THIS DOCUMENT IS BEING
SHARED AS PART OF OUR RESEARCH AND NOT AS A LEGAL DOCUMENT. EDUCATIONAL
PURPOSES ONLY AND IS NOT TO BE A SUBSTITUTE FOR AN ATTORNEY. IF YOU ARE PRO SE,
YOU ARE ENCOURAGED TO TAKE THIS TO AN ATTORNEY AND HAVE THEM REVIEW IT BEFORE
YOU FILE USING ANY OF THIS IN YOUR CASE. ANYTHING YOU USE FROM THIS DOCUMENT IS
AT YOUR OWN RISK AND YOU ARE RESPONSIBLE TO MAKE SURE THAT IT IS ACCURATE,
UP-TO-DATE, AND APPLIES TO YOUR CASE. THIS RESEARCH WAS DONE BY NON-ATTORNEYS
AND IS TO SERVE AN IMPORTANT PUBLIC INTEREST. THERE IS A PROBLEM WITH PARENTS
BEING PUT IN DEBTOR’S PRISONS AND THE COURTS DO NOT HAVE ANY STANDARD FOR WHAT
ABILITY TO PAY MEANS. AS FAR AS THE JUDGES ARE CONCERNED IF YOU HAVE 1 DOLLAR
IN YOUR POCKET YOU HAVE THE ABILITY TO PAY. EVEN WITH ATTORNEYS PARENTS ARE
BEING SENT TO THESE DEBTOR’S PRISONS. IT HAS BECOME NECESSARY TO EDUCATE THE
PUBLIC SO THAT THEY KNOW THERE IS SOMETHING THEY CAN DO WHEN EVEN THEIR COUNSEL
FAILS THEM. REMOVE THIS TEXT IF YOU DECIDE TO USE THIS DOCUMENT AS YOUR
TEMPLATE.
STATE OF ILLINOIS )
) SS
COUNTY OF _____ )
IN THE CIRCUIT COURT OF THE NINETEENTH
JUDICIAL CIRCUIT, _____ COUNTY, ILLINOIS
NAME )
Petitioner, )
)
Vs. ) No.
)
NAME )
Respondent )
MOTION TO VACATE CONTEMPT ORDER
NOW COMES, the Petitioner, YOUR NAME, pro se,
request that this court Vacate the Contempt Order issued on ___________, and in
support of my Motion to Vacate Contempt Order and Other Relief states as
follows:
Petitioner brings this motion to request the
court vacate the Judgement Order rendered on __________ according to rules 735 ILCS 5/13-217 and section 2-1401. and/or under 735 ILCS
5/2-1301(e). Under section 2-1301(e), a litigant can move to vacate a
non-final order or judgment at any time before that order or judgment becomes
final.
(735
ILCS 5/2-1301) (from Ch. 110, par. 2-1301)
Sec. 2-1301. Judgments - Default -
Confession. (a) The court shall determine the rights of the parties and grant
to any party any affirmative relief to which the party may be entitled on the
pleadings and proofs. Judgments shall be in the form required by the nature of
the case and by the recovery or relief awarded. More than one judgment may be
rendered in the same cause. If relief is granted against a party who upon
satisfying the same in whole or in part will be entitled by operation of law to
be reimbursed by another party to the action, the court may determine the
rights of the parties as between themselves, and may thereafter upon motion and
notice in the cause, and upon a showing that satisfaction has been made, render
a final judgment against the other party accordingly.
(e)
The court may in its discretion, before final order or judgment, set aside any
default, and may on motion filed within 30 days after entry thereof set aside
any final order or judgment upon any terms and conditions that shall be
reasonable.
The Court entered an Order of Contempt on _________.
The Court made a finding without having a
fair and equitable ability to pay hearing before entering the order of
contempt.
This motion is filed timely and Petitioner
has been diligent.
Petitioner has an inability to pay which was
reflected in the record in Petitioner’s request for modification. Petitioner’s
income has dropped from _______ per month to ______ per month.
Additionally, Petitioner is unable to obtain employment
at the level that Petitioner earned prior to ____________ or since the time of
the original ordered amount for child support.
Petitioner would show that there are
“equitable considerations” that are appropriate for this court to review.
Petitioner also intends to raise the question
of a purely legal issue as allowed under 2-1401. Petitioner intends to appeal
any attempt of this court to issue contempt on child support amount that
exceeds Petitioner’s current ability to pay and that exceeds the state’s
statutory maximum of 28% of income.
