Il suprême court tech merit for how the appearance looks ….

January 7, 2014 § 1 Comment

THIS APPEAL INVOLVES A QUESTION OF CHILD CUSTODY, 

AFFECTING THE BEST INTERESTS OF A CHILD

No. XXXXXX

______________________________________________________________________________________

In the

 SUPREME COURT

Of The State of Illinois

______________________________________________________________________________________

)  Petition for Leave to Appeal

IN RE MARRIAGE OF )

DXXXX XXXXXX )  On Appeal from Appellate Court, First

Petitioner-Appellant-Petitioner (divorce) )  District, No. 11-XXXX

Respondent-Appellant-Petitioner (OOP) )

)  There Heard on Appeal from Circuit

)   Court of Cook County,

v. )   Domestic Relations Division

)

)   No. 09 D XXXXXX

)

CXXXXXXXX XXXXXX )   Honorable Judge David Haracz,

Respondent-Appellee-Respondent (divorce)) Trial Judge

Petitioner-Appellee-Respondent (OOP) )   Order of Trial Court April 29, 2011

) Revised on May 9, 2011

)   Order of Appellate Court

) November 14, 2011

)   Order on Motion for Rehearing

)                      December 19, 2011

PETITION TO APPEAL AS A MATTER OF RIGHT OR IN THE ALTERNATIVE FOR LEAVE TO APPEAL

DXXXX F. XXXXXX

XXXX XXXXXX XXXX

XXXXXX XX XXXXX

XXX XXX-XXXX

Petitioner-Appellant-Petitioner, Pro Se

Petitioner wishes to file supplemental brief to more fully argue the issues and respectfully requests a copy of any rules pertaining to preparing supplemental briefs.

Oral argument respectfully requested.PRAYER FOR PETITION TO APPEAL AS A MATTER OF RIGHT OR IN THE ALTERNATIVE FOR LEAVE TO APPEAL 

Pursuant to Illinois Supreme Court Rules 317, due to issues of first impression of a constitutional nature, and 315, DXXXX F. XXXXXX (“DXXXX”), Petitioner Pro Se, hereby petitions the Illinois Supreme Court to Appeal, the order of the Illinois Appellate Court (“IAC”) of December 19, 2011, (Supreme Court Appendix [“SCA”] – A), which denied Reconsideration of 304(b)(6) Appeal affirmed November 14, 2011 (SCA – B). This petition is timely filed within 35 days of final order on motion to reconsider (rehearing)

Petitioner prays this Honorable Court allows this Petition to Appeal to reverse the IAC’s affirmation of DXXXX’s appeal, (SCA B ) because this case poses the following constitutional issues of first impression (which affect thousands of potential/

pending/concluded similar cases regarding orders of protection (“OOP”) and/or for dissolution of marriage (“DOM”), for which Petitioner essentially argues that the trial court orders are all null and void ab initio due to violation of statutes, violation of due process rights, fraud upon the court, as well as because this case poses questions where trial error cumulatively is grotesquely apparent including but not exclusively:

whether the IAC has plenary power to sue sponte by fiat declare that the trial court had jurisdiction, ignoring statutory 30 day limit for interim OOP and argument that violation of this statute, 750 ILCS 60/220(2) terminates case and voids all orders issued after case was terminated. (The Court should NOTE that the DOM custody findings were based on the orders from the OOP case.)

whether the IAC has plenary power to sue sponte by fiat declare that a trial for DOM may proceed without the child representative serving the parents with statutorily required pre-trial memorandum (discovery), 750 ILCS 5/506(a)(3) (whose legislative intent was for this memorandum to serve as discovery), or if this denies due process requiring a new trial.

whether a parent who walks out of a combined OOP and DOM trial, that he perceives to have not been valid due to denial of discovery (preventing him the opportunity to prepare a defense regarding the OOP or to prepare his argument regarding his DOM issues) and voidness, ( no pre-trial memorandum and 30 day interim OOP terminating case issues), waives all of his issues on appeal because he did not present them to the trial court on the day of the perceived “sham” ex parte trial.

whether a trial court can summarily dismiss a section 2-1203 motion to reconsider without an evidentiary hearing.

whether a trial court can summarily deny a section 610(a) emergency motion to modify custody orders without an evidentiary hearing.

whether hearsay can be presented as evidence in an OOP and DOM custody trial from a 13 year old child when no sexual abuse is alleged.

whether an appellant has “failed to preserve the record and waived all issues” when a judge orders no court reporter and refuses to consider bystander reports for approval.

Petition for rehearing was filed on December 5, 2011 and denied by the IAC on December 19, 2011 (SCA A). No affidavit of intent to seek review was filed with the IAC.

STATEMENT OF JUDGMENT

On 4/29/11, in the Circuit Court of Cook County (“CCCC”) DOM case before Judge Haracz  an ex parte verbal DOM order (transcript not available) and a written plenary OOP (C V2 p 408-411, SCA C) was entered granting full custody to CXXXXXXXX XXXXXX (“CXXXXXXXX”) and denying custody to DXXXX, while also requiring DXXXX to have only supervised visits. On May 5, 2011 the Trial Court issued its written order. (C V2 p 412-419, SCA D). The Trial Court sue sponte modified its order for DOM on May 10, 2011 (C V2 p 421-425), changing child support. The Trial Court denied (SCA E) a timely filed (on 6/6/11), 1203 Motion for Reconsideration (S p 01-39, SCA F) on 6/6/11. Notice of Appeal of Final Decision to deny section 2-1203 Motion to Reconsider was filed in IAC (1st Dist.) on 12/5/11 (C V2 434-436). Brief (SCA G) of Defendant was filed on 10/3/11. Response Brief of CXXXXXXXX was filed on 11/10/11. Response Brief of Child Representative DAVID WESSEL (“WESSEL”) was filed on 11/10/11.  IAC (1st Dist.) affirmed trial court orders granting plenary OOP  and giving full custody to CXXXXXXXX plus a later order requiring DXXXX to have only supervised visits with his two girls Margaret XXXXXX (“XXXXXX”), now age 14 and XXXXXX XXXXXX (“XXXXXX”), now age 9 on 11/14/11. (Exhibit B) and denied Motion to Reconsider (Exhibit A) on 12/19/11 without comment.

