i.e., $121,804.12 of pressure) in order to threaten and force Brian to back-down on his valid constitutional claims.) After three petitions, Brian was ordered by the trial court on July 23, 2003 to give to Laurie's attorneys $56,467 within seven days for Laurie's attorneys' fees and costs. (R. Vol. 9: C2213)
Laurie even testified at the hearing that she knew during trial that Brian would appeal all the way to the U.S. Supreme Court. (05-0149 R. Vol. 2: 107-108) Therefore, there can be no question that Laurie, her attorneys, and the trial judge knew during trial that Brian was and is intending to appeal to the U.S. Supreme Court. Ergo, there can be no doubt that these facts were considered in the trial court's theft of Brian's property for Laurie's attorneys' fees. Additionally, the Judgment clearly states, which was specifically related to the "issue of attorneys' fees," and which Laurie introduced into evidence as a message from Brian: "Unfortunately, Laurie is now going to spend all of her hard-earned money defending the State's fraudulent "laws," as we both know the Illinois Attorney General will not support her until I reach the U.S. Supreme Court." (R. Vol. 10: C2282 ¶54) Also, in the Judgment, the trial court found that Brian testified that "he intends to appeal, he intends to take this case to the U.S. Supreme Court" (R. Vol. 10: C2285 ¶65), which Laurie even admits in her Fourth Attorneys' Fees Petition. (05-0149 R. Vol. 1: C9-C10 ¶28.i) Laurie also admits that she is aware that Brian "has made it clear that he will not stop until the U.S. Supreme Court hears his various arguments." (05-0149 R. Vol. 1: C9 ¶28.h)
On page 47 of the Judgment, the trial court, knowing full-well that Brian intended to appeal to the U.S. Supreme Court (as previously described), specifically stated in item Q: "That except for the interim attorneys' fees and costs awarded to the Wife during the course of this litigation for which the Husband shall not be reimbursed, each party shall pay their own attorneys' fees and costs incurred in connection with this case without any further contribution from the other party." (R. Vol. 10: C2302 ¶Q) Therefore, there can be no question that the additional attorneys' fees and costs awarded as a result of the Order in this case (00 D 06725) would be in direct contradiction to the clear-cut wording of the Judgment.
To add insult to injury, on page 48 of the Judgment, the trial court specifically stated in item X: "That the parties [sic] marital property, the condominium located at 2034 N. Seminary, Unit 1, Chicago, Illinois, shall be placed on the market on or before June 30, 2004, and sold at its fair market value. The net proceeds from the sale after the payment of the mortgage and all other reasonable and necessary expenses of sale shall be divided 50/50 between the parties." (R. Vol. 10: C2303 ¶X) Therefore, as the Order specifically states that "Brian shall pay the law firm of Davis Friedman the sum of $81,620 as interim attorneys' fees and costs for defense of appeal. Said sum shall be deducted from the sales proceeds due Brian from the sale of the former marital residence" (05-0149 R. Vol. 1: C126 ¶3), the Order directly contradicts the terms of the Judgment, as Brian did not receive 50% of the net proceeds. Yet, it is hornbook law that once a notice of appeal is filed (i.e., is perfected), the trial court is divested of jurisdiction to enter any order involving a matter of substance, and the jurisdiction of the appellate court attaches instanter. The trial court is thereby restrained from entering any order which would change or modify the judgment or its scope, and from entering any order which would have the effect of interfering with the review of the judgment. In Re Marriage of Petramale, 102 Ill. App.3d 1049, at para. 22 (1981). (Although the trial court retains jurisdiction to determine matters arising independent of, and collateral to, the judgment, attorneys' fees and the division of the marital home are a few of the primary aspects of the nature of the appeal. It is irrefutable that the additional award of additional attorneys' fees substantially and directly affects the action of the reviewing court, especially given the nature of the appeal which includes the constitutionality of various Illinois statutes and rules affecting same.)
