Wells v. Wells

• Citation: 343 N.E.2d 215,36 Ill.App.3d 91
• Decision Date: 18 February 1976
• Docket Number: No. 75--415,75--415
• Parties: Norris Judd WELLS, Petitioner-Appellee, v. Marilyn Kay WELLS, now known as Marilyn Kay Rowe, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 215

343 N.E.2d 215

36 Ill.App.3d 91

Norris Judd WELLS, Petitioner-Appellee, v. Marilyn Kay WELLS, now known as Marilyn Kay Rowe Respondent-Appellant.

No. 75--415.

Appellate Court of Illinois, Fifth District.

Feb. 18, 1976.

Robert J. Waaler, Champaign, for respondent-appellant.

W. R. Todd and Wm. Robin Todd, Flora, for petitioner-appellee.

EBERSPACHER, Justice.

This is an appeal by the respondent, Marilyn Kay Wells, A.k.a., Marilyn Kay Rowe, from an injunction issued by the circuit court of Clay County restraining the respondent from pursuing an action filed in the courts of Minnesota, as requested by the petitioner, Norris Judd Wells.

A summary of the facts surrounding the instant appeal is necessary to understand the issue presented for review. The petitioner and the respondent were divorced by a decree of divorce entered by the circuit court of Clay County on April 15, 1974. The decree awarded the custody of the parties' two minor daughters to the petitioner. The respondent perfected an appeal to this Court from the entry of the divorce decree. That appeal, entitled Wells v. Wells, No. 74--334, was dismissed on petitioner's motion for failure to comply with Supreme Court Rule 343 (Ill.Rev.Stat.1973, ch. 110A, par. 343). The respondent thereafter filed two separate petitions to modify the custodial provisions of the decree for divorce in the circuit court of Clay County. Both of these petitions were dismissed upon motion of the petitioner for failure to state a cause of action. The order dismissing the last of these petitions was appealed to this Court on April 28, 1975, under the title of Wells v. Wells, No. 75--197, while this appeal was pending in this Court, the respondent and her present husband moved to Winona, Minnesota. In late June 1975, the respondent secured temporary control over the daughters of her previous marriage for a five week summer visitation period, as provided in the divorce decree. On or about July 29, 1975, the respondent 'filed proceedings in the District Court of the Third Judicial District in the State of Minnesota to secure permanent custody of the two minor children.' The Minnesota court entered an order upon the petitioner to appear on August 22, 1975, and show cause why an order should not be entered placing custody of the children with the respondent. The Minnesota court further granted temporary custody of the minor children to the respondent pending its final determination of the matter. On August 6 1975, the petitioner filed in the circuit court of Clay County a petition for a writ of injunction to restrain the respondent from pursuing her custodial action in the State of Minnesota. The circuit court entered an order issuing a temporary injunction restraining the respondent from pursuing her action in the State of Minnesota and set a hearing for August 13, 1975, to make the temporary injunction permanent. An answer to the petition was filed by the respondent. A hearing was conducted on August 13, 1975, and the circuit court ordered that the injunction 'shall remain in full force and effect until the further order of this court.' On August 27, 1975, the respondent perfected the instant appeal, entitled Wells v. Wells, No. 75--415. On September 2, 1975, this Court after receiving no response on its order to show cause why the appeal entitled Wells v. Wells, No. 75--1970, should not be dismissed for failure to comply with Supreme Court Rule 343 (Ill.Rev.Stat.1973, ch. 110A, par. 343), dismissed that appeal.

The sole issue before this Court in the instant appeal is the propriety of the circuit court's issuance of an injunction restraining the respondent from pursuing modification of the divorce decree in the courts of Minnesota.

It is not questioned that a court of equity has the power, in appropriate circumstances, to restrain persons within its jurisdiction from instituting or proceeding with actions in courts of this or sister States. (Crawley v. Bauchens, 57 Ill.2d 360, 312 N.E.2d 236, 239; James v. Grand Trunk Western R.R. Co., 14 Ill.2d 356, 152 N.E.2d 858, Cert. den., 358 U.S. 915, 79 S.Ct. 288, 3 L.Ed.2d 239.) Nevertheless, it has been repeatedly stated that the exercise of such power by a court of equity is a matter of great delicacy invoked with great restraint in order to avoid distressing conflicts and reciprocal interference with jurisdiction. (E.g., James v. Grand Trunk Western R.R. Co., Supra.) Consequently, unless a clear equity is presented requiring the interposition of the court to prevent a manifest wrong or injustice the courts of this State should not restrain the prosecution of a suit in a foreign jurisdiction. (Royal League v. Kavanaugh, 233 Ill. 175, 84 N.E. 178; Catherwood v. Hokanson, 201 Ill.App. 462.) No general rule can be laid down as to when the court ought to enjoin a party from prosecuting a suit in a foreign jurisdiction and, therefore, each case must be judged on its own facts. Wabash Ry. Co. v. Lindsey, 269 Ill.App. 152; Mobile & O.R. Co. v. Parrent, 260 Ill.App. 284.

Judging the instant case on the facts, as set forth earlier in this opinion, we find no error in the issuance of an injunction by the circuit court of Clay County. While we agree with respondent that mere inconvenience and expense of defeating a foreign action does not constitute a manifest wrong or injustice adequate to justify an injunction, where complete relief can be had where litigation is pending, the institution of foreign proceedings will be regarded 'as vexations harassing of the opposite party.' (Catherwood v. Hokanson, 201 Ill.App. 462.) Moreover, as we stated in Crawley v. Bauchens, 13 Ill.App.3d 791, 300 N.E.2d 603, 606, Aff'd. 57 Ill.2d 360, 312 N.E.2d 236,

'(t)he law is clear in Illinois that subsequent to a divorce decree, the court granting such decree retains continuing jurisdiction of the parties with regards to children of the marriage, custody and support. (Eggemeyer v. Eggemeyer, 86 Ill.App.2d 224, 229 N.E.2d 144; Carlson v. Carlson, 80 Ill.App.2d 251, 225 N.E.2d 130.) Illinois courts have but recently reiterated the specific rule that a party may not avoid this continuing jurisdiction of the trial court which entered the original divorce decree by moving outside the court's geographical jurisdiction. (McClellan v. McClellan, 125 Ill.App.2d 477, 261 N.E.2d 216; Sharpe...