STATEMENT OF POINTS RELIED UPON FOR REVERSAL

WHETHER THE CONTINUATION OF THE OOP CASE, AFTER IT TERMINATED NUMEROUS TIMES DUE TO EXPIRATION OF 30 DAY INTERIM OOP WAS AN ERROR OF LAW, A CONSTITUTIONAL DUE PROCESS VIOLATION AND SEPARATION OF  POWERS VIOLATION UNDER THE FIFTH AND FOURTEENTH AMENDMENTS AND A CONSTITUTIONAL VIOLATION UNDER THE SEPARATION OF POWERS CLAUSE? 

WHETHER FAILURE OF A CHILD REPRESENTATIVE TO SERVE PARENTS A PRE-TRIAL MEMORANDUM AS REQUIRED BY STATUTE, 750 ILCS 5/506(A)(3), WAS AN ERROR OF LAW, WHICH DENIED DISCOVERY AND VIOLATED DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, AS WELL AS, DUE TO NEGATING A STATUTE,  IT VIOLATES  SEPARATION OF POWERS UNDER THE SEPARATION OF POWERS CLAUSE? 

WHETHER THE IAC’S FINDING THAT A PARENT WAIVES ALL ISSUES ON APPEAL WHEN HE WALKS OUT OF A TRIAL, BECAUSE HE BELIEVES IT IS A SHAM AFTER HE WAS DENIED DISCOVERY, BECAUSE ONLY UNSUBSTANTIATED HEARSAY IS ALLOWED AS EVIDENCE BY PETITIONER ON AN OOP, AND THIS HEARSAY IS USED TO DENY CUSTODY IN THE DOM CUSTODY ISSUE, AS WELL AS BECAUSE HE BELIEVES THE OOP CASE HAD TERMINATED, VIOLATES DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS? 

WHETHER THE TRIAL COURT’S DENIAL OF AN EVIDENTIARY HEARING UPON A SECTION 2-1203 MOTION TO RECONSIDER DENIES A PARENT IN A DOM PROCEEDING DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS? 

WHETHER THE TRIAL COURT’S DENIAL OF AN EVIDENTIARY HEARING UPON A 750 IKCS 5/610(a) MOTION TO MODIFY CUSTODY ORDERS DENIES A PARENT IN A DOM PROCEEDING DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS?

WHETHER USE OF HEARSAY FROM A 13 YEAR OLD CHILD AS EVIDENCE, IN A COMBINED OOP AND DOM TRIAL, DENIES A PARENT DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS AND CONFRONTATION OF WITNESSES UNDER THE SIXTH AMENDMENT?

WHETHER THE IAC HAS VIOLATED DUE PROCESS  IN RULING THAT AN APPELLANT HAS FAILED TO PRESERVE THE RECORD WHEN THE JUDGE DENIES REQUEST FOR A COURT REPORTER AND THEN REFUSES TO CONSIDER A MOTION TO CERTIFY A BYSTANDER’S REPORT?  

STATEMENT OF FACTS

CXXXXXXXX and DXXXX were married on 12/31/95. DXXXX filed a Petition for Dissolution of Marriage, on 7/17/09 (C V1 p 002-011).

A child representative, WESSEL, Over objection by DXXXX, was appointed by the court on 4/9/09 (C V1 p 022)  Child representative WESSEL has never produced, or delivered to DXXXX or CXXXXXXXX, a 750 ILCS 5/506(a)(3) required “pre-trial memorandum”, which explains the “fact-based evidence” required by 750 ILCS 5/506(a)(3), which the child rep obtains by “reviewing the facts and circumstances of the case” as required by statute – replacing normal discovery as in other kinds of  civil cases.

CXXXXXXXX responded with a Petition for an Order of Protection on 11/30/09 (S p 61-65) supported by affidavit (S 66-75) in which first an emergency OOP was granted on 12/1/09 (C V1 032-033, S 76-78),  based solely on hearsay by CXXXXXXXX without an evidentiary hearing, but DXXXX’s visitation remained unsupervised. (S p 79-83) DXXXX was required to move off of the marital residence property per this order.

Preliminary OOP, dated 12/1/09 (C V1 p 032-033) resulted in custody given to CXXXXXXXX and un-supervised liberal visitation by DXXXX with his two young daughters, XXXXXX – then 12 years old, and XXXXXX – then 6 years old.

DXXXX responded to complaint for order of protection (denied allegations) to his attorneys, who negligently failed to file this written response with a formal written pleading. His attorney said, “don’t worry”, that the OOP would disappear with the granting of the divorce. DXXXX objected to his attorney to their failure to respond in writing. (S p 84)

A hearing concerning the petition for OOP was held on 12/15/09 (C V1 p37) and no evidence was presented beyond the affidavit filed by CXXXXXXXX for an emergency OOP (S p 66-75). There was no opportunity granted for a due process hearing regarding the interim order of protection. No written request for extension of OOP was ever filed by CXXXXXXXX. No oral request for extension of OOP was ever made by CXXXXXXXX. No due cause was ever stated or written as to why the OOP was extended 11 times.

DXXXX was told by his attorney and the child representative, WESSEL on December 15, 2009, outside of court,  that the OOP would expire and no action was needed, that DXXXX should ignore it as it did not affect his visitation as visitation was unsupervised per the 12/15/09 interim OOP  (C V1 p37 –missing pages, S 79-83).

The interim OOP issued on 12/15/09 was ordered to expire on 1/21/10. (C V1 p37).  On 1/21/10 the interim OOP was extended to 4/19/10 or “until entry of judgment for dissolution of marriage.” (C V1 p39). On 2/18/10 a 2nd interim OOP was written extending the OOP to 4/19/10 (C V1 p 45). On 4/16/10 the interim OOP was extended to 7/15/10 (C V1 p76-77). On 7/15/10 the interim OOP was extended to 9/17/10 (C V1 p147). On 9/17/10 the interim OOP was extended to 9/20/10 (C V1 p 159-160). On 9/20/10 the interim OOP was extended to 11/10/10 (C V1 p164-165). On 11/10/10 the interim OOP was extended to 1/21/11 (C V1 p169) and the children were removed from the OOP. The visits remained UNsupervised from 12/1/09 until 1/7/11,.

