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Curry v. Lopez

United States District Court, N.D. Illinois, Eastern Division

December 4, 2017

MARK JOSEPH LOPEZ, Associate Judge, Circuit Court of Cook County, Illinois, in his individual capacity a/k/a Honorable Mark J. Lopez; JANE FELDMAN FIELDS, a/k/a Law Offices of Jane F. Fields d/b/a Law Offices of Jane F. Fields; CONSTANCE VERNETTE CURRY; and, GREGORY EMMETT AHERN, JR., Associate Judge, Circuit Court of Cook County, Illinois, in his individual capacity a/k/a Honorable Gregory Emmett Ahern, Jr., Defendants.



         Plaintiff John G. Curry has been embroiled in litigation with his ex-wife, Defendant Constance V. Curry, concerning custody and support for the couple's two children. The litigation is pending in the Circuit Court of Cook County. Curry has now turned to this court, alleging that his former wife, her attorney, and two state court judges have violated Plaintiff's rights under state and federal statutes and the United States Constitution. Defendants Constance Curry and her attorney, Jane F. Fields, have moved to dismiss the case, as have Defendants Mark J. Lopez and Gregory E. Ahern, both Associate Judges of the Circuit Court of Cook County. Plaintiff moves for certain miscellaneous relief, as well, including an order requiring Defendants to reimburse him for the costs of service of process in this litigation. For numerous reasons, this case must be dismissed. The motions to dismiss [17, 22] are granted, and Plaintiff's motion [6] is granted with respect to cost of service and otherwise denied.


         Curry's allegations are presumed true for purposes of this motion. Berger v. Nat'l Coll. Athletic Ass'n, 843 F.3d 285, 298 (7th Cir. 2016). Plaintiff alleges that until 2015, he was employed with the Chicago Fire Department. (Compl. ¶ 4.) He and Defendant Constance V. Curry, the parents of two children, have been divorced since 2007. (Id. ¶¶ 10-17.) In 2006 and 2007, the Currys entered into a series of custody agreements providing that Ms. Curry had sole custody of the children, Mr. Curry's income from the Chicago Fire Department would be garnished by $1, 070 per month to provide financial support, and Mr. Curry would inform Ms. Curry within thirty days of any changes to his income. (Id. ¶¶ 15-17.)

         For the next several years, the Currys resolved disagreements concerning their children and finances informally. The accord broke down, however, in late 2014, when text messages from Plaintiff's son generated concerns about Ms. Curry's behavior, and Plaintiff petitioned the Circuit Court of Cook County to award him custody of both children. (Id. ¶¶ 18, 19, 21.) The case was assigned to Defendant Lopez. (Id. ¶ 22.)

         Judge Lopez ordered the Currys to participate in mediation. (Id. ¶ 25) Shortly thereafter, Ms. Curry, through her attorney, Defendant Jane Fields, requested that Mr. Curry make certain financial disclosures. (Id. ¶ 30.) On June 16, 2015, Judge Lopez found Mr. Curry to be in indirect civil contempt, citing his “contumacious willful failure” to inform Ms. Curry of increases to his income. (Id. ¶ 35.) The following month, the judge modified the child support obligation, increasing Mr. Curry's monthly payment to $1, 825. (Id. ¶ 39.) Judge Lopez also ordered Mr. Curry to pay an additional $365 per month in “retroactive child support and interest.” (Id.)

         On August 16, 2015, Mr. Curry retired from the Chicago Fire Department. (Id. ¶ 40.) He notified the Circuit Court and his ex-wife that he would not have any income for up to two months following his retirement, at which point he would begin receiving pension benefits. (Id. ¶ 41.) Mr. Curry moved for a reduction in his support obligation in light of his reduced income, but Judge Lopez denied the motion on the ground that Plaintiff had left his job voluntarily. (Id. ¶¶ 43, 47.) The court also ordered Mr. Curry to pay $4, 200 in attorney fees at a rate of $500 per month. (Id. ¶ 103.) On Ms. Curry's motion, the court also ordered Plaintiff to execute a Qualified Illinois Domestic Relations Order (QILDRO) and consent to a monthly garnishment of $2, 190 from his pension income. (Id. ¶ 44.) Mr. Curry executed the QILDRO on a court form that included information concerning state and federal limits on withholding. (Id. ¶ 45.)

