Murugesh v. Kasilingam

• Decision Date: 09 September 2013
• Docket Number: Docket No. 3–11–0228.
• Citation: 2013 IL App (3d) 110228,993 N.E.2d 1109,373 Ill.Dec. 550
• Parties: In re MARRIAGE OF Deepalakshmi MURUGESH, Petitioner–Appellee, and Murugesh KASILINGAM, Respondent–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (3d) 110228

993 N.E.2d 1109

373 Ill.Dec. 550

In re MARRIAGE OF Deepalakshmi MURUGESH, Petitioner–Appellee, and Murugesh KASILINGAM, Respondent–Appellant.

Docket No. 3–11–0228.

Appellate Court of Illinois, Third District.

Aug. 8, 2013.

Rehearing Denied Sept. 9, 2013.

Sarane C. Siewerth and Shannon R. Burke (argued), both of Schiller, DuCanto & Fleck LLP, of Chicago, and Timothy M. Daw, of Schiller, DuCanto & Fleck LLP, of Wheaton, for appellant.

Jared B. Pinkus, Howard A. London (argued), and Katherine A. Grosh, all of Beermann Pritikin Mirabelli Swerdlove LLP, of Chicago, for appellee.

OPINION

Justice LYTTON delivered the judgment of the court, with opinion. Justice Carter concurred in the judgment and opinion. Justice McDade specially concurred, with opinion.

[373 Ill.Dec. 553]¶ 1 Petitioner Deepalakshmi Murugesh (Deepa) and Murugesh Kasilingam (Murugesh) were married in India in early 1999. By September 1999, both parties were living in Illinois. In March 2009, Murugesh filed a petition for dissolution of marriage in India. Two days later, Deepa filed a petition for dissolution of marriage in Illinois. Murugesh filed a motion to dismiss Deepa's petition for dissolution. The trial court denied the motion and certified a question for appeal. Murugesh filed a petition for interlocutory appeal, seeking an answer to the certified question. We answer the certified question in the negative.

¶ 2 FACTS

¶ 3 Murugesh and Deepa are citizens of India. In 1997, Murugesh came to the United States and started a company in Illinois. Murugesh and Deepa were married in India in January 1999, under the Hindu Marriage Act No. 25 of 1955. The marriage was solemnized in India on August 22, 1999. In September 1999, Deepa moved to Illinois with Murugesh. One year later, Murugesh and Deepa had a child. The child was born in Illinois and has resided in Illinois since her birth.

¶ 4 In 2008 and 2009, Deepa spent extended periods in India. According to Murugesh, during these periods, Deepa was living with another man and holding herself out as his wife. Deepa returned to Illinois on March 10, 2009.

¶ 5 On March 14, 2009, Murugesh filed a petition under the Hindu Marriage Act, seeking dissolution of his marriage to Deepa. The petition alleged that Deepa committed adultery and mental cruelty. Two days later, Deepa filed a petition for dissolution of marriage in Will County, Illinois, alleging irreconcilable differences and mental cruelty. In April 2009, Murugesh filed a motion to dismiss the Illinois divorce proceeding, pursuant to section 2–619(a)(3) of the Illinois Code of Civil Procedure (735 ILCS 5/2–619(a)(3) (West 2010)), arguing that a divorce action was already pending in India.

¶ 6 The trial court held a hearing on Murugesh's motion to dismiss. At the hearing, Murugesh testified that he owns two businesses in Illinois. He also claimed an ownership interest in a business in India but said that he receives no income from it. Murugesh testified that he and Deepa have $400,000 worth of jewelry in a safe deposit box in India. He also testified that he paid an advance for a vacant lot in India on which he and Deepa planned to build a home. Murugesh testified that he did not have any documentation with respect to that property because it was purchased through his father with “black money.”

¶ 7 Deepa testified that except for one bank account with a nominal balance and a safe deposit box containing jewelry, all of the couple's assets are located in Illinois, including Murugesh's businesses, the couples' primary bank accounts, their personal property, and their marital residence. She testified that she did not own any land in India.

¶ 8 Since Murugesh filed his divorce action, neither he nor Deepa has been back to India. Murugesh's parents instituted two criminal actions against Deepa for adultery and filed a charge of attempted assault against Deepa and her parents. If Deepa were to return to India and be convicted of adultery, she could face up to two years in prison.¹

¶ 9 In the Indian divorce action, Murugesh never personally appeared; rather, his father appeared by proxy on his behalf. In an affidavit submitted to the Indian court, Murugesh explained that he would be unable to appear in court in India because he was “preoccupied” with “running a software business in the United States.” Deepa's father participated in the Indian divorce action on her behalf. Murugesh's father lives in the city where Murugesh filed his divorce action, while Deepa's father lives nearly 200 miles away. It takes him five to seven hours to travel that distance by car or train.