On 1/7/11 CXXXXXXXX filed a new petition for OOP with affidavit. (C V1 p203-207) On 1/7/11 a new preliminary OOP (C V1 p 212-217) was granted and supervised visits were ordered without an evidentiary hearing due to hearsay in affidavit alleging verbal abuse of XXXXXX. This was the ONLY evidence stated by Judge Haracz, in his written order of May 5, 2011 (C V2 p 412-419), as his reason to deny custody to DXXXX or require supervision and the ONLY evidence quoted by the IAC in their affirmation of Trial Court order upon appeal. 

Allegations were made to DCFS about DXXXX allegedly emotionally abusing his children. DCFS investigated and on 2/24/11 determined these allegations were unfounded (S p18, 43). This was reported to the child representative by DXXXX by facsimile and telephone on or around 2/28/11 (S p 84). Yet to date the visitation order remains for supervised visits only. No evidentiary hearing has been held on this matter and it is entirely based on hearsay (false statements). The only mental health exam of DXXXX revealed anxiety and post-traumatic-stress due to the divorce (C V1 p179-182).

Preliminary OOP was extended on 1/21/11 with an interim OOP which expired on its own terms on 2/20/11. On 2/23/11 the court held a hearing at which time DXXXX filed a denial of all allegations in the original 12/1/09 petition for OOP and the 2nd petition for OOP, which he filed in open court and with the clerk on 2/23/11 (C V2 p 258-267). The 2/23/11 interim order extended the OOP to 4/29/11.

On 2/23/11, the response filings of DXXXX denying all allegations of abuse were “stricken” by the court, which claimed that the filings “had no legal precedent,” and that the court had decided that this filing was “not evidence” and Judge Haracz said that “only I can decide what is evidence in my courtroom” (S p 84, C V2 p284 – four lines from the bottom).  DXXXX was prevented from requesting an explanation of these nonsensical words by the court when the court stated “shut up” to DXXXX (S p 84).

The Trial Court denied DXXXX’s two petitions for OOP against CXXXXXXXX (C V1 p 90-91; V2 p 394-398) The court held a “sham” hearing/trial on the OOP on 4/29/11. (S p 85-89). DXXXX objected that he had received no pre-trial memorandum from child representative WESSEL, that his request to compel it was denied (C V1 p 130-131), that he had not received his court file from attorney Schwabb, who had withdrawn and was replaced with DXXXX as pro se counsel, that there was no court reporter, and that he had received no discovery prior to trial. (S p 85, bottom half of page). Judge Haracz stated that having no discovery “didn’t matter.” (S p 85 –bottom of page).

Two witnesses in the gallery took notes and later wrote an affidavit. (S p 85-89). DXXXX moved the Court in an oral motion on 7/8/11 to enter this affidavit as a bystander’s report under Illinois Supreme Court Rule. Judge Haracz stated he would never approve a supplemental record or bystander reports. (SCA H, motion to IAC to approve supplemental record in IAC records). Therefore bystander reports are unavailable, except a few approved as a supplement by IAC (S p 85-89).

Judge Haracz stated that he had reports from Dupage County Family Center (“DupCFC”). Judge Haracz stated that this was the trial and proceeded to ask numerous questions including whether or not the reason for the divorce was irreconcilable differences.  DXXXX responded: “No, [CXXXXXXXX’s] Drug Addiction.” (S p 86)

The court only considered the affidavits of CXXXXXXXX for the OOP and an alleged letter from the parties’ 13 year old daughter, XXXXXX (C V2 p 415, ¶ N #4), which was never placed onto the record, delivered to the court by the child representative, which alleged to support some of the allegations of CXXXXXXXX. DXXXX was never given a copy of this alleged letter from his daughter. No other evidence was presented.

On 4/29/11 the court ordered a plenary OOP (C V2 p 408-411), despite having given DXXXX no due process and having heard no evidence other than statements from CXXXXXXXX without substantiating probative evidence (C V2 412-419). DXXXX orally informed Trial Court, on 4/29/11, that he was informed by DCFS that the allegations of abuse were investigated and unfounded (S p 84, 88 mid-page). The basis for the OOP was allegation by CXXXXXXXX that DXXXX was verbally abusing her during the marriage and the children after the marriage. (C V1 p212-217)

DCFSs “unfounded” determination from 2/11 (S p18, 43), was ignored by the Trial Court (C V2 p 412-419), when orally mentioned by DXXXX pre-trial and documented by him in a 1203 pleading post-trial (S p18). It was never presented to the Trial Court by child rep WESSEL, nor by CXXXXXXXX’s attorney (C V2 p 412-419).

The court, on 2/23/11, had faxed a plenary OOP to the DupCFC PRIOR to the alleged trial on the case, de facto proving that the Trial Court was biased and was making decision prior to hearing the facts (C V2 p276-277). This proved court bias.

DXXXX walked out of the trial at an early stage stating that he did not want to participate in a void proceeding, which was not recorded by a court reporter, and which he asked to be continued, in which there were systemic violations of due process, including: 1) the judge striking his written response to the petition for OOP,  2) the child representative not giving DXXXX a pre-trial memorandum informing him of the facts he would have to defend against, 3) opposing counsel and child representative not providing DXXXX discovery including statements by children during an interview not known by him with one written statement by XXXXXX that was being introduced at trial, without any prior knowledge of it by DXXXX and without the presence of the 13 year old child, and 4) no opportunity to prepare a defense due to lack of discovery as to specific allegations against him. (C V2 412-419, S p90) Judge Haracz confirmed in an order that there was no court reporter. (S p90)

Judge Haracz made a written order of dissolution of marriage on 5/5/11 (C V2 p412-419), revised due to scrivener’s error on 5/9/11 refusing to hear or consider DXXXX’s motion to reschedule the trial due to lack of discovery. (C V2 p412-419, S p85-89).