         Though he executed the QILDRO, Curry challenged the validity of this arrangement by filing a new action in the Circuit Court of Cook County. (Id. ¶¶ 45, 46.) Judge Thomas R. Allen, who is not a party here, dismissed this new action, pointing out that the proper “procedural avenue was to appeal Judge Lopez's order.” (Id. ¶ 46.) Then on December 17, 2015, Judge Lopez again found Mr. Curry in indirect civil contempt, this time due to Mr. Curry's failure to submit payments for three months following his retirement. (Id. ¶ 47.) Mr. Curry sought a modification of that order, arguing that the garnishment amount exceeded regulatory guidelines and his personal finances, but Judge Lopez rejected the argument and denied a subsequent motion for reconsideration. (Id. ¶¶ 51, 52.) The Illinois Appellate Court affirmed the contempt child support order and the contempt finding. See Curry v. Curry, No. 1-16-0965, 2016 WL 7208982, at *4 (Ill.App.Ct. Dec. 9, 2016). The Appellate Court concluded, however, that it lacked jurisdiction to review the denial of Mr. Curry's petition for modification of the child support obligation because it was not a final order. Id. at *2. Plaintiff sought leave to appeal that ruling to the Illinois Supreme Court (id. ¶ 85); his petition was denied on May 24, 2017. (Pl.'s Resp. in Opp. to Defs.' 12(b)(6) Mot. to Dismiss [30], at 7.)

         Mr. Curry eventually withdrew his custody petition. (Compl. ¶¶ 58-60.) For reasons not revealed in the complaint, at a hearing on October 26, 2016, Judge Lopez ordered Mr. Curry to be taken into custody. He withdrew the order only after Plaintiff offered to pay outstanding financial obligations with funds he expected to recover from a settlement in an unrelated case. (Id. ¶ 62.) Judge Lopez agreed to this arrangement on the condition that the settlement proceeds be tendered directly to Defendant Fields and held in her Interest on Lawyer Trust Account (IOLTA) “for further determination of allocation by this Court.” (Id.) Mr. Curry ultimately tendered $69, 000 from these funds at a hearing on April 28, 2017. (Id. ¶¶ 91-92.)

         In the meantime, Mr. Curry successfully sought substitution of Judge Lopez, and the custody dispute was reassigned to Defendant Ahern. (Id. ¶¶ 66, 70-72.) On February 6, 2017, Mr. Curry filed a “Petition for Punishment, For Prosecution, and For Other Just and Proper Relief, ” but Judge Ahern “refus[ed] to recognize” that Petition and ordered Plaintiff to obtain leave of court before filing any additional pleadings. (Id. ¶¶ 79, 150-57.) On April 28, 2017, Judge Ahern ordered Mr. Curry to “maintain a job diary of at least 5 contacts per week.” (Id. ¶ 161.) Two months later, Judge Ahern ordered that the funds being held in Ms. Fields' IOLTA account be used to pay Ms. Fields' attorney fees and some or all of Mr. Curry's delinquent support obligations, and that Plaintiff's monthly support obligation increase to $2, 489.52. (Pl.'s Mot. for Miscellaneous Relief [6], at 3-5.)

         Mr. Curry filed this case on May 16, 2017, alleging that Defendants' conduct violates federal and state laws. He seeks $500, 000 in compensatory damages as well as punitive damages against the individual Defendants. (Compl. ¶ 175.) He also requests that the funds held in Ms. Fields' IOLTA account “be released/returned immediately, ” that Defendants be “punished as in cases of contempt of court, ” and that this court order law enforcement officials to initiate “criminal prosecution of the Defendants . . . under 18 U.S.C. § 242.” (Id.) In addition, in a Motion for Miscellaneous Relief [6], Mr. Curry alleges that Defendants have continued to violate his federal and state law rights by entering and enforcing child support and income withholding orders and by refusing to waive service of summons in this federal case. He seeks removal of the state custody case to this court and an order staying all of his payment obligations.


         All Defendants have moved to dismiss this case on various grounds. Defendants Lopez and Ahern, both state court judges, contend they are immune from civil liability. Ms. Curry and her attorney, Defendant Fields, contend that Plaintiff has not stated a claim that arises under the court's jurisdiction, and that any valid challenge to the state court proceedings would be subject to Younger abstention. Regardless whether Younger abstention is appropriate here, this court concludes it lacks jurisdiction to proceed. Apart from his request for reimbursement of service costs under Fed.R.Civ.P. 4(d)(2), Plaintiff's motion for miscellaneous relief is denied.

         I. ...

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