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Shady v. Shady

MARCH 28, 1973.

GEORGE F. SHADY, PLAINTIFF-APPELLEE,

v.

MARIE M. SHADY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Tazewell County; the Hon. JAMES D. HEIPLE, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 25, 1973