After supervised visits were ordered in 1/11 due to errors of the court no visitation occurred for 3 months until DXXXX had filed, on February 22, 2011, a motion to change the site to the DupCFC (C V1 p227-230) and had the motion heard on February 23, 2011 (C V2 p272). The Trial Court ordered on February 23, 2011 a change to the DupCFC for the two-hour visitations weekly (C V2 p272). It took another nearly two months for the DupCFC to arrange visits. No limits were put on number of visits by the Trial Court. However, the DupCFC only allowed one hour visits and without prior warning DupCFC has terminated visits after 12 visits because they are not allowed by their contracts and policies to provide more than 12 visits. Therefore DXXXX was left with de facto termination of his parental rights since July 2011. After DXXXX was hospitalized in August due to serious injuries from an accident at work (S p92-93), where DXXXX is an employee at Argonne National Laboratories skilled in numerous trades needed to maintain the equipment and structural plant. The DupCFC  has released reports of their 12 weeks of supervision that have been complimentary to DXXXX, describing excellent parenting skills and interactions with his children. (S p44-51, 84)

DXXXX filed a 1203 motion to reconsider on 6/6/11 (S p1-39) with attached evidence including the DCFS “unfounded” report and an affidavit from a severely disabled neighbor, XXXX XXXXXX, who caught CXXXXXXXX stealing her prescribed narcotics (S p 126), which was summarily denied without the Trial Court reading it 6/6/11, right after Trial Court granted DXXXX’s motion for leave to file it instanter (S p94).

DXXXX filed a 610(a) (SCA I, S p 95-153) emergency motion to modify custody orders due to endangerment of children and to protect the children from CXXXXXXXX’s drug-addiction (S 126) which was endangering them, on 8/15/11, but it was not heard until 9/30/11 in a non-evidentiary hearing (S p154-156), due to continuances related to DXXXX’s on the job injuries and hospitalization of 8/18/11 (S p 92-93). This Petition was denied for equal parenting but partially granted for supervision on 9/30/11 (S p154-156).

CXXXXXXXX filed a motion to increase child support and more restrictions. (S p192-195) but it had no evidence and was backed by no statute or case law – it was entirely conclusory and thus insufficient at law.  On 8/15/11 DXXXX filed a response to this motion requesting court to strike it as legally insufficient and denying all allegations. (S p196-215) On 9/30/11 no briefing schedule was ordered by the judge and an “evidentiary hearing” was held sue sponte by order of the court. DXXXX was denied opportunity to argue for his motion or present witnesses for cross-examination to support his motion and was told to “stop” every time he tried to explain anything to the court or object to having an evidentiary hearing on a legally insufficient motion by CXXXXXXXX for increase in child support without proper notice, briefing or scheduling of the evidentiary hearing.  (S p157-191) Judge Haracz refused to hear DXXXX’s response argument in support of his written response (S p196-215) to CXXXXXXXX’s motion for increased child support (S p 192-195) where DXXXX asks for the trial court to strike the motion as legally insufficient. (S p 157-191), as well as refused to order a briefing schedule on CXXXXXXXX’s motion. Instead he held a summary evidentiary hearing with no opportunity for DXXXX, who was still in great pain and recovering, to prepare.

Site of supervision requested by DXXXX, which his health insurance agreed to pay for, by a licensed professional counselor, Karyn Mehringer, known to DXXXX was denied based on child representative’s statement that the Mehringer was “part of that group” –presumably referring to a nationwide court abuse protest group, made of numerous other independent groups and individuals with various agendas, that had  picketed the  courthouse  on 8/12/11 and one of whose members had been putting evidence of criminal conduct by Judge Haracz and child representative WESSEL on her Internet web site, including details of the case at bar, but Mehringer had not participated in these protests or writings on this web site. (S p183-185)

Mehringer – who is certified by courts to supervise visitation, had participated in the protest groups’ meetings with legislators, when some of the protest group’s members had lobbied to change the law over the last two years, so as to limit the pay of child representatives under 750 ILCS 5/506 to $150 per hour (on par with the pay given to criminal defense attorneys in murder cases). (S p84)

Instead the Trial Court, after allowing child representative WESSEL to state hearsay about Mehringer and then give his opinion and recommendation to the Court, in violation of 750 ILCS 5/506, ordered DXXXX to travel an hour north to a counseling center picked by CXXXXXXXX and child representative WESSEL and pay a prohibitively large sum of money to visit his children.  The Trial Court refused to allow DXXXX to speak pro se and tell it that his accountant was preparing a  spread sheet as to changes in his income and deductions from his pay, that Worker’s Compensation had not yet determined his income after his accident of 8/18/11, and instead kept stating to to him to “stop”, with WESSEL chiming in that DXXXX had left the trial and the Trial Court stating that The Trial Court did ask WESSEL to investigate if the center could use student counselors to decrease the costs to DXXXX. (S p164-191) DXXXX had told the Trial Court that he recently had taken a serious fall at work and was seriously injured and had a drop in income, as well as that he didn’t know what his income was recently (S p 164-178).

The Trial Court ordered an increase in child support without evidentiary hearing based on a legally insufficient motion by CXXXXXXXX  (S p193-195)  for increased child support without any evidence, as well as numerous unsubstantiated, somewhat incoherent and rambling requests for protection from defamation by DXXXX’s family and friends, all of which were used by the Trial Court in its order of 9/30/11 as an implied reason to deny equal parenting and continue the OOP. (S p 154-156)

Finally, CXXXXXXXX has consistently defamed DXXXX as mentally ill (S p 170-191) due to his having taken a family leave of absence in 2010 to obtain counseling for “adjustment disorder” related to the stress of the divorce and stressors at work at the same time, which he stated to the trial court in a pre-trial motion for reduction in child support. (C V1 p179-182) There has never been diagnosed as suffering from mental illness, anger problems, or personality disorders. The court throughout the time in this appeal has never ordered DXXXX to undergo mental health evaluation.

