In re Marriage of Kohl

• Decision Date: 15 October 2002
• Docket Number: No. 1-00-3163.,1-00-3163.
• Parties: In re MARRIAGE OF Rivka KOHL, Petitioner-Appellant, and Menahem Kohl, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

778 N.E.2d 1169

334 Ill. App.3d 867

268 Ill.Dec. 547

In re MARRIAGE OF Rivka KOHL, Petitioner-Appellant, and

Menahem Kohl, Respondent-Appellee.

No. 1-00-3163.

Appellate Court of Illinois, First District, Second Division.

October 15, 2002.

Angela Peters, Buffalo Grove Law Offices, Buffalo Grove, for Petitioner-Appellant.

Timothy J. Storm, Storm & Gottesman, Chicago, for Respondent-Appellee.

Presiding Justice McBRIDE delivered the opinion of the court:

Petitioner Rivka Kohl, a resident of Israel, filed a combined petition for support under the Uniform Interstate Family Support Act (750 ILCS 22/100 through 999 (West 1998) (the Uniform Act)); and for rule to show cause against her former husband, respondent Menahem Kohl,¹ a resident of Skokie, Illinois. In her combined petition, Rivka alleged that for more than 18 years Menahem wilfully refused to comply with an Israeli court's order to pay child support for their four children. Menahem moved for dismissal, citing section 607(a)(1) of the Uniform Act (750 ILCS 22/607(a)(1) (West 1998)), which indicates that registration and enforcement of a foreign support order may be opposed on the basis of the foreign court's lack of personal jurisdiction. After reviewing the evidence of service that the Israeli court relied upon in entering a default judgment against Menahem, the circuit court found that Menahem had not been served and dismissed the rule to show cause proceedings. The court subsequently denied Rivka's motion for reconsideration.

Rivka appeals those orders, arguing that it was improper for the circuit court to consider Menahem's arguments, because the support order was confirmed by operation of law when he failed to contest its registration and enforcement in Illinois within 20 days of being served with the Illinois petition, as required by section 606 of the Uniform Act. 750 ILCS 22/606 (West 1998). She also argues that the record established that Menahem was personally served in the Israeli proceedings on December 23, 1981, and that he generally appeared four years later by sending a letter to the Netanyah, Israel, "Execution Bureau" objecting to the sale of the family apartment in partial satisfaction of the accumulating support arrearage. Her third contention is that personal jurisdiction was or could have been litigated in the Israeli proceedings, and, therefore, res judicata prevents Menahem from raising the issue now. Finally, Rivka argues that comity required the circuit court to respect the Israeli court's finding of personal jurisdiction and to enforce its order.

The record shows the following. Rivka and Menahem were married in Israel and had four children together between October 7, 1972 and August 5, 1981. On October 23, 1981, Rivka filed a petition in a Tel Aviv, Israel, district court seeking child support and "alimony" from her husband. She alleged that Menahem had abandoned the family and was in hiding; and she submitted confirmation from the border police that Menahem left Israel on August 30, 1981, and had not returned. She sought permission to serve Menahem in Equador, indicating that she had discovered his address from two letters he had sent to one of the children. The Israeli district court, Judge Berman, authorized the foreign service of process, to "be executed by registered mail with a confirmation of delivery and also by means of the Israeli Representative in the State of Ecuador," at the following address: "M. Kol, Pedro Carbo 809 Y Ballen, Gayaquil, Ecuador." Judge Berman did not explain the implications of the phrase "and also by means of the Israeli Representative in the State of Ecuador," and there is no further mention of this phrase in any other Israeli court document in the record filed in this appeal.

Judge Berman received confirmation that a person signing "M" to a postal receipt had accepted registered mail addressed to M. Kol at an address on "Pedro Carlo [sic]" in Gayaquil, Ecuador. Menahem does not dispute that he was residing in "Guayaquil [sic]," Ecuador, in 1981, and admits that his business address was "Pedro Carbo 809, Guayaquil, Equador," but he denies that he was served on December 23, 1981, and he contends that the date stamped on the postal receipt is not even decipherable. Further, Rivka and Menahem disagree over whether the handwritten address appearing on the receipt shows a street address of "Pedro Carlo 809 Y Ballen" or "Pedro Carlo 8094 Ballen."

