Oral argument — In re Marriage of Clark

Okay, the next case on the docket is In re Marriage of Clark 519-0145 Miss Kenison Welcome back Good morning, yes I'm wondering where to find this place now Good morning, your honor I don't think that's a good thing to happen You'll find it Okay Good morning, your honors Good morning, counsel I'm here on the Clark case Judge Keevlin's name has been used less I think we have We have a Judge Keevlin matter In this case This was a pro se Both parties pro se Came to court And got a divorce Got a settlement agreement And if you look at the document that was filed The judgment and the joint pairing agreement It's in the handwriting Almost exclusively of the wife I represent the husband And Judge Keevlin wrote in a little bit But the wife wrote in the debts of the properties The three properties That home She also wrote in the cars She wrote that in herself She's the one that wrote She forgot to write in a portion of the award She did write in the debts But didn't award the properties However There's a transcript of what occurred And everybody was sworn in On February 3rd, 2015 And Judge Keevlin went in detail About the two of you on some real estate When Mr. Clark and Mrs. Clark was up there One home in Belleville And two parcels down in East St. Louis That are rental property So they knew about this It was very evident They agreed to it And in fact If you read the petition that she That Mrs. Clark entered Or filed with the court She talks about the marital property As marital property Not non-marital property And she wanted it She actually asked for it in her petition She said I've been living there For the last two and a half years Without Mr. Clark Now Judge Keevlin went on to say In the transcript You understand you're responsible For the mortgage, real estate All of those things Is that correct? Mrs. Clark Yes But Mrs. Clark also went on And got the Dodge Durango She wanted awarded to her And she got the other car Well, fast forward She took the benefit of the judgment Took the Dodge Durango Subsequently And traded in on the Mercedes 2015 Mercedes And it was $44,000 Is what the invoice said But she took that benefit Now She's living in the house He's not there And the judgment The written judgment Fails to include the three pieces of property However The transcript included it And at this time The statute did not prohibit Saying If it isn't in the written judgment Therefore it's no good The legislation at that time provided The transcript If it's there Shows what was awarded What the judge entered And what was the order of court You correct that In the written All you do is Actually put the words in Of the judgment in the written document Subsequently Excuse me Subsequently the legislator Changed the statute that required If the court ordered a written judgment The final judgment Would be the written one But not at this time This was done separately Now She lived in that residence She paid the mortgage On the residence And she took the mortgage interest As a deduction For each year on the residence And now she says it's not my property I didn't know anything about it I moved But what she did 38 months after the judgment Was give him A proposed order To give him back the properties Which he refused And then she She sent him A termination of lease Saying I'm terminating my lease as of May Not only her but the children Are supposedly on this lease And she sent that as a notice of termination Counselor Remind us On what grounds the trial court Pardon me Remind us please on what grounds the trial court Decided to vacate the judgment If all this happened Well I wasn't there This was done without a hearing Without notice We had set up a hearing before the court Denying the allegations Of coercion Of misrepresentation Mutual mistake No fraud was pled Nothing else was pled We denied it And we filed a motion to dismiss it And if you read her order She did it based on pleadings I wasn't present In effect I didn't know about the order Being entered Until I called opposing counsel And found out it was entered If I'm looking at a Two page handwritten order Yeah well right now I'm looking at A case management order Filed January 8, 2019 Looks like counsel is in court Looking on the second page It says parties have scheduled depositions Yes Parties had agreed to a Continuance of hearing And reset I think March 5th March 25th was the Entry of the order by Judge Keevlin Which I've got another case management From March 5th From Judge Foley Looks like again you all were there Counsel was there We were trying to schedule Depositions and there was a problem And then in the meantime While you're trying to schedule depositions To get ready for this hearing We actually had a hearing date scheduled To argue the motions You had a date set? We had a date set prior to that Judge Keevlin on her own On March 25th, 2019 Entered this order Reviewing our motions To vacate, reopen Motion not protect An entry of order awarding properties I'm not sure what that order was I know I didn't file it And at that she said she reviewed And based on the pleadings She vacated the judgment 38 months later There was no due diligence argued There was no compelling reason There was no 2-1401 petition No petitions were filed No And I filed a motion based on 2-1401 That said certain things have to be there For 2 years You have to show that she was under