V. ARGUMENT

WHETHER THE CONTINUATION OF THE OOP CASE, AFTER IT TERMINATED NUMEROUS TIMES DUE TO EXPIRATION OF 30 DAY INTERIM OOP WAS AN ERROR OF LAW, A CONSTITUTIONAL DUE PROCESS VIOLATION AND SEPARATION OF  POWERS VIOLATION UNDER THE FIFTH AND FOURTEENTH AMENDMENTS AND A CONSTITUTIONAL VIOLATION UNDER THE SEPARATION OF POWERS CLAUSE? 

An issue of first impression: The IAC erred in ignoring the following jurisdiction issue and simply pronouncing that they have jurisdiction, then ruling that all issues on appeal were waived when DXXXX walked out of the trial. Jurisdiction can never be waived. (See case law under C below).The court is statutorily bared from ordering an interim OOP that is valid for greater than 30 days:

750 ILCS 60/220 Duration and extension of orders [of protection].

Duration of emergency and interim orders. Unless re‑opened or extended.

. . .

(2) Interim orders shall be effective for up to 30 days. [Emphasis added by writer]

750 ILCS 60/213

Sec. 213. Continuances.

(b) Petitions for interim and plenary orders. Any action for an order of protection is an expedited proceeding. Continuances should be granted only for good cause shown and kept to the minimum reasonable duration, taking into account the reasons for the continuance. [Emphasis added by writer]

In a series of blatantly invalid orders made to extend 11 interim OOP beyond the 30 days allowed by statute and without any written or oral motions giving a “good cause” why the interim OOP should be extended, that would justify these orders of protection. These orders were extended despite the fact that unsupervised visitation occurred for a year without a problem and supervised visits occurred with glowing descriptions of a patient, non-dangerous, and well-bonded concerned father from May through July 2011 (S p206-209), as well as with the child representative and the court being fully aware that the allegations of neglect, harassment, and abuse were determined by DCFS to be “unfounded.” (S p18, 43)

The interim OOP issued on 12/15/09 was ordered to expire on 1/21/10. (C V1 p37).  However as it expired by statute on its own terms on 1/14/10, the OOP ceased to exist. As noted above the interim OOP was extended 11 times without request or basis.  On 1/7/11 CXXXXXXXX filed a new petition for OOP with affidavit. (C V1 p203-207) On 1/7/11 a new preliminary OOP was granted and DXXXX ordered to have only supervised visits. (C V1 p 212-217). ). Preliminary OOP was extended on 1/21/11 with an interim OOP which expired on its own terms on 2/20/11. On 2/23/11 the trial court extended it again to 4/29/11. On 4/29/11 the court held a trial regarding the OOP and extended it with a plenary OOP (C V2 p 408-411), which purportedly is presently in effect. The proceedings regarding OOP were invalid and void from 2/20/10 to 1/7/11 and again with the 2nd OOP from 2/20/11 to the present. All orders of court regarding OOP since 2/20/11 are therefore null and void.

There is no possibility of waiver of this issue of OOP because appearing in court or filing a denial of allegations of abuse is irrelevant when there is no legal proceeding in existence. A court cannot initiate a proceeding for an OOP for a litigant, based on a response to a non-existent expired interim OOP.

“An order or judgment is void in the absence of subject matter jurisdiction and may be attacked at any time.” Felzak v. Hruby, 367 Ill.App.3d 695, 855 N.E.2d 202 (2006)

Should a judge act in any case in which he does not have subject-matter jurisdiction, he is acting unlawfully and his orders are void, not just voidable, U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980).

An order is void where the public policy of the State of Illinois is violated [S.H.A. 750 ILCS 60/218 mandates that an “interim” order of protection is self-expires in 30 days unless within the 30 days it is extended by granting a motion], Martin-Tregona v. Roderick, 29 Ill.App.3d 553, 331 N.E.2d 100 (1st Dist. 1975).

The interim OOP expired on its own terms on 2/20/11 and therefore didn’t exist on 4/29/11 (at the ‘sham” trial). The court on 4/29/11 was acting unlawfully without authority when it issued the plenary OOP, which is void for lack of subject matter jurisdiction.

Lack of subject matter jurisdiction is not subject to waiver (see People v. Williams, 53 Ill. App. 3d at 337) and cannot be cured through consent of the parties (Toman v. Park Castles Apartment Building Corp., 375 Ill. 293, 302 (1940)). A ruling made by a circuit court in the absence of subject matter jurisdiction is void. Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 531 (2001)

Therefore both of the OOP were void at the time of trial and could not be used as a basis to make a custody order. As Judge Haracz and then the IAC used CXXXXXXXX’s affidavit in support of petition for OOP as fact and evidence the DOM trial order is also invalid. Then the fact that the Trial Court ordered DXXXX’s response to CXXXXXXXX’s affidavit stricken, the denial of due process and equal protection became further obvious. The custody order should be overturned and DXXXX given a new trial.

WHETHER FAILURE OF A CHILD REPRESENTATIVE TO SERVE PARENTS A PRE-TRIAL MEMORANDUM AS REQUIRED BY STATUTE, 750 ILCS 5/506(A)(3), WAS AN ERROR OF LAW, WHICH DENIED DISCOVERY AND VIOLATED DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, AS WELL AS, DUE TO NEGATING A STATUTE,  IT VIOLATES  SEPARATION OF POWERS UNDER THE SEPARATION OF POWERS CLAUSE? 

This is an issue of first impression: Discovery is a fundamental due process right that

gives meaning to a trial. A statutory pre-trial memorandum gives the litigant notice as to the issues and “fact-based legal evidence” to be used for custody determinations in a DOM trial (i.e. discovery, 750 ILCS 5/506(a)(3)).

To meet the requirements of due process, the state must afford notice and an opportunity to be heard “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ctt 1187, 14 L.Ed.2d 62 (1965). At 1094

The IAC erred in failing to view this issue as not waivable, plain error. Violation of discovery was the fault of the child representative WESSEL in failing to produce discovery (pre-trial memorandum) and condoned by the Trial Court. It had nothing to do with DXXXX walking out of the trial.

