Marzouki v. Najar-Marzouki

• Decision Date: 15 May 2014
• Docket Number: No. 1–13–2841.,1–13–2841.
• Citation: 2014 IL App (1st) 132841,12 N.E.3d 620,382 Ill.Dec. 341
• Parties: Jamel MARZOUKI, Petitioner–Appellant, v. Olfa NAJAR–MARZOUKI, Respondent–Appellee.
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 132841

12 N.E.3d 620

382 Ill.Dec. 341

Jamel MARZOUKI, Petitioner–Appellant,

v.Olfa NAJAR–MARZOUKI, Respondent–Appellee.

No. 1–13–2841.

Appellate Court of Illinois, First District, Fourth Division.

May 15, 2014.

Lawrence W. Byrne and Naureen Amjad, both of Pedersen & Houpt, of Chicago, for appellant.

Mitchell B. Gordon and Maria A. Citino Sfreddo, both of Bradford & Gordon, LLC, of Chicago, for appellee.

OPINION

Justice EPSTEIN delivered the judgment of the court, with opinion.

¶ 1 Petitioner, Jamel Marzouki (Jamel), filed this interlocutory appeal, pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010), from the August 14, 2013 order of the circuit court of Cook County denying his motion for a stay and to enjoin discovery and trial. He further appeals all underlying orders including the July 22, 2013 order of the circuit court denying his motion to dismiss respondent's motion to allocate the marital estate. For the reasons that follow, we conclude that we lack jurisdiction to address the circuit court's denial of Jamel's motion to dismiss, and we affirm the August 14, 2013 order denying his motion for a stay and to enjoin discovery and trial.

¶ 2 BACKGROUND

¶ 3 Jamel and respondent, Olfa Najar–Marzouki (Olfa), are French citizens. Both were born in Tunisia and married there in 1998. This was Jamel's third marriage and Olfa's first. Jamel and his first wife divorced in 1989 in France. Jamel and his second wife divorced in 1996 in Wisconsin. In 1999, Jamel and Olfa moved to Illinois. In 2002, the couple purchased a residence in Evanston, which they continue to own jointly. Jamel and Olfa have two children and both were born in Illinois. In July 2010, they moved with their children to France, where Jamel worked remotely for his Illinois-based employer. Olfa worked in France as a medical researcher. While in France, they rented out their Evanston residence.

¶ 4 In January 2011, Jamel filed for divorce from Olfa. In December 2011, the couple and their children returned to the United States. On November 26, 2012, the family judge of the French court entered a seven-page judgment of dissolution which states, in pertinent part:

"REASONS FOR THE DECISION

On the divorce

Articles 233 and 234 of the civil code stipulate that divorce may be requested by either spouse or by both when they accept the principle of terminating the marriage without taking into consideration the facts that caused it.

Pursuant to article 1124 of the new code of civil procedure, the judge pronounces divorce on the sole grounds of mutual acceptance by the spouses.

In the present case, both spouses have stated that they accept the termination of the marriage in the conditions provided for by article 1124 of the new code of civil procedure, on 28 November 2011 for Olfa NAJAR and on 27 September 2011 for Jamel MARZOUKI, so that the divorce is pronounced pursuant to articles 233 and 234 of the civil code."

¶ 5 In addition to pronouncing the divorce, the court ordered that "the parents shall exercise joint parental authority with the children's usual place of residence being with their father." The court further "order[ed] the liquidation and distribution out of the spouses' marital rights." The order also "[i]nvites the parties to settle this liquidation and distribution out of court with the assistance of a notary of their choice." (Emphasis in original.)

¶ 6 The instant Illinois action arose on or about February 21, 2013, when Jamel filed a petition in the circuit court of Cook County to enforce the foreign judgment. Also on February 21, 2013, Jamel filed a "Petition to Establish Child Support." On March 29, 2013, Olfa filed a "Motion to Allocate Marital Estate." On April 29, 2013, Olfa filed her response to Jamel's petition to establish child support. On May 8, 2013, pursuant to section 2–619(a)(3) of the Code of Civil Procedure (the Code) ( 735 ILCS 5/2–619(a)(3) (West 2010)), Jamel filed a "Motion to Dismiss [Olfa's] Motion to Allocate Marital Estate," which the trial court denied on July 22, 2013. At some point, Jamel also filed a "Motion for Stay and to Enjoin Discovery and Trial on Respondent's Motion to Allocate Marital Assets." Jamel has included an undated copy of the motion in the appendix to his brief but also concedes that there is no copy in the record. Jamel filed his motion to stay under section 2–619(a)(3) of the Code ( 735 ILCS 5/2–619(a)(3) (West 2010)) and section 501 of the Illinois Marriage and Dissolution of Marriage Act which provides for a preliminary injunction under certain circumstances ( 750 ILCS 5/501 (West 2010) ). After a hearing, the trial court denied this motion. The record contains no transcript of the hearing. Jamel filed this interlocutory appeal on August 13, 2013.