legal disability No pleadings even said Duress There was no specific allegations as to Duress or fraudulent concealment And that's the only way To get beyond the 2 year period So I don't know how she entered this But I do know that She also got rid of the joint Pairing agreement and the judgment My client remarried After this judgment And it's odd how the problem Around the house and real estate Sort of co-exists With the time he got engaged and remarried Well the judgment Of dissolution and the marital property Issues There were no custody issues Joint pairing agreement And she vacated that Well that You would agree that a joint Pairing agreement could be subject To modification more than 30 days after the judgment Actually she filed a motion To modify it I believe in December 26th The parties had mediated it Okay so there is a Question about jurisdiction as far as That issue goes Jurisdiction argument really relates to The vacating of the Dissolution of marriage and the property Well how can you modify A joint pairing agreement When you set it aside in the first place What are you modifying Well Okay from a timing point of view Then tell me When did you You had a motion to modify No I didn't the other side I'm sorry there was a motion to modify prior to her vacating Correct There was a mediation prior to her vacating Correct Was there an agreement prior to her vacating Yes December The end of December the year before She vacated So there was really no longer an issue In what she vacated That had already been resolved by the parties The modification Well is it a temporary order She vacates it is it a permanent order What did you all agree to in the modification We thought it was a final judgment So therefore we believe It was a final order Final judgment No but when you modified Did you follow that up with a written order Actually she entered the order Signed it And what was the date of that December I think 26, 2018 But I'm doing that for my memory I understand So that was the modification order And if I can point to the court No one asked for the joint pairing agreement To be set aside And in fact nobody really asked for the judgment itself Only the settlement agrees And the judge had taken it upon herself To set everything aside I think she's done that before In this present court in one case Where In an adoption of a fitness issue And I didn't cite it So I didn't want to cite it here Okay Anything else I think this is a final judgment I believe that There was What relief are you seeking To set aside The vacation order In its entirety In its entirety The order of March 25th Find that it is a final judgment And Find that the Original Judgment of dissolution And property settlement agreement And joint pairing agreement Were final orders And then what about This modification I believe the parties can Agree to it subsequently Because if you reinstate The judgment of the joint Pairing That by its nature would Resurrect the joint pairing Or the parenting allocation Order that was entered in 2018 And also To correct The written record I would ask the court To order that the non-proton To reflect the addresses Of the parties being entered In the final judgment And Not only dedicate but also finding that The Petitioner here Mrs. Clark, the respondent here Has not complied with 12-2-14-01 12-2-14-01 And therefore The trial court had no Jurisdiction To enter the order To enter the order Yes Now What I did I filed the motion to dismiss And I also filed a response Because of my concerns And actually what happened Was one of my concerns The judge would enter an order If I had not responded Saying well it's a default You are not responding Therefore everything pled And even though they were Vaguely pled Even though they were just Large terms Unconscionability The other thing is due diligence This is 38 months later There's nothing in there to indicate Why she couldn't get by That she didn't know about all these issues Within those 38 months You cannot just sit back And then okay Now I'm on the file Thank you I can still say good morning For another three minutes So good morning Your honors May it please the court My name is Jean I represent The appellee Respondent Tiffany Lacey Clark And This appeal can And should be disposed of On the basis that this court This court has no jurisdiction Because this appeal Was brought under Illinois Supreme Court rule 301 Which governs final and Appealable orders And that order From March of 2019 Is not a final and appealable order Why not? It Actually There is much more to be done in this case This case is not concluded Especially as a result of the court Granting our motion to vacate Now the entire Can of worms have been opened up And it is not a final order Because there are issues That still have to be resolved This would be akin to If a court denied a motion to dismiss This is a pot fly If a court denied a motion to dismiss You have to get permission from the court To appeal that That is not a final order Neither is this The case was not done The case was not concluded As a result of this court's Granting of the motion To vacate The So I think That should be looked at First Second is the argument Whether the trial court had jurisdiction To vacate the judgment The Appellant Filed both A motion to dismiss And a response to our motion And I have cited Case law that where you Respond to such a motion With an answer