Whether
this Court has the authority to enforce the child support amount through
contempt?
Whether
the Court is required to hold a fair and equitable ability to pay hearing?
Whether
jailing Petitioner with an inability to pay constitutes a Debtor’s Prison?
Petitioner is requesting that this court
apply extraordinary circumstances regarding the diligence of Petitioner and
grant this petition in the interest of preventing an unjust entry of a judgment
and in order that substantial justice between the parties may be done.
Petitioner has not been given opportunity to
vacate this judgment.
Petitioner did not receive a full and fair
evidentiary hearing – See Turner v. Rogers (SCOTUS 2011). Petitioner is being
jailed in a Debtor’s Prison – See Patterson’s Publication and McBride v.
McBride (N.C. 1993).
“Incarceration of indigent obligors for
nonpayment of child support represents a serious failure of the system. It is a
social failure because it does little to generate child support payments, and
it increases the economic marginalization of the persons whose economic success
is critical to achieving the goals of the program. Use of contempt in these
situations also drives wedges between family members whose cooperation could
significantly contribute to the child’s well being.
Furthermore, for the large number of indigent fathers who flee to the
“underground economy” to avoid their inevitable return to prison, contempt
sanctions permanently remove them—usually both socially and economically—from
the child’s life. The legal failure represented by incarceration of indigent
parents for contempt is—if possible—even greater than the social and economic
failure. Criminal contempt is supposed to be a punishment for willful
misbehavior, not for an absence of funds.3 Civil contempt is supposed to be
used to coerce a person to do something that he is able, but unwilling, to do.4
In either case, if the contemnor’s failure to pay the sums ordered by the court
is simply a result of inability to pay, his incarceration can only be
characterized as imprisonment for being poor.5” ~ “Patterson, Civil Contempt and
the Indigent Child Support Obligor: The Silent Return of Debtor's Prison, 18
Cornell J. L. & Pub. Pol'y 95, 117 (2008).”
See
also, e.g., McBride v. McBride, 334 N.C. 124, 131, n. 4, 431 S.E.2d 14, 19, n.
4 (1993) (surveying
North Carolina contempt orders and finding that the "failure
of trial courts to make a determination of a contemnor's ability to comply is
not altogether infrequent").
~ cited in Turner v. Rogers, 131 S. Ct. 2507 -
Supreme Court 2011”
Petitioner is pro se, cannot afford counsel,
and therefore has to learn this process on my own. Due to the emotional demands
to deal with these court issues, it has taken Petitioner some time to be able
to figure out what needs to be done to file for this relief. Petitioner’s
capabilities are limited due to limited funds.
Respondent is represented by counsel, making
the proceedings fundamentally imbalanced.
Petitioner has made every attempt to be in
compliance with all legal technical issues and requests leave of this Court to
be notified and be provided with fair time to correct any technical issues that
the Court finds.
Petitioner is indigent.
Petitioner is unable to comply with the
support order.
Petitioner is already being garnished to the
maximum amount.
This request is not to delay justice but so
that justice can be done.
Petitioner has also attached an affidavit to
further support my position.
PRAYER
Petitioner Prays that this Court Vacate its
Order of Contempt.
Petitioner Prays that this Court grant this
relief and all other relief allowed under law.
Petitioner Prays that if the Court does not
Vacate the Order of Contempt that the Court place a stay on issuing any writ of
execution regarding incarceration so that Petitioner can complete appeal on the
denial to Vacate the Order.
________________
NAME
Pro Se
AFFIDAVIT AND CERTIFICATE OF SERVICE BY MAIL
I, YOUR
NAME, a non-attorney, on oath state that I served the foregoing MOTION TO
VACATE CONTEMPT ORDER upon the counsel and each party listed below by enclosing
copies thereof in envelopes, addressed as shown with postage prepaid via United
States Postal Service and mailing directly at the United States Postal Service
location in _______, Illinois on _______, 2017 at or before 5:30 p.m.
NAME
Attorney for
Respondent
address
city, state, zip
Phone: ________ Fax: ____
ARDC No. ______
NAME
Guardian ad
Litem
Attorney at Law
address
city, state, zip
____________________
name
Pro
Se
address
city, state, zip
Phone: ________
Signed and sworn before me
On this ____ day of _____________, _________.