The court ruled in People v. Walker, –N.E.2d –, 2011 Il.App. (1st) 072889-B, 2011 3903149 (2011) that the waiver rule can be relaxed in the case where the fairness of a trial judge is in question and it is impractical to question the conduct of a judge during a trial.

“To properly preserve an issue for appeal, a defendant must object to the purported error at trial and specify the error in a posttrial motion”, and “[a] defendant’s failure to abide by both requirements results in forfeiture of appellate review of his claim.”

“The plain error doctrine provides a limited exception to the appellate forfeiture rule” by “permitting review of otherwise improperly preserved issues on appeal if the evidence is closely balanced or the error is of such a serious magnitude  that it affected the integrity of the judicial process and deprived the defendant of his right to a fair trial.”

The evidence was CXXXXXXXX’s testimony (unsubstantiated hearsay about what XXXXXX said DXXXX said) and is therefore closely balance. So, it was a he said, she said situation where the Trial Judge illegally struck his (DXXXX’s) argument and allowed her (CXXXXXXXX’s) hearsay. Denial of discovery can be argued to be of such a serious magnitude that it affected the integrity of the judicial process and denied DXXXX a fair trial.

Bias of a judge may also invalidate a ruling. Judge Haracz faxed an order for a plenary OOP to the DupCFC on 2/23/11, prior to the “sham” trial on 4/29/11. Although he later changed it and refaxed it, the fact that it was sent suggests bias. (Group SCA J).

In addition, it can be argued that Judge Haracz was so pervasively unfair that it would have been futile for DXXXX to stay at the trial and try to argue with him. (i.e. striking his response to CXXXXXXXX’s allegations, refusing to compel WESSEL to produce a pre-trial memorandum, telling DXXXX repeatedly to “shut up”, continuing endlessly the OOP without an evidentiary hearing, etc.,. The IAC erred in not considering this reasoning.

WHETHER THE IAC’S FINDING THAT A PARENT WAIVES ALL ISSUES ON APPEAL WHEN HE WALKS OUT OF A TRIAL, BECAUSE HE BELIEVES IT IS A SHAM AFTER HE WAS DENIED DISCOVERY,  BECAUSE ONLY UNSUBSTANTIATED HEARSAY IS ALLOWED AS EVIDENCE BY PETITIONER ON AN OOP, AND THIS HEARSAY IS USED TO DENY CUSTODY IN THE DOM CUSTODY ISSUE, AS WELL AS BECAUSE HE BELIEVES THE OOP CASE HAD TERMINATED, VIOLATES DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS? 

Issues of first impression in child custody cases can be decided even if waived: The appellate court may consider a waived issue if it “affects child custody and is an issue of first impression.” In re Marriage of Kostusik, 361 Ill.App.3d 103, 836 N.E.2d 147, 296 Ill.Dec. 732 (2005). Several of the issues in this case are issues of first impression.

The argument in B above is included as if part of this section. All OOP final orders are void due to statutory violations.

Jurisdictional issues are never waived. In Morrell v. Mock, 270 F.3d 1090 (2001), the court (in a ruling reflective of what is happening in this case at bar) ruled that:

[A] defendant challenging a court’s jurisdiction may ignore the court’s proceedings, risk a default judgment, and resist enforcement in a collateral attack on the first court’s jurisdiction. See, e.g. Williams, 325 U.S. at 2299-31, 65 S.Ct 1092; Chicago Life Ins. Co. v. Cherry, 244 U.S. 25, 29, 37 S.Ct. 492, 61 L.Ed. 966 (1917); Thompson v. Whitman, 18 Wall. 457, 85 U.S. 457, 469, 21 L.Ed. 897 (1873); Bd of Trs., Sheet Metal Workers’ Nat’l Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1034-35 (7th Cir. 2000); United States v. County of Cook, 167 F.3d 381, 388 (7th Cir. 1999) (observing that the exception from res judicata for collateral attacks challenging jurisdiction is necessary “because otherwise a court that lacked jurisdiction could strong-arm a party to litigate the subject, decide in favor of its own power, and thus block any review of its adjudicatory competence.”) Morrell at 1096

Lack of a pre-trial memorandum denies discovery and therefore prevents a meaningful hearing: To meet the requirements of due process, the state must afford notice and an opportunity to be heard “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ctt 1187, 14 L.Ed.2d 62 (1965). At 1094

Lack of subject matter jurisdiction is not subject to waiver and cannot be cured through the consent of the parties.  People v. Flowers, 208 Ill.2d 291, 303, 280 Ill.Dec. 653, 802 N.E.2d 1174 (2003).   In addition, “this court has an obligation to take notice of matters which go to the jurisdiction of the circuit court” in each case before us.”  Belleville Toyota, 199 Ill.2d at 334, 264 Ill.Dec. 283, 770 N.E.2d 177.

Petitioner maintains that CXXXXXXXX’s testimony (only record of it is in Trial Court’s order of 5/5/11, SCA D) was inadmissible hearsay, as well as false and unverified statements. This was also plain error that questions the integrity of the trial process.

Also, as the OOP case was void, CXXXXXXXX’s testimony cannot stand and be used for the divorce and custody case. Void orders cannot beget valid orders. They only beget void orders. Felzak v. Hruby, 367 Ill.App.3d 695, 855 N.E.2d 202 (2006). This is also plain error that questions the integrity of the trial process.

When a court exercises its authority, it “must proceed within the confines of that law and has no authority to act except as that law provides.”  People v. Brown, 225 Ill.2d 188, 199, 310 Ill.Dec. 561, 866 N.E.2d 1163 (2007).   A court “ ‘ “is not free to reject or expand its statutory authority despite the desirability or need for such action.” ’  [Citations.]”  In re Jaime P., 223 Ill.2d 526, 540, 308 Ill.Dec. 393, 861 N.E.2d 958 (2006).   Any action the trial court takes that is outside the statute’s stricture is void.In re Jaime P., 223 Ill.2d at 540, 308 Ill.Dec. 393, 861 N.E.2d 958.

