Marriage of Betts, In re
| Decision Date | 28 June 1990 |
| Docket Number | Nos. 4-89-0443,4-89-0455,s. 4-89-0443 |
| Citation | 200 Ill.App.3d 26,146 Ill.Dec. 441,558 N.E.2d 404 |
| Parties | , 146 Ill.Dec. 441 In Re the MARRIAGE OF Julie A. BETTS, Petitioner-Appellee, and John A. Betts, Respondent-Appellant. In Re the MARRIAGE OF Julie A. BETTS, Petitioner-Appellee, and John A. Betts, Respondent-Appellant (Kenneth A. Kozel, Contemnor-Appellant). |
| Court | United States Appellate Court of Illinois |
Kenneth A. Kozel, LaSalle, for respondent-appellant.
Paul R. Wilson, Jr., Wilson & Lanto, Rantoul, for petitioner-appellee.
These consolidated appeals are the latest chapter in the sad tale of the former marriage of Julie and John Betts. Previous opinions of this court dealing with this subject include In re Marriage of Betts (1987), 155 Ill.App.3d 85, 107 Ill.Dec. 759, 507 N.E.2d 912 (Betts I ), In re Marriage of Betts (1987), 159 Ill.App.3d 327, 110 Ill.Dec. 555, 511 N.E.2d 732 (Betts II ), In re Marriage of Betts (1988), 172 Ill.App.3d 742, 122 Ill.Dec. 599, 526 N.E.2d 1138 (Betts III ), and In re Marriage of Betts (1989), 190 Ill.App.3d 961, 138 Ill.Dec. 519, 547 N.E.2d 686 (Betts IV ). We will not lengthen this opinion by recapitulating the holdings of these previous decisions, but will refer to them insofar as they are relevant to the issues presented by the present appeals.
The proceedings which resulted in the latest appeals commenced when John Betts filed a petition in March 1989 in the Cook County circuit court. That petition requested modification of the September 1982 order of the circuit court of Ford County, which dissolved the marriage of John and Julie Betts. The 1982 dissolution order required John to pay child support of $35 per week for each of the parties' children. The petition for modification which John filed in Cook County alleged that subsequent to the dissolution of the parties' marriage, Julie became a resident of Cook County. The petition requested John's child support obligation be modified so that the educational expenses of the parties' daughter, Jodie, would be shared on an equitable basis and John's obligation to provide support for their son, John, Jr., would cease upon his emancipation. At the same time, John filed a petition requesting enrollment in Cook County of the Ford County dissolution judgment.
On April 14, 1989, Judge Caisley of the Eleventh Judicial Circuit, acting on the request of Julie's counsel, entered an ex parte temporary restraining order (TRO) which found that Julie was a bona fide resident of Ford County, although she was at the time a student at Garrett Evangelical Seminary in Evanston. The TRO provided that as long as Julie remains domiciled in Ford County, John is to cease and desist from maintaining any actions against her arising out of their former marital relationship "in any other jurisdiction" than Ford County. The TRO further required John to dismiss the modification action then pending in Cook County by promptly filing a motion for voluntary nonsuit and enjoined John from registering the judgment which dissolved the parties' marriage "in any other jurisdiction" as long as Julie remained domiciled in Ford County. Also on April 14, 1989, Julie filed a petition for injunctive relief, requesting that John be both temporarily and permanently enjoined from commencing or prosecuting any actions relating to the dissolution of his and Julie's marriage or any post-judgment litigation against Julie anywhere other than in Ford County.
A notice of hearing addressed to John's attorney, Kenneth A. Kozel, indicated that the petition for injunctive relief was set for hearing on April 28, 1989. A proof of service indicates that this notice was served on Kozel by ordinary mail. A separate proof of service indicates that a copy of the April 14, 1989, TRO was served on Kozel in the same manner.
On April 19, 1989, an affidavit of service of the modification petition on Julie was filed in the Cook County circuit court. On the same day, Kozel and Julie, who was not represented by counsel, appeared in the Cook County circuit court. Julie handed Kozel a copy of the April 14, 1989, TRO and Kozel indicated that he did not consider himself bound by that order. The circuit court of Cook County continued the cause in order to allow Julie to obtain counsel.