________________________________________
Notary Public
STATE OF ILLINOIS )
)
SS
COUNTY OF _____ )
IN THE CIRCUIT COURT OF THE NINETEENTH
JUDICIAL CIRCUIT, _____ COUNTY, ILLINOIS
NAME )
Petitioner, )
)
Vs. ) No. _____
)
NAME )
Respondent )
NOTICE OF FILING
TO: NAME, Attorney for Respondent, STREET, CITY, STATE ZIP
NAME,
Guardian at Litem, Attorney at Law, STREET, CITY,
STATE ZIP
PLEASE TAKE NOTICE that on _____________ was
filed with the Clerk of the Circuit Court of _________ County, this certain NOTICE OF FILILNG of MOTION TO VACATE
CONTEMPT ORDER a copy of which is attached hereto and served upon you.
________________
NAME
Pro Se
AFFIDAVIT AND CERTIFICATE OF SERVICE BY MAIL
I, NAME,
a non-attorney, on oath state that I served the foregoing NOTICE OF FILING of
MOTION TO VACATE CONTEMPT ORDER upon the counsel and each party listed below by
enclosing copies thereof in envelopes, addressed as shown with postage prepaid
via United States Postal Service and mailing directly at the United States
Postal Service location in _________, Illinois on ___________, 2017 at or
before 5:30 p.m.
NAME
Attorney for
Respondent
address
city, state, zip
Phone: ________ Fax: ____
ARDC No. ______
NAME
Guardian ad
Litem
Attorney at Law
address
city, state, zip
____________________
NAME
Pro
Se
address
city, state, zip
Phone: ________
Signed and sworn before me
On this ____ day of _____________, _________.
________________________________________
Notary Public
STATE OF ILLINOIS )
)
SS
COUNTY OF ____ )
IN THE CIRCUIT COURT OF THE NINETEENTH
JUDICIAL CIRCUIT, _____ COUNTY, ILLINOIS
NAME )
Petitioner, )
)
Vs. ) No. _____
)
NAME )
Respondent )
NOTICE OF MOTION
TO: NAME, Attorney for Respondent, STREET, CITY, STATE ZIP
NAME,
Guardian at Litem, Attorney at Law, STREET, CITY,
STATE ZIP
ON ___________, 2017 at _____ a.m./p.m.
or as soon thereafter as Petitioner may be heard, I shall appar
before the Honorable Judge ______ in the Courtroom, ____ at the ____ County
Courthouse, ____ Street, _____, IL ____, then and there present the attached NOTICE OF MOTION of MOTION TO VACATE
CONTEMPT ORDER and ask for an inability to pay hearing instanter.
________________
BENJAMIN WINDERWEEDLE
Pro Se
AFFIDAVIT AND CERTIFICATE OF SERVICE BY MAIL
I, NAME, a non-attorney, on oath state that I
served the foregoing NOTICE OF FILING of MOTION TO VACATE CONTEMPT ORDER upon
the counsel and each party listed below by enclosing copies thereof in
envelopes, addressed as shown with postage prepaid via United States Postal
Service and mailing directly at the United States Postal Service location in
_________, Illinois on ___________, 2017 at or before 5:30 p.m.
NAME
Attorney for
Respondent
address
city, state, zip
Phone: ________ Fax: ____
ARDC No. ______
NAME
Guardian ad
Litem
Attorney at Law
address
city, state, zip
____________________
NAME
Pro
Se
Pro
Se
address
city, state, zip
Phone: ________
Signed and sworn before me
On this ____ day of _____________, _________.
________________________________________
Notary Public
STATE OF ILLINOIS )
)
SS
COUNTY OF LAKE )
IN THE CIRCUIT COURT OF THE NINETEENTH
JUDICIAL CIRCUIT, LAKE COUNTY, ILLINOIS
NAME )
Petitioner, )
)
Vs. ) No. _____
)
NAME )
Respondent )
AFFIDAVIT
I, ____________(NAME), am over the age of 21 and reside in the
State of Illinois for over 6 months. I submit this Affidavit under penalty of
perjury and certify that everything in this affidavit is of my personal
knowledge.
I am Petitioner in this case.
I have an issue of law that I believe needs to be addressed
before this Court should order any orders regarding child support arrears.
My wages are being garnished to the maximum amount allowed by
law. I am living in poverty as the result. I therefore am not failing to pay. I
am unable to comply with the amount of child support this court is ordering. I
am unable to comply with the support order.
I believe that this Court did not provide me with a fair and
equitable hearing regarding my ability to pay child support at the current
ordered amount. Therefore, the Court did not do an ability to pay review
adequate for holding me in contempt.