Also fraud is one issue that negates jurisdiction if used to initiate a case, as it is well-settled Illinois law that any attempt to commit “fraud upon the court” vitiates the entire proceeding and removes jurisdiction. Fredman Brothers Furniture v Dept. of Revenue, 109 Ill.2d 202, 486 N.E. 2d 893 (1985); People v. Sterling, 357 Ill. 354; 192 N.E. 229 (1934). The OOP was obtained via a fraudulent affidavit as DCFS investigated and declared all allegations “unfounded”. Yet the Trial Court granted the OOP and refused to drug test CXXXXXXXX (despite allegations of her drug abuse, S p 88, 126) .

Continuing the OOP case after the case terminated is outside of the judge’s statutory authority. The plenary OOP is void. Also, as the case was closely balanced and serious error of failure of child representative to provide discovery (pre-trial memorandum) occurred, as well as because the judge’s actions were clearly egregious and biased, no issues were waived.

WHETHER THE TRIAL COURT’S DENIAL OF AN EVIDENTIARY HEARING UPON A SECTION 2-1203 MOTION TO RECONSIDER DENIES A PARENT IN A DOM PROCEEDING DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS? 

As the court concluded in People v. Vincent, 226 Ill.2d 1, 871 N.E.2d 17, 312 Ill.Dec. 617 (2007), it is a due process violation to deny an evidentiary hearing for a 1401 petition when there are material issues of fact, quoting Ostendorf v. International Harvester Co., 89 Ill.2d 273, 279, 60 Ill.Dec. 456, 433 N.E.2d 253 (1982). Same reasoning applies here.

WHETHER THE TRIAL COURT’S DENIAL OF AN EVIDENTIARY HEARING UPON A 750 IKCS 5/610(a) MOTION TO MODIFY CUSTODY ORDERS DENIES A PARENT IN A DOM PROCEEDING DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS?

Same argument as in D, fully incorporated here.

WHETHER USE OF HEARSAY FROM A 13 YEAR OLD CHILD AS EVIDENCE, IN A COMBINED OOP AND DOM TRIAL, DENIES A PARENT DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS AND CONFRONTATION OF WITNESSES UNDER THE SIXTH AMENDMENT?

The hearsay exception for a child’s testimony applies only in cases of sexual abuse

for a child “less than 13 years old”, 725 ILCS 5/115-10.  Here, there was no alleged sexual abuse and the child, XXXXXX, at trial was 13 years old. Hearsay testimony from a 13 year old is inadmissible. People v. Velasco, 216 Ill.App.3d 578, 159 Ill.Dec. 147, 575 N.E.2d 954 (1991).  Both the Trial Court and the IAC erred in allowing CXXXXXXXX to testify as to what XXXXXX is alleged to have said about what her father allegedly said to her. This is inadmissible double hearsay and the decision should be overturned.

WHETHER THE IAC HAS VIOLATED DUE PROCESS  IN RULING THAT AN APPELLANT HAS FAILED TO PRESERVE THE RECORD WHEN THE JUDGE DENIES REQUEST FOR A COURT REPORTER AND THEN REFUSES TO CONSIDER A MOTION TO CERTIFY A BYSTANDER’S REPORT?  

This is an issue of first impression: Illinois Supreme Court Rule 323(c) allows for preparation of a bystander’s report if a transcript is not available.  This report must be presented to the Trial Judge and certified by him/her.  In case at bar, DXXXX attempted to have approved a bystander’s report.  The Trial Court refused to look at it, but the IAC upon motion allowed it to be filed in the IAC (SCA K).  However, the IAC then said that all issues were waived for failure to preserve the record. (SCA B) The IAC erred in attributing the failure to preserve the record to DXXXX instead of attributing it to the Trial Court. The orders of the IAC should be overturned due to this denial of due process and the IAC should consider all issues as not being waived.

CONCLUSION AND PROPOSED RULING

As a result of this proposed ruling and subsequent appeal, this Honorable Court should grant leave to appeal  or appeal as a right and declare OOP void ab initio, declare that failure to provide a pre-trial memorandum denied discovery and due process and vacate the trial orders, declare that evidentiary hearings are required on 1203 and 601(a) motion, declare that hearsay from a 13 year old is inadmissible evidence, declare that the judge’s refusal to follow statutes and due process means that his rulings are void and no issues were waived. Therefore a new trial should be granted and immediate custody should be granted to DXXXX, with orders to drug-test CXXXXXXXX out of an abundance of caution.

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct. 

Dated January 22, 2012. Respectfully Submitted,

_____________________________

DXXXX F. XXXXXX

Petitioner-Appellant-Petitioner Pro Se

No. XXXXXX

______________________________________________________________________________________

In the

 SUPREME COURT

Of The State of Illinois

______________________________________________________________________________________

)  Petition for Leave to Appeal

IN RE MARRIAGE OF )

DXXXX XXXXXX )  On Appeal from Appellate Court, First

Petitioner-Appellant-Petitioner (divorce) )  District, No. 11-XXXX

Respondent-Appellant-Petitioner (OOP) )

)  There Heard on Appeal from Circuit

)   Court of Cook County,

v. )   Domestic Relations Division

)

)   No. 09 D XXXXXX

)

CXXXXXXXX XXXXXX )   Honorable Judge David Haracz,

Respondent-Appellee-Respondent (divorce)) Trial Judge

Petitioner-Appellee-Respondent (OOP) )   Order of Trial Court April 29, 2011

) Revised on May 9, 2011

)   Order of Appellate Court

) November 14, 2011

)   Order on Motion for Rehearing

)                      December 19, 2011

To: CXXXXXXXX M. Wood County of Cook )

XXXXXXXXX )  Ss.

XXXXXXX  XX  XXXX State of Illinois )

NOTICE OF FILING OF PETITION AND PROOF OF SERVICE AND AFFIDAVIT

PLEASE TAKE NOTICE, that an original and 19 copies of Petition for Leave to Appeal . . . attached  was filed by mail delivery with the clerk of the Illinois Supreme Court, at Illinois Supreme Court Building, 200 E. Capital Ave., Springfield IL, 62701 on January 23, 2012.