¶ 7 JURISDICTION

¶ 8 This court has jurisdiction to review appeals from final judgments only, unless a supreme court rule or statute provides appellate jurisdiction. Van Der Hooning v. Board of Trustees of the University of Illinois, 2012 IL App (1st) 111531, ¶ 6, 361 Ill.Dec. 690, 972 N.E.2d 175. Jamel filed this appeal pursuant to Illinois Supreme Court Rule 307(a)(1) which states that "[a]n appeal may be taken to the Appellate Court from an interlocutory order of court * * * granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction." Ill. S.Ct. R. 307(a)(1) (eff. Feb. 26, 2010). This court has consistently held that a stay is injunctive in nature and a stay order is immediately appealable under Rule 307(a)(1). Hastings Mutual Insurance Co. v. Ultimate Backyard, LLC, 2012 IL App (1st) 101751, ¶ 28, 358 Ill.Dec. 585, 965 N.E.2d 656 ; TIG Insurance Co. v. Canel, 389 Ill.App.3d 366, 371, 329 Ill.Dec. 423, 906 N.E.2d 621 (2009). We have appellate jurisdiction to review the interlocutory order of August 14, 2013, denying Jamel's motion to stay.

¶ 9 Jamel also seeks to appeal "all underlying orders including the order entered July 22, 2013 denying [his] Motion to Dismiss." This order is not appealable. " ‘An appeal under Rule 307 does not open the door to a general review of all orders entered by the trial court up to the date of the order that is appealed.’ [Citation.]" Rosinia v. Gusmano, 90 Ill.App.3d 882, 887, 46 Ill.Dec. 299, 414 N.E.2d 21 (1980). A trial court's denial of a motion to dismiss is an interlocutory order, but it is one that is not final and appealable.

Desnick v. Department of Professional Regulation, 171 Ill.2d 510, 540–41, 216 Ill.Dec. 789, 665 N.E.2d 1346 (1996) ; Van Der Hooning, 2012 IL App (1st) 111531, ¶¶ 6–7, 361 Ill.Dec. 690, 972 N.E.2d 175. This court is without jurisdiction to consider whether the circuit court erred in denying Jamel's motion to dismiss.

¶ 10 ILLINOIS SUPREME COURT RULE 341

¶ 11 Olfa has argued that this appeal should be dismissed based on Jamel's failure to adhere to the requirements set forth in Illinois Supreme Court Rule 341. Ill. S.Ct. R. 341 (eff. Feb. 6, 2013). Rule 341 provides that all briefs should contain a statement of facts section which includes "appropriate reference to the pages of the record on appeal." Ill. S.Ct. R. 341(h)(6) (eff. Feb. 6, 2013). Rule 341 further requires that the brief contain an argument "which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on." Ill. S.Ct. R. 341(h)(7) (eff. Feb. 6, 2013). We agree with Olfa that Jamel's brief does not comply with these requirements.

¶ 12 As we have explained:

"Our rules of procedure are rules and not merely suggestions. [Citation.] Consequently, Rule 341's mandates detailing the format and content of appellate briefs are compulsory. [Citation.] * * * Where an appellant's brief contains numerous Rule 341 violations and, in particular, impedes our review of the case at hand because of them, it is our right to strike that brief and dismiss the appeal. [Citations.] Ultimately, we are not a depository in which the appellant may dump the burden of argument and research for his cause on appeal. [Citation.]" (Internal quotation marks omitted.) Rosestone Investments, LLC v. Garner, 2013 IL App (1st) 123422, ¶ 18, 377 Ill.Dec. 616, 2 N.E.3d 532.

As Olfa correctly notes, although an appellant may present evidence favorable to his position in the statement of facts, he cannot do so at the cost of this court's understanding of the case. See In re R. G., 165 Ill.App.3d 112, 115, 116 Ill.Dec. 69, 518 N.E.2d 691 (1988) ; Midland Hotel Corp. v. Reuben H. Donnelley Corp., 149 Ill.App.3d 53, 57, 103 Ill.Dec. 742, 501 N.E.2d 1280 (1986). Additionally, "[i]t is axiomatic that [a] reviewing court is entitled to have the issues clearly defined and supported by pertinent authority and cohesive arguments [citations], and that failure to develop an argument results in waiver. [Citation.]" (Internal quotation marks omitted.) Sexton v. City of Chicago, 2012 IL App (1st) 100010, ¶ 79, 364 Ill.Dec. 248, 976 N.E.2d 526. In view of these principles, we believe that we are entitled to strike Jamel's brief or dismiss his appeal based on his violations of Rule 341. We choose not to do so, however, and, in our discretion, will review this appeal. A reviewing court has the choice to review the merits, even in light of multiple Rule 341 mistakes. Rosestone Investments, LLC, 2013 IL App (1st) 123422, ¶ 19, 377 Ill.Dec. 616, 2 N.E.3d 532 (citing In re Estate of Jackson, 354 Ill.App.3d 616, 620, 290 Ill.Dec. 625, 821 N.E.2d 1199 (2004) ).

¶ 13 STANDARD OF REVIEW

¶ 14 When a party brings a motion under section 2–619(a)(3) of the Code, the trial court has discretion to determine if a dismissal or stay is warranted. In re Marriage of Murugesh, 2013 IL App (3d) 110228, ¶ 20, 373 Ill.Dec. 550, 993 N.E.2d 1109. Thus, we review the trial court's order denying a motion to stay under the abuse of discretion standard. Hastings Mutual Insurance Co., 2012 IL App (1st) 101751, ¶ 29, 358 Ill.Dec. 585, 965 N.E.2d 656. "In determining whether the...