IV. Laurie had, and has, significant funds from which to pay school, daycare expenses, and attorneys' fees
A. Laurie has ample assets to pay school and daycare expenses.
Laurie testified that the total due to Chicago City Day School was $7,448.62. (05-0149 R. Vol. 2: 80 lines 16-22, 81 lines 1-3) In addition to the $1,519.10 purported child support that Laurie was receiving from Brian monthly (i.e., $18,229.20 annually), and in addition to Laurie being able to claim Samantha as a dependent for tax purposes, Laurie's Disclosure Statement Pursuant to Rule 13.3.1 states on page 5 that she has $44,759 in her checking account (05-0149 R. Vol. 1: C113), states on page 7 that she has $101,429 in her 401(k) (05-0149 R. Vol. 1: C115), and states on page 7 that she has $6,727 in stock and options (05-0149 R. Vol. 1: C115), which totals $152,915. Therefore, Laurie's statement in paragraph 10 of her Petition to Modify Child Support (i.e., "Since Laurie has insufficient funds to pay 100% of Samantha's private school and day time child care expenses by herself.") (05-0149 S.R. Vol. 1: C5 ¶10), which was attested to under penalties of perjury, is obviously a complete and utter lie. There can be no question that Laurie has ample funds to pay for school and daycare. In fact, Brian's monthly payments to Laurie for purported child support more than cover Samantha's entire education WITHOUT ANY CONTRIBUTION from Laurie.
B. Laurie has ample assets to pay attorneys' fees.
Laurie admitted in her Fourth Attorneys' Fees Petition that she has "the capacity to continue to earn [her] present income," which she stated in paragraph 28.a is $110,300 annually, and she also stated in paragraph 28.d that she does not have "any impairment to [her] earning capacity at this time." (05-0149 R. Vol. 1: C7-C8) Laurie even has over $23,000 in wedding-related jewelry alone (e.g., engagement ring, wedding band) (R. Vol. 10: C2303 ¶W) that could have been used to pay for her attorneys' fees (obviously in addition to the $131,469.17 which she claims in her Fifth Attorneys' Fees Petition that she received from the sale of the home) (05-0149 R. Vol. 1: C118 ¶5.a). As the Illinois Appellate Court stated in its reversal of an award of attorneys' fees related to an appeal: "Attorney's fees are only justified when the court finds that one spouse is financially unable to pay the fees and the other spouse is able to do so. Jones v. Jones, 48 Ill. App.2d 232, 198 N.E.2d 195 (1964). After the appeal (50,909) was taken from the June, 1964, order, plaintiff filed a petition with the trial court for attorneys' fees and costs for defending the appeal. She alleged that she was without funds and defendant was able to pay. Defendant's answer denied the allegations of the petition. An order was entered February 21, 1966, requiring defendant to pay plaintiff's attorney $450 in fees and $50 costs. From this order the second appeal (51,386) was filed. We are aware of the rule that allowance of attorneys' fees is a discretionary matter. However, as stated above, it can only be justified if plaintiff is financially unable to pay and defendant is able to do so. Although the order found that plaintiff was unemployed and has no income of her own, the record discloses that she held with her second husband, two joint bank accounts with funds totaling $2,700. They also owned a home in joint tenancy. Furthermore, the order makes no finding as to the defendant's ability to pay, nor was any evidence adduced on that subject." Berg v. Berg, 85 Ill. App.2d 98, ¶17-19 (1967) Clearly, even under the alleged unconstitutional Attorneys' Fees Statutes, Laurie did not meet the statutory requirements and the trial court made no finding that Laurie was financially unable to pay. But, of course, Laurie testified that she was fully able to pay. (05-0149 R. Vol. 2: 104 lines 19-22, 105 lines 1-5)