I, DXXXX XXXXXX, affirm that on the 23rd day of January, 2012, I served a copy of the foregoing Notice of Filing Petition, and above stated Petition on the above named individual and by U.S. Post Office postage prepaid before 5:00 p.m..

__________________________

Mr. DXXXX F. XXXXXX, Pro Se

SWORN to and AFFIRMED before me this 23rd day of January 2012.

_________________________________________

Notary Public

DXXXX F. XXXXXX

XXXX XXXXXX XXXX

XXXXXX XX XXXXX

XXX XXX-XXXX

Petitioner-Appellant-Petitioner, Pro Se

No. XXXXXX

______________________________________________________________________________________

In the

 SUPREME COURT

Of The State of Illinois

______________________________________________________________________________________

)  Petition for Leave to Appeal

IN RE MARRIAGE OF )

DXXXX XXXXXX )  On Appeal from Appellate Court, First

Petitioner-Appellant-Petitioner (divorce) )  District, No. 11-XXXX

Respondent-Appellant-Petitioner (OOP) )

)  There Heard on Appeal from Circuit

)   Court of Cook County,

v. )   Domestic Relations Division

)

)   No. 09 D XXXXXX

)

CXXXXXXXX XXXXXX )   Honorable Judge David Haracz,

Respondent-Appellee-Respondent (divorce)) Trial Judge

Petitioner-Appellee-Respondent (OOP) )   Order of Trial Court April 29, 2011

) Revised on May 9, 2011

)   Order of Appellate Court

) November 14, 2011

)   Order on Motion for Rehearing

)                      December 19, 2011

SUPREME COURT APPENDIX 

STATE OF ILLINOIS

COUNTY OF COOK

AFFIDAVIT

DXXXX F. XXXXXX, being first duly sworn and on oath, deposes and states that the attached appendix is an authentic copy of documents therein contained.

__________________________

DXXXX XXXXXX, Pro Se

Prepared By: SWORN to and AFFIRMED before me this

DXXXX F. XXXXXX 23rd day of January, 2012

XXXX XXXXXX XXXX

XXXXXX XX XXXXX _____________________________

XXX XXX-XXXX Notary Public

SUPREME COURT APPENDIX

TABLE OF CONTENTS

Appendix Letter page

December 19, 2011 IAC denial of motion to reconsider A 1

SCR 23 Opinion of IAC affirming Trial Court decision B 2-13

4/29/11 Order of Protection C 14-17

5/5/11 Dissolution of Marriage Order D 18-26

6/6/11 Denial of 1203 Motion to Reconsider (S p 94) E 27

6/6/11 Section 1203 Motion to Reconsider (S p 1-39) F 28-67

DXXXX’s Appellant’s Brief G 68- 124

Motion to IAC by DXXXX to approve bystander reports H 125-129

7/5/11 DXXXX’s 610(a) to Change Custody I 130-197

2/23/11 Orders of Trial Court J 198-200

11/3/11 IAC Order allowing bystander reports (supplemental record) K 201-203

SUPREME COURT APPENDIX

In re Marriage of DXXXX XXXXXX v. CXXXXXXXX XXXXXX

No. XXXXXX

No. XXXXXX

______________________________________________________________________________________

In the

 SUPREME COURT

Of The State of Illinois

______________________________________________________________________________________

)  Petition for Leave to Appeal

IN RE MARRIAGE OF )

DXXXX XXXXXX )  On Appeal from Appellate Court, First

Petitioner-Appellant-Petitioner (divorce) )  District, No. 11-XXXX

Respondent-Appellant-Petitioner (OOP) )

)  There Heard on Appeal from Circuit

)   Court of Cook County,

v. )   Domestic Relations Division

)

)   No. 09 D XXXXXX

)

CXXXXXXXX XXXXXX )   Honorable Judge David Haracz,

Respondent-Appellee-Respondent (divorce)) Trial Judge

Petitioner-Appellee-Respondent (OOP) )   Order of Trial Court April 29, 2011

) Revised on May 9, 2011

)   Order of Appellate Court

) November 14, 2011

)   Order on Motion for Rehearing

)                      December 19, 2011

ORDER

This cause to be heard on Petitioner’s Pro Se Motion for Leave to file Appeal as a Matter of Right or in the Alternative a Petition for Leave to Appeal, proper notice having been served, and the Court being fully advised in the premises:

It is HEREBY ORDERED that the Motion by Petitioner is  allowed  /  denied

_______________________ _____________________________

Justice Justice

_______________________ _____________________________

Justice Justice

_______________________ _____________________________

Justice Justice

_______________________

Justice

No. XXXXXX

______________________________________________________________________________________

In the

 SUPREME COURT

Of The State of Illinois

______________________________________________________________________________________

)  Petition for Leave to Appeal

IN RE MARRIAGE OF )

DXXXX XXXXXX )  On Appeal from Appellate Court, First

Petitioner-Appellant-Petitioner (divorce) )  District, No. 11-XXXX

Respondent-Appellant-Petitioner (OOP) )

)  There Heard on Appeal from Circuit

)   Court of Cook County,

v. )   Domestic Relations Division

)

)   No. 09 D XXXXXX

)

CXXXXXXXX XXXXXX )   Honorable Judge David Haracz,

Respondent-Appellee-Respondent (divorce)) Trial Judge

Petitioner-Appellee-Respondent (OOP) )   Order of Trial Court April 29, 2011

) Revised on May 9, 2011

)   Order of Appellate Court

) November 14, 2011

)   Order on Motion for Rehearing

)                      December 19, 2011

CERTIFICATE OF COMPLIANCE WITH PAGE LIMIT AND FORMAT REQUIREMENTS.

I, DXXXX XXXXXX, Defendant Pro Se, certify that this Petition conforms to the requirements of Illinois Supreme Court Rules 315 and 317. The length of this motion, excluding appendix and cover page is 20 pages.

Dated: January 22, 2012 ______________________________

DXXXX XXXXXX

SCA = Supreme Court Appendix

C V_p = common law record, volume X page Y

S = Supplemental record on appeal

PAGE   \* MERGEFORMAT 2

PAGE

PAGE  2

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