That you have waived Any defects In the pleadings So any You can't waive subject to matters of jurisdiction though Correct Correct I mean if If the If the court did not The trial court did not have subject matter Jurisdiction to enter the order Vacating Then how is the fact that they Responded Waiving subject matter jurisdiction It can't be done I don't believe this is Really an issue of subject matter jurisdiction I mean the court had subject matter Jurisdiction How can the court have subject Assuming that this court The appellate court Has jurisdiction For the first argument For just a moment How is it that Three years Basically after the divorce Is entered as to the Dissolution and at least the property How is it that you Obtained the right To come in three years later And file a motion to set that aside Well I believe from what we had Pleaded In our motion Regarding the Duress and the coercion And We didn't say unconscionability But in my research I was looking at this And the fact that There were Other assets And debts that were not included In this judgment Is hugely unconscionable And I believe that the case is saved At any time there is an unconscionable judgment It can be set aside But you did file an affidavit And I believe that Their answer To our motion Waives that That is a procedural pleading issue As to whether we Filed an affidavit That would have been subject of the motion to dismiss But you didn't comply with any of the Procedural requirements in a 1401 for example Petition I believe that we did I believe that we alleged the things that we needed to allege Okay And if You didn't allege them all You believe that merely by them filing an answer They waived Any Defects That you had in your pleadings Yes and I think that the Cases Entering the marriage of Johnson case And the people versus Harvey case Speak to those issues But You know Moving along to Even more procedural How does a litigant such as her client Get any finality Such as remarriage For example More than 30 days after the judgment How do you get finality If you can always set it aside Three years later Her husband is remarried Now is he committing adultery No I don't believe so I believe that the court can Keep the dissolution of the marriage But this court Judge Keevan wiped it all out As I understand it By your order I believe what she was wiping out Was the What was contained in that judgment As far as how property And debts were distributed But she set aside everything Right True So I mean at least you would agree That perhaps she shouldn't have set aside The dissolution No I would not disagree with that Definitely But that that Set aside the quote Breaking the bonds of marriage As you used to call it Correct And that leads me to some questions That you had asked of Ms. Gossage Regarding modification Of this joint parenting agreement If the joint parenting agreement was set aside We actually Have a new parenting plan That was entered into So whether Judge Keevan set aside The joint parenting agreement That existed at that time Is moot Because we entered into a new one And she did not set that aside But how can you have a New joint parenting agreement Without a judgment of Dissolution of marriage Um It's done very frequently A lot of times we file And approve our joint parenting plans Prior to a judgment of dissolution Ever being entered What about the fact That there was no hearing on this I believe that that Is in the judges discretion Um in fact the I think when a judge is affecting Property rights like this They can do it without But she's protecting property rights Because we brought up and it's never been Contested that in addition to The property that was not listed in the judgment There are debts I understand These people have a tax debt I understand that from your perspective She was protecting your client But what about the existence of What had occurred Three years prior I mean we have a situation We have another side We have litigation going on We have depositions being set And all of a sudden without anybody Knowing we have an order Setting all of the original aside I mean No hearing Well um The court does have discretion Under NRA the marriage of Chapman To Vacate without having a hearing Um that is within The courts discretion Vacate property rights And dissolution And everything Right you don't necessarily have to have a hearing Um And I think That it is very important That you know the court looked at My pleadings Looked at Ms. Gossage's pleadings And said this original judgment Is just is wrong There are things that were left out Let's start over Why not go with the non-proton Suggestion by opposing counsel Something's left out and it's on the record It wasn't on the record though That there was a loan There were credit card debts And an IRS debt That Were not addressed in that judgment And I Believe that it just Screamed out for someone To take another look at this And address those issues Especially an IRS judgment Against the parties Filing a joint tax return That was from 2014 This is one of the problems That people face when they go in And do things pro se You get what you pay for In other words yes that is true Um but it doesn't Necessarily mean that something unconscionable Has to happen to these People as a result of Them maybe not wanting to Pay for an attorney Um I You know I have Come back and cleaned up a number Of cases where