C. Laurie and her attorneys committed perjury.
The Illinois perjury statute (720 ILCS 5/32-2), Illinois Supreme Court Rule 137, and 735 ILCS 5/1-109 require pleadings to be well-grounded in fact and a good-faith argument. The total due to Chicago City Day School was $7,448.62. (05-0149 R. Vol. 2: 80 lines 16-22, 81 lines 1-3) As previously discussed, Laurie alleged that she had "insufficient funds to pay 100% of Samantha's private school and day time child care expenses herself." In direct contradiction to this, and according to Laurie's testimony (05-0149 R. Vol. 2: 83-84) and 13.3 disclosure, she had $44,759 in her checking account alone. Laurie's Disclosure Statement Pursuant to Rule 13.3.1 states on page 5 that she has $44,759 in her checking account (05-0149 R. Vol. 1: C113), states on page 7 that she has $101,429 in her 401(k) (05-0149 R. Vol. 1: C115), and states on page 7 that she has $6,727 in stock and options (05-0149 R. Vol. 1: C115), which totals $152,915. Laurie even testified that she could pay the entire balance for school from her checking account without taking out any loans from any assets (e.g., her 401(k)). (05-0149 R. Vol. 2: 84 lines 14-22) It is, therefore, crystal clear that Laurie and her attorneys knew that Laurie had sufficient funds to pay 100% of Samantha's school and day time child care expenses herself from just her checking account alone. Therefore, Laurie's statement in her Child Support Petition, which is attested under penalties of perjury (i.e., "Laurie has insufficient funds to pay 100% of Samantha's private school and day time child care expenses by herself."), is obviously a complete and utter lie, which her attorneys clearly knew.
Ergo, Laurie and her attorneys, Ms. Marcus and Mr. Ainley, of the law firm Davis, Friedman, Zavett, Kane, MacRae, Marcus and Rubens should be sanctioned by this court for clear-cut perjury.
Also, after fully admitting in paragraph 28 of her Fourth Attorneys' Fees Petition that she is going to receive almost double the amount she estimates for the appeal from the sale of the home, Laurie swore under oath in her affidavit in support of her Fifth Attorneys' Fees Petition that she is going to use part of the proceeds from the sale of the home, which she admits will net her over $131,000, for a down payment on a new home. (05-0149 R. Vol. 1: C123-124 ¶5) So, obviously, if Laurie has enough money to make a down payment on a new home, she obviously has enough to pay Samantha's tuition. Even Illinois's corrupt statute on child support states that the court is supposed to consider the financial resources of the custodial parent (750 ILCS 5/505(a)(2)(b)).
Laurie's Disclosure Statement Pursuant to Rule 13.3.1 states that she has about $152,915, which is more than enough to pay her current and estimated attorneys' fees. Laurie even testified that she had "approximately $153,000 in reasonably liquid assets." (05-0149 R. Vol. 2: 104 lines 13-17) Laurie alleged in paragraph 30 of her Fourth Attorneys' Fees Petition that "since Brian is proceeding pro se, he has the financial ability to pay Laurie's interim attorneys' fees and costs and Laurie does not. Therefore, Section 501 of the IMDMA requires this Court to assess an interim award against Brian in the amount necessary to enable Laurie to adequately participate in the defense of Brian's appeal and "level the playing field." (05-0149 R. Vol. 1: C10) However, Laurie testified that she could not only pay her attorneys their current bill of $12,000, but she could also pay them an additional $60,000 (i.e., on top of the $12,000). (05-0149 R. Vol. 2: 104 lines 19-22, 105 lines 1-5) In answer to her attorney's question "[i]f you were required to pay all of your attorney's fees for Mr. Lovett's appeal and eventual appeals all the way to the Supreme Court, you will have no money at all to purchase a condominium for yourself, right," Laurie testified "[c]orrect." (05-0149 R. Vol. 2: 110 lines 15-20) Awarding Laurie over $82,000 in attorneys' fees, when she had more than enough to pay her attorneys, so that she can purchase a home for herself is what courts illogically refer to as "leveling the playing field." Beyer v. Parkis, 324 Ill.App.3d 305, at ¶54-55 (2001)
Conclusion
Brian requests that the court declare 750 ILCS 5/103 unconstitutional. Additionally, Brian requests this court order that Brian be fully reimbursed for all child support and attorneys' fees he was ordered to pay, find that Laurie and her attorneys committed perjury, sanction Laurie and her attorneys for committing perjury, and find that the circuit court abused its discretion in ignoring clear-cut perjury.
1416 W Wolfram St., #1
Chicago, IL 60657-4117
(312) 245-7982
blovett@gsb.uchicago.edu
[1] As maintenance/alimony was not awarded as part of the Order, the constitutional arguments in the Appellate Brief exclusively related to maintenance are not incorporated herein.