In re Marriage of Ignatius

• Decision Date: 22 April 2003
• Docket Number: No. 2-03-0168.,2-03-0168.
• Citation: 788 N.E.2d 794,273 Ill.Dec. 203,338 Ill. App.3d 652
• Parties: In re MARRIAGE OF Mariamma T. IGNATIUS, Petitioner, and Tharayil O. Ignatius, Respondent-Appellant (Susan IGNATIUS, as Ex'r of the Estate of Mariamma Ignatius, Deceased, and as Trustee of the Mariamma T. Ignatius Declaration of Trust, Respondent and Intervenor-Appellee).
• Court: United States Appellate Court of Illinois

788 N.E.2d 794

338 Ill. App.3d 652

273 Ill.Dec. 203

In re MARRIAGE OF Mariamma T. IGNATIUS, Petitioner, and

Tharayil O. Ignatius, Respondent-Appellant (Susan IGNATIUS, as Ex'r of the Estate of Mariamma Ignatius, Deceased, and as Trustee of the Mariamma T. Ignatius Declaration of Trust, Respondent and Intervenor-Appellee).

No. 2-03-0168.

Appellate Court of Illinois, Second District.

April 22, 2003.

Daniel P. Fitzgerald, Fitzgerald Law Firm, P.C., Lisle, for Tharayil O. Ignatius.

Mary Ann Thilmany, Thilmany & Neis, Schaumburg, for Susan Ignatius, Executor.

Presiding Justice HUTCHINSON delivered the opinion of the court:

This interlocutory appeal is brought pursuant to Supreme Court Rule 307(a)(1) (188 Ill.2d R. 307(a)(1)) and involves the propriety of enforcing an injunctive order in the context of a dissolution of marriage proceeding filed by petitioner, Mariamma T. Ignatius, against respondent, Tharayil O. Ignatius. Respondent appeals from the trial court's orders entered following the death of petitioner and the dismissal of the cause of action. We affirm in part and vacate in part.

At the outset, we note that respondent's counsel has violated Supreme Court Rule 342(a) (155 Ill.2d R. 342(a)) by failing to include a copy of the notice of appeal with the appendix to his appellate brief. Where an appellant's brief fails to comply with supreme court rules, this court has inherent authority to dismiss the appeal for noncompliance. Kuzmanich v. Cobb, 276 Ill.App.3d 634, 636, 213 Ill.Dec. 409, 659 N.E.2d 39 (1995). In the present case, we do not believe that the sanction of dismissal is warranted; rather, it is our hope that our discussion here will serve as an admonition to attorneys practicing before this court to comply with our supreme court's rules.

Petitioner and respondent were married in January 1961, and two children were born of the marriage, both now adults. In February 2001 petitioner filed a petition seeking a dissolution of marriage from respondent. During the course of the dissolution proceeding, the trial court enjoined the parties from transferring or otherwise disposing of the marital assets, including the marital residence, two apartment buildings, personal property in the marital residence, and other property contained in a safe deposit box.

Following a hearing on May 1, 2002, the trial court granted a motion brought by petitioner to modify the injunctive order. At the time of the hearing, petitioner had been diagnosed with bone cancer and was about to undergo medical treatment. Petitioner sought to modify the injunction for estate planning purposes. Petitioner requested permission to sever the joint ownership of marital assets so that she could plan the disposition of her assets without alienating them from the marital estate. With this modification, petitioner asked the trial court to continue the injunctive order in full force and effect. The trial court modified the injunctive order to the extent that it ordered "[a]ll assets jointly held by the parties shall be transferred into tenancy in common interests as soon as practicable."

On July 20, 2002, petitioner died. Shortly thereafter, respondent moved the trial court to dismiss petitioner's petition for dissolution of marriage. The record reflects no judgment of dissolution had been entered. In September 2002 Susan Ignatius (intervenor), as executor and trustee of petitioner's estate and declaration of trust, requested leave to intervene in the proceedings, which the trial court granted. In her petition to intervene, intervenor requested that the trial court enforce the terms of the preliminary injunction as modified by the May 1, 2002, order. In her prayer for relief, intervenor requested the trial court to perform an accounting of the property and divide the joint marital property in accordance with the terms of the May 1, 2002, order.

On December 5, 2002, the trial court entered a memorandum opinion and order. It found that petitioner died without having completed the transfer of all jointly held marital assets. Relying on New York Life Insurance Co. v. Sogol, 311 Ill.App.3d 156, 243 Ill.Dec. 796, 724 N.E.2d 105 (1999), the trial court determined that the May 1, 2002, "modification of a preliminary injunction entered [pursuant] to the provisions of 750 ILCS 5/501(a)(2) of the Illinois Marriage and Dissolution of Marriage Act" survived the death of petitioner. The trial court granted intervenor's petition and ordered an accounting of the parties' property and a division of the parties' joint marital property in accordance with its May 1, 2002, order.