I believe that the order that the Court is enforcing through
contempt actually if enforceable is only enforceable through a judgment and not
contempt.
The Court has placed me at an unfair disadvantage denying my
Motion to Modify and striking it without giving me opportunity to cure any
technical issues.
Even without my motion to modify, I believe that it is the
Court’s duty to evaluate whether the amount of child support is appropriate for
the amount of income currently. My income was 6000 a month and now is only
1500. I have other child support obligations prior to this child support
obligation and that needs to be taken into ability to pay consideration as
well.
Before the Court can incarcerate me I believe the Court must
determine actual ability to pay givin circumstances
in the moment and must do so in a way that does not leave me without ability to
prove for my own minimum basic needs particularly when the mother makes over _______
per year and the children are not going without anything, and when the order
that the court is enforcing states on its face that both parties are able to
support themselves according to the level of the marriage.
I do not have the ability to obtain gainful employment at the
level that I was earning when in the military.
I believe that the Court has ordered a child support amount that
exceeds statute.
I believe that the Court is required to have an ability to pay
hearing and that I need to be present for this hearing in order for this to be
a FAIR and EQUITABLE hearing.
I am indigent and have filed my application to have court fees
waived.
I am unable to pay the child support amounts as ordered. I am
not willfully not paying, I have an inability to pay.
I have no property and nothing that I can borrow.
I have no one to borrow from.
I have no reliable income source to which I could even think of
being able to maintain the amount being required for child support.
The order for child support currently in place from 2015 I am
not able to pay.
I am unable to provide my ex-wife with medical support.
I am unable to provide my children with money for
extra-curricular activities.
I am unable to pay for anything over the 28% minus my prior
child support amount obligation from my 1500 dollars per month retirement.
I believe that this Court’s order is counterproductive to me
being able to provide for my children and in fact is against the recommendations
of the Department of Justice. The Department of Justice letter is attached.
I believe that it has been discouraged by the Department of
Justice for courts to use incarceration as a coercive means for payment of
child support or child support arrears.
I believe that incarcerating me over an inability to pay would
be equivalent to jailing me in a debtor’s prison according to Turner v. Rogers
(SCOTUS 2011) and McBride v. McBride from North Carolina.
I believe that I have not received a fair hearing and that due
process has been violated.
I believe that being held to standards of technical legal
procedure that prevents me from being properly heard are preventing proper just
results.
____________________
NAME
Pro
Se
address
city, state, zip
Phone: ________
Signed and sworn before me
On this ____ day of _____________, _________.
________________________________________
Notary Public
SECTION 2-1401 RELIEF FROM JUDGMENTS
(735 ILCS 5/2-1401) (from Ch. 110, par. 2-1401) |
||
|
||
(3) no
evidence of domestic violence against the |
||
|
||
(4) the
movant was unaware of the mitigating nature |
||
|
||
(5) the
new evidence of domestic violence against the |
||
|
||
Nothing in this subsection (b-5)
shall prevent a movant from applying for any other relief under this Section
or any other law otherwise available to him or her. |
||
|
||
"Forcible
felony" has the meaning ascribed to the |
||
|
||
"Intimate
partner" means a spouse or former spouse, |
||
|
||
(c) Except as provided in Section
20b of the Adoption Act and Section 2-32 of the Juvenile Court Act of 1987 or
in a petition based upon Section 116-3 of the Code of Criminal Procedure of
1963, the petition must be filed not later than 2 years after the entry of
the order or judgment. Time during which the person seeking relief is under
legal disability or duress or the ground for relief is fraudulently concealed
shall be excluded in computing the period of 2 years. |
ATTACH THE CASE TURNER v. ROGERS from SCOTUS 2011
(controlling) for inability to pay case law and McBride v. McBride (1993 from
North Carolina as advisory.)
“Patterson, Civil Contempt and the
Indigent Child Support Obligor: The Silent Return of Debtor's Prison, 18
Cornell J. L. & Pub. Pol'y 95, 117 (2008). See
also, e.g., McBride v. McBride, 334 N.C. 124, 131, n. 4, 431 S.E.2d 14, 19, n.
4 (1993) (surveying North Carolina contempt orders and
finding that the "failure of trial courts to make a determination of a
contemnor's ability to comply is not altogether infrequent").” ~
cited in Turner v. Rogers, 131
S. Ct. 2507 - Supreme Court 2011
Attach the DOJ “Dear Colleague” letter