¶ 10 In March 2011, the trial court denied Murugesh's motion to dismiss the Illinois proceeding. In its oral ruling, the court found that (1) neither of the parties has been in India since Murugesh filed his petition, (2) all of the proceedings in India have been by proxy, (3) except for brief periods of time since August 1999, the parties have resided in Illinois, (4) the parties' only child was born in Illinois and is a citizen of the United States, (5) the only assets of the parties located in India are a vacant lot, a relatively new corporation, a bank account, and jewelry, (6) the only reason Murugesh filed his action in India was “because of [Deepa's] alleged marital infidelity and the consequences of the same under the Hindu Marriage Act,” (7) Murugesh engaged in “forum shopping” so that he could “take advantage of the Hindu Marriage Act,” (8) “substantially, if not all of the evidence, is located in this jurisdiction,” and (9) the only evidence not available in Illinois is proof of Deepa's infidelity, “which is not an issue in the United States.”

¶ 11 On March 16, 2011, Murugesh filed a motion requesting the Illinois trial court to stay the Illinois proceedings and certify the following question for appeal:

“Where citizens and domiciliaries of India were married in India under the Hindu Marriage Act of 1955 but are currently living in Illinois; where grounds for divorce and/or dissolution are alleged to have arisen in both the State of Illinois and the Country of India, and that proof of those grounds would be located in each jurisdiction, and the husband filed his divorce action in India before the wife filed a Petition for Dissolution of Marriage in Illinois; where both courts have personal and subject matter jurisdiction over the respective proceedings; and where the India court, according to the Hindu Marriage Act of 1955, asserts exclusive jurisdiction to divorce parties married according to Hindu law such that India would not recognize an Illinois judgment of dissolution in a contested case, should the Illinois action be dismissed pursuant to 735 ILCS 5/2–619(a)(3) and/or the doctrine of forum non conveniens, principles of comity and the Illinois court's exclusive opportunity to avoid duplicative litigation?”

¶ 12 In March 2011, Deepa filed with the Illinois court a petition to enjoin Murugesh from participating in the Indian divorce proceeding. The trial court granted Deepa's petition to enjoin and also granted Murugesh's motion to stay the Illinois proceedingand certify the question for appeal. Murugesh appealed the trial court's order enjoining him from participating in the Indian divorce action. We affirmed the trial court's decision to grant Deepa's petition to enjoin. In re Marriage of Murugesh, 2012 IL App (3d) 110204–U, 2012 WL 7005844.

¶ 13 In April 2011, Murugesh filed a petition for leave to appeal with this court, seeking review of the certified question. We initially denied Murugesh's petition for leave to appeal. Murugesh then appealed to the Illinois Supreme Court. The supreme court directed us to vacate our earlier order denying Murugesh's petition for leave to appeal and further directed us to allow the petition for leave to appeal and answer the certified question. Murugesh v. Kasilingam, No.112555(Sept. 28,2011)352 Ill.Dec. 246, 953 N.E.2d 927 (Ill.2011) (supervisory order).

¶ 14 ANALYSIS

¶ 15 Certified questions are governed by Illinois Supreme Court Rule 308 (Ill. S.Ct. R. 308 (eff. Feb. 26, 2010)). Rule 308 allows for permissive appeal of an interlocutory order certified by the trial court as involving a “question of law as to which there is a substantial ground for difference of opinion” and where an immediate appeal may “materially advance the ultimate termination of litigation.” Ill. S.Ct. R. 308(a) (eff. Feb. 26, 2010).

¶ 16 Pursuant to Rule 308, we are limited to answering the specified certified question. Spears v. Association of Illinois Electric Cooperatives, 2013 IL App (4th) 120289, ¶ 15, 369 Ill.Dec. 267, 986 N.E.2d 216. We should not look beyond the question to consider the propriety of the court's underlying order. In re Estate of Luccio, 2012 IL App (1st) 121153, ¶ 17, 367 Ill.Dec. 777, 982 N.E.2d 927. We review a certified question de novo. Id.

¶ 17 Here, the certified question asks us to determine whether, based on the facts of this case, the Illinois action should be dismissed pursuant to (1) section 2–619(a)(3) of the Code (735 ILCS 5/2–619(a)(3) (West 2010)), (2) the doctrine of forum non conveniens, (3) principles of comity, or (4) “the Illinois court's exclusivity opportunity to avoid duplicative litigation.” We will address each in turn.

¶ 18 I. Section 2–619(a)(3) of the Code

¶ 19 Section 2–619(a)(3) of the Code allows for a stay or dismissal of a cause of action if “there is another action pending between the same parties for the same cause.” 735 ILCS 5/2–619(a)(3) (West 2010). The purpose of section 2–619(a)(3) is “to avoid duplicative litigation.” Kellerman v. MCI Telecommunications Corp., 112 Ill.2d 428, 447, 98 Ill.Dec. 24, 493 N.E.2d 1045 (1986).

¶ 20 When a party brings a motion under section 2–619(a)(3), the trial court has discretion to determine if a dismissal is warranted. Id. A circuit court is not automatically required to dismiss or stay a proceeding under section 2–619(a)(3) even...