On December 13, 2002, respondent filed a motion for clarification, requesting that the trial court clarify the time frame in which the accounting was to occur. Respondent also asked the trial court to resolve the issues raised in his previously filed motion to dismiss, in which he sought the dismissal of the dissolution petition and the dissolution of the prior injunctive orders as a result of petitioner's death and the abatement of the dissolution proceeding.

On January 10, 2003, the trial court entered its memorandum opinion and order. The trial court granted respondent's motion to dismiss petitioner's dissolution petition but denied respondent's request to dissolve the prior injunctive orders. The trial court explained that the injunctive orders survived the abatement of the dissolution proceedings. It further ordered the accounting to commence immediately. Respondent filed a timely notice of interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (188 Ill.2d R. 307(a)(1)), challenging the trial court's authority to continue the injunction and order an accounting and a division of assets following the dismissal of the cause of action.

Before reaching the merits of the appeal, we must first address intervenor's claim that respondent has waived appellate review of the trial court's May 1, 2002, injunctive order. Intervenor asserts that, in his response to intervenor's petition for intervention, respondent requested the injunctive order entered only in 2001 be dissolved and, therefore, he should be barred from seeking review of the May 2002 injunctive order. Intervenor also claims that the trial court's orders of December 5, 2002, and January 10, 2003, are separate and distinct and, as such, respondent should be allowed to challenge only the January 10, 2003, order.

In Sarah Bush Lincoln Health Center v. Berlin, 268 Ill.App.3d 184, 186-87, 205 Ill. Dec. 325, 643 N.E.2d 276 (1994),rev'd on other grounds,179 Ill.2d 1, 227 Ill.Dec. 769, 688 N.E.2d 106 (1997), the reviewing court determined it could consider, in an interlocutory appeal from a preliminary injunction, whether the trial court erred in denying a motion for substitution of judge. The reviewing court noted the propriety of an order granting or denying interlocutory injunctive relief could be determined only in an appeal brought pursuant to Supreme Court Rule 307(a)(1) (155 Ill.2d R. 307(a)(1)). Berlin, 268 Ill.App.3d at 187,205 Ill.Dec. 325,643 N.E.2d 276. It held, however, the scope of review under Rule 307 included the review of any prior error bearing directly upon the question of whether the order on appeal was proper. Berlin, 268 Ill.App.3d at 187,205 Ill.Dec. 325,643 N.E.2d 276.

In the present case, the May 1, 2002, injunctive order was a modification of a prior injunctive order and was predicated on an injunctive order entered in February 2001. Had the trial court granted respondent's motion and dissolved the injunctive order entered in 2001, the modification order entered on May 1, 2002, would certainly have been affected as well. Accordingly, the scope of our jurisdiction to review the trial court's rulings is not limited to the orders entered only in 2001, despite respondent's failure to specify the other ruling in his notice of appeal, because they are all steps in the procedural progression leading to the specified judgment on appeal. See Berlin, 268 Ill.App.3d at 187, 205 Ill.Dec. 325, 643 N.E.2d 276.

Turning to the merits, respondent contends that the trial court erred when it entered the December 5, 2002, and the January 10, 2003, orders denying his motion to dissolve the prior injunctive orders, continuing the injunction, and ordering an accounting. According to respondent, the injunctions should have been dissolved because the trial court dismissed the cause of action following the death of petitioner. Respondent also contends that the trial court erred when it ordered an accounting and a division of the parties' assets because this, too, was subsequent to the dismissal of the underlying cause of action.

Intervenor counters that an injunction survives abatement of the dissolution proceedings, citing New York Life, 311 Ill. App.3d 156, 243 Ill.Dec. 796, 724 N.E.2d 105, in support of her assertion. Intervenor maintains that the trial court's January 10, 2003, order properly effectuates the enforcement of the May 1, 2002, order. Intervenor additionally responds that the trial court did not distribute any property but that it merely provided for a change in the way that title was held. Finally, intervenor argues that equity demands the injunction remain in full force and effect.

Generally, in an interlocutory appeal brought pursuant to Rule 307(a)(1), the only question before this court is whether a sufficient showing was made to the trial court to sustain its order granting, denying, or modifying the interlocutory relief. Keefe-Shea Joint Venture, Inc. v. City of Evanston, 332 Ill.App.3d 163, 168, 266 Ill.Dec. 85, 773 N.E.2d 1155 (2002), citing Postma v. Jack Brown Buick, Inc., 157 Ill.2d 391, 399, 193 Ill.Dec. 166, 626 N.E.2d 199 (1993). However, where a party's right to injunctive relief is dependent on the resolution of a question of law, a reviewing court determines the question independently of the trial court's judgment. Hamlin v. Harbaugh Enterprises, Inc., 324 Ill.App.3d 612, 616, 258...