people Proceeded pro se And they have Done themselves a great disservice And I think what Judge Keeley Was doing here was trying to Do a service For these parties who had come before her And didn't have everything In front of her Um and I think that she thinks they need A clean slate to look At all of these debts All of these properties And either come up with an agreement That's conscionable or have a judge Determine what is Fair for these people And that's what this is It's an equitable decision It is in the court's discretion In all of these cases that I cite It's discretion upon discretion Upon discretion And I believe that There has been no showing That she abused her discretion Um I think that she used Her discretion correctly In order to Correct errors that were made In this original judgment And try and get a fair Result for these people Who appeared before her And entrusted the court With those things that are Most important to them Um so I Think that she did exercise Her discretion in doing that Um the The filing of Or the granting of the motion For non-pro-tunk I think you don't have to Really decide that because We ordinarily would be going back And looking at all of these Items that were left out Of the judgment Um I just Although it would be The easiest to say You have no jurisdiction Because of the 301 issue Um but even so I think that You should Affirm the decision Even if you find that you have jurisdiction Because what the court did Was within her discretion and was Fair and equitable to these people Any questions? No? Thank you very much So Closing comments? Yes Okay Equitable? My client walked away from the equity In the house, the equity in the three Um pieces of Rental property, the equity in the Car or whatever, he's not complaining He understood This is not a naive or stupid Woman, she has a PhD In psychology So we're not talking someone who's easily Led astray or manipulated What about the argument that we Lacked jurisdiction under Rule 301? I believe 1401 Is the one that controls Everything was taken care of Personal property was awarded to the person Who passed it I believe the debts were awarded to the people No but the order that you're appealing from Is the order vacating Yes An order vacating does Send things back to their original form Now whether or not that was Proper or not Is I'm not sure how that gets before us If it's not a final judgment Under 301 Maybe another rule, I don't know I think there's other methods To bring this before the court Not the motion to vacate Not the order vacating There may have been other methods to bring The issue of whatever Wasn't put into the judgment But not under The 1401 Provisions which was done here Wait She didn't grant the 1401 Did she? No she just vacated, well it depends We're not sure on her own motion We just haven't heard a copy out of the court From what I could gather reviewing I believe Ms. Aubuchon And her client filed it under 1401 It's two years I understand but I'm looking I'm talking about the actual order itself Probably I'm just wondering Is that a final judgment or not? The motion to vacate And set aside The actual order that she entered Not the motion The order she entered Was without a hearing So how do you enforce an order When the other side said No I disagree With the allegations And the allegations In marital Orders are Kind of a conundrum Because what is final and what is not In marital cases It's kind of a conundrum As to what is final and when it's final And when it's not I think both sides agree That it was error to Set aside the dissolution Breaking the bonds of matrimony So to speak in the old terms That was error And the judgment And the judgment of dissolution itself Because it's Under the 14 That's the only way you can bring it in The judgment to set aside her final judgment Is under 1401 And it must be Brian It must be within two years Again she knew all about this For the last three years Prior to the order entered But prior to her filing And did nothing You can't just sit there She had knowledge of it She chose not to do what most Attorneys would have done Put paperwork together She chose not to In fact she wrote up the orders herself So it should be presumed Against her because she was the party Writing that She The items That weren't listed in the judgment Well there have been cases on that That said fine you go to court If you represent yourself At your own expense At your own peril And that's what we have here She wanted the car She wanted the house And she wanted the three pieces of rental property And she knew about the debts The IRS debt She would have known about But she chose not to present it to the court Now I don't know anything about it It may be her debt I don't know anything about it Um We We did not waive Jurisdiction The waiver It can't be a waiver If the statute provides Must be brought within two years Or you can't waive subsequent Jurisdiction So we didn't waive it And as I told the court before I was concerned about the trial court Doing what she did I think this is an abuse of discretion By the trial judge And again She has I don't know Had stuff set aside Based on pleadings Not on evidence Not on hearing Not on affidavits As required Thank you Thank you Thank you both Good holiday This matter will be taken under Advisement of the National Energy Court That completes the morning docket It's 1215 We will resume at one