On April 28, 1989, Julie filed in Ford County a petition for a rule to show cause directed to John and Kozel. This petition alleged that Kozel was served in open court in Cook County with a copy of the TRO, but nevertheless prepared an order continuing the Cook County modification proceeding. The petition alleged that this action constituted "willful and contumacious indirect criminal contempt" of the court. On the same day, Julie filed a virtually identical petition for a rule to show cause directed to John and Kozel, alleging that John's obtaining a continuance of the Cook County action amounted to indirect civil contempt of court; Julie also filed petitions for rules to show cause directed to John and Kozel that alleged their conduct amounted to direct civil contempt of court and direct criminal contempt of court. Also on April 28, Julie filed still another petition for a rule to show cause, alleging that John had failed to pay child support from March 31 through April 28, 1989. Julie alleged that this failure constituted "indirect civil and indirect criminal contempt of court."
Also on April 28, 1989, John filed in Ford County, in response to Julie's petition for injunctive relief, a special and limited appearance for the purpose of objecting to both subjectmatter and personal jurisdiction. This special and limited appearance alleged that neither John nor Julie resided in Ford County and that no summons or notice had ever been served on John personally. This pleading further alleged that although Kozel had received a written notice of the April 28, 1989, hearing, he had not received a petition for injunctive relief as asserted in the notice of hearing. Also, John alleged that Julie had previously appeared before the Cook County circuit court, consented to that court's jurisdiction, and moved that court for a continuance. The allegations contained in this special and limited appearance were supported by John's affidavit.
On the same day (April 28, 1989), the circuit court entered an "Order for Rule to Show Cause" based on each of the following alleged acts and omissions: (1) indirect criminal and civil contempt on John's part in failing to make child support payments from March 31 through April 28, 1989; (2) indirect civil and criminal contempt on the part of John and Kozel in obtaining a continuance of the Cook County proceeding; and (3) direct civil and criminal contempt on the part of John and Kozel in obtaining a continuance of the Cook County proceeding. All of these orders required the parties to whom they were directed to appear in court on June 2, 1989, and to show cause why they should not be judged guilty of and punished for contempt of court.
Also on April 28, 1989, the circuit court overruled John's special and limited appearance. As to Julie's petition for injunctive relief, the court found that neither of the parties was a resident of Cook County and that Julie was a resident of Ford County. The court therefore enjoined John from enrolling the judgment of dissolution "in any other court in any other jurisdiction" or seeking modification of that judgment "in any other jurisdiction" until such time as the court found that Julie was no longer a resident of Ford County.
A written permanent injunction order directed to John was filed on May 3, 1989. In addition to the provisions announced by the court at the April 28, 1989, hearing, this order required John to cause the Cook County modification proceeding to be dismissed within 10 days of its entry. A proof of service attached to this order indicates that on May 4, 1989, a copy was sent to both John and Kozel by ordinary mail.
On May 1, 1989, Julie filed in the Cook County circuit court a motion requesting transfer of the modification proceeding to Ford County and a section 2-619 motion (Ill.Rev.Stat.1987, ch. 110, par. 2-619) requesting dismissal of the modification proceeding. Julie filed a second section 2-619 motion in the circuit court of Cook County on May 3, 1989, and, on May 15, 1989, filed still another section 2-619 motion in Cook County.
On May 15, 1989, John filed in Ford County a motion requesting that the court vacate the TRO for lack of jurisdiction. Among other things, this motion alleged that (1) the court had lost jurisdiction of the parties and subject matter and nothing had been done to invoke the court's jurisdiction or revest the court with jurisdiction, (2) the TRO was "heard and decided in McLean County" and neither John nor Julie resided or had resided in McLean County, and (3) no petition for a preliminary injunction had been filed or heard with respect to the case. Also on May 15, 1989, Kozel, acting on his own behalf, filed a motion for a change of judge with respect to the proceedings on the orders for rules to show cause insofar as they were directed to him.
On May 22, 1989, a hearing was held on John's motion to vacate the TRO for lack of jurisdiction. The circuit court found that Julie remained a bona fide resident of Ford County and was residing only temporarily in Cook County while enrolled as a student at Garrett Evangelical Theological Seminary. The court further found that Julie had no intention of residing permanently in Cook County after completing her theological education. For these reasons, the circuit court denied John's motion to vacate the TRO. At this hearing, Julie was represented by attorney Paul Wilson, Jr., who also represented her in the Ford County proceedings, and the court allowed Wilson's motion on behalf of Julie to direct Kozel to execute a motion to dismiss (1) the proceedings seeking enrollment of the...
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