Bullard v. Bullard
| Decision Date | 16 November 1978 |
| Docket Number | No. 78-349,78-349 |
| Citation | 66 Ill.App.3d 132,22 Ill.Dec. 876,383 N.E.2d 684 |
| Parties | , 22 Ill.Dec. 876 Gary Lee BULLARD, Plaintiff-Appellant, v. Janice Jane BULLARD, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
R. Michael Fischer, Alton, for plaintiff-appellant.
No Brief Filed.
Respondent Gary Lee Bullard appeals from the orders of the Circuit Court of Bond County dissolving a preliminary injunction upon condition that he post $2500 security in connection with a child custody dispute with petitioner Janice Jane Bullard following the parties' divorce.
On March 21, 1978, Ms. Bullard filed a petition for citation in the Circuit Court of Bond County alleging that respondent fled from the jurisdiction with their minor child, Julie Christine Bullard, in violation of the divorce decree which had awarded custody of the child to petitioner. The petition also requested the issuance of an injunction without notice or bond prohibiting any persons having an interest in or control over respondent's assets from disposing or participating in the disposal of such assets. On the same day, the court granted petitioner's request for an injunction without notice or bond by enjoining the First Federal Savings and Loan Association of East Alton, Illinois which was holding certain funds belonging to Mr. Bullard and his new wife, Wanda, from distributing any of these assets until further order of the court.
On April 19, 1978, Mr. Bullard filed a response to the petition for citation and a petition to dissolve and vacate the court's order of March 21, 1978, alleging that the petition for citation failed to state a claim for temporary injunctive relief. He admitted, however, that he had the minor child in his home in the State of Florida. On May 16, 1978, the court entered an order continuing the March 21, 1978 injunction "until there has been a ruling on the petition to dissolve and vacate." Thereafter, on June 5, 1978, Mr. Bullard amended his petition to vacate or dissolve, alleging that there was no reason to continue the injunction as he had entered an appearance in this action and had returned Julie to petitioner. In addition, he filed a petition to modify the decree of divorce seeking custody of the child. On July 17, 1978, the court entered its order finding:
"(t)hat the grounds for the injunction as issued no longer exist; however, grounds exist for at least two other reasons:
a. Mr. Bullard has at least held himself out to be a non-resident * * * and should have (sic) security for costs and attorney's fees.
b. Mr. Bullard should post security for visitation because of prior violations of court orders."
Consequently, the court concluded that Mr. Bullard should post a bond for security with the amount to be determined at a later date. On July 26, 1978, the court ordered the bond to be set at $2,500 and found that the funds deposited at the First Federal Savings and Loan Association "may be used for this purpose." It further ordered:
"that the injunction entered March 21, 1978 against plaintiff (Mr. Bullard) and First Federal Savings and Loan is hereby dissolved provided, however, that the sum of $2500.00 shall be delivered directly to the Clerk of the Court * * * and the balance to be forthwith delivered to Gary and Wanda Bullard * * *."
It is from the orders of July 17, 1978 and July 26, 1978 that respondent brings this appeal.
The first issue before this court is whether these orders are appealable under Supreme Court Rule 307(a) (Ill.Rev.Stat.1975, ch. 110A, par. 307(a)) which provides for interlocutory appeals as a matter of right from an order refusing to dissolve an injunction. The threshold question, therefore, is whether the order of July 26, 1978 which purportedly dissolved the injunction has the opposite effect of continuing the order indefinitely. We believe it does. We first note "that in determining what constitutes an injunction order subject to interlocutory review the courts would look to the substance rather than to the form." (Bohn Aluminum & Brass Company v. Barker, 55 Ill.2d 177, 180, 303 N.E.2d 1, 3 (1973); Valente v. Maida, 24 Ill.App.2d 144, 149, 164 N.E.2d 538, 541 (1st Dist.1960).) The March 21, 1978 order, in essence, enjoined the First Federal Savings and Loan Association from distributing any of the funds to Mr. Bullard. The order of July 26, 1978 has a similar effect notwithstanding the language that the injunction was dissolved. Although the July 26, 1978 order is phrased in terms of a security device, it is essentially injunctive in character. We, therefore, conclude that the preliminary injunction remains in effect and the matter is appealable under the provisions of Supreme Court Rule 307(a).
Respondent argues that the trial court's order granting the injunction was improper in that it failed to conform with the requirements of Ill.Rev.Stat.1975, ch. 69, par. 3-1 which provides for the issuance of temporary restraining orders. We agree that the injunction was inappropriate, but not for the reasons stated by respondent. Respondent confuses a temporary restraining order with a preliminary injunction. A temporary restraining order is an extraordinary remedy of extremely brief duration which is employed only in emergency situations. (See Paddington Corporation v. Foremost Sales, Promotions, Inc., 13 Ill.App.3d 170, 300 N.E.2d 484 (1st Dist.1973).) Notice to the opposing party is required except in situations where "immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served * * *." (Ill.Rev.Stat.1975, ch. 69, par. 3-1.) The general purpose of a temporary restraining order is to preserve the status quo until a hearing can be had to determine whether a preliminary injunction should issue. (Kirchenberg v. Chicago Transit Authority, 13 Ill.App.3d 184, 300 N.E.2d 482 (1st Dist.1973).)
A preliminary injunction, in comparison to a temporary restraining order, is not necessarily of extremely brief duration since its primary purpose is to provide relief to the injured party and maintain the status quo until the trial on the merits. Although section 3 of the Illinois Injunction Act (Ill.Rev.Stat.1975, ch. 69, par. 3) provides for the issuance of a preliminary injunction without notice under extraordinary situations, we note that courts reluctantly find such a situation. (See Bettendorf-Stanford Bakery Equipment Co. v. International Union, etc., 49 Ill.App.3d 20, 6 Ill.Dec. 920, 363 N.E.2d 867 (5th Dist.1977); Sangamo Electric Company v. International Union, United...
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