On February 25, 1982, Judge Berman entered a decision against Menahem, stating in pertinent part:

"The respondent is summoned to appear in court and was duly served outside the jurisdiction by venue of foreign postal service on December 23, 1981. Owing to the fact that the signature of the recipient is hard to decipher, nevertheless, since the time span has not exceeded that allowed by law, the court must accept it and since there was no counter claim submitted and the defendant never showed up, there lies no alternative other than to give a final decision in this matter, albeit in the absence of the defense and without appearance."

Judge Berman compelled Menahem "to pay alimony and child support * * * in the amount of 9,000 New Israeli Shekel[s] a month, beginning January 16, 1982, and every month thereafter on the 16th of the month," and determined that payments would be adjusted every three months according to a cost-of-living index. Additionally, Judge Berman ordered Menahem to pay for dental care for two of the children in "the amount of 25,000 NIS, which sum shall be linked to the cost of living index."

Menahem has never complied with the support order. Rivka states that, as a result, she received welfare payments from the Israeli National Insurance Institute until 1984, when she began working outside the home.

Rivka and Menahem participated in marriage dissolution proceedings before the rabbinical court of Tel Aviv. This court is distinct and separate from the civil district court that heard Rivka's support petition, and according to Rivka, it is the only Israeli court with authority to grant a divorce. The marriage was dissolved by a final order of the rabbinical court on July 21,1985.

On September 17, 1986, the "Execution Bureau" in Netanya, Israel, sent Menahem a "Warning," indicating that a certified copy of the district court's support order was attached and that unless Menahem objected within 21 days of receipt or paid Rivka 48,185 New Israeli Shekels, he would face "execution measures according to law."

In a letter dated December 24, 1986, addressed to the "Netanya Court President" and titled "Appeal," Menahem stated that he had not received the warning until December 18, 1986. He stated that the judgment had not been "handed" to him and that "[t]he [real] property [to be executed upon, the Kohl family apartment was] not in the jurisdiction of Netanya but in Rishon Le Zion." Menahem asked the "Netanya Court President" to "instruct the Netanya Execution Office to nullify every process against [him] until [he was] able to prove [his] claims if and when * * * [he was] requested to do so."

In a letter to Menahem dated January 1, 1987, "The Magistrate's Court, Netanya," forwarded "a copy of the court's Registrar's decision" about Menahem's "petition to cancel the proceedings." The letter stated, "Please notice that according to the decision of the Chairman of the Execution Bureau `the arguments raised by the petitioner —cannot withhold the execution of the judgment.'"

Subsequently, the family apartment at 19/9 Karl Neter Street, Rishon-Le-Zion, was sold during 1987 for an unspecified amount, and the National Insurance Institute recouped its welfare payments from Menahem's half of the proceeds before the remainder was paid to Rivka.

On March 18, 1997, with the assistance of the office of the State's Attorney of Cook County, Rivka filed a "Uniform Support Petition" in the circuit court of Cook County, which was personally served on Menahem in Skokie on March 25, 1997. The accompanying summons stated that Menahem was required to file an appearance and answer "on or before 5/28/97 for a hearing on the complaint." It further provided, "If you fail to do so, a judgment by default may be taken against you for the relief asked in the complaint."

On April 30, 1997, Menahem filed an appearance, and on July 3, 1997, Menahem filed a motion to dismiss Rivka's petition on the basis of the Israeli court's lack of personal jurisdiction. Menahem's motion was supported in part by an affidavit stating that he "exited Equador on December 20, 1981 for Miami[, Florida]," and "was not served with summons through certified mail on December 23, 1981."

Rivka subsequently retained private counsel, and by agreement of the parties, Rivka and Menahem filed new pleadings, which are the subject of this appeal.

On March 11, 1999, Rivka filed the combined petition for support under the Uniform Act and for a rule to show cause mentioned above. She alleged in part that Menahem had been "validly served with process on December 23, 1981, as found by the Israeli court," but had "wilfully and contumaciously refused or failed to comply" with the Israeli support order. Accordingly, she sought imposition of a fine or "imprisonment" if the circuit court determined that Menahem was in contempt of court.

On April 9, 1999, Menahem filed a motion to dismiss, arguing in pertinent part that the combined petition should be dismissed pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1998)) and section 607 of the Uniform Act (750 ILCS 22/607 (West 1998)) because the only evidence of service in the Israeli proceeding was a signature on a postal receipt which was "not decipherable" as Menahem's. In a supporting affidavit, Menahem stated that he had departed from Equador for Miami, Florida, on December 20, 1981, was not served in Equador on December 23, 1981, and that the postal receipt did not contain his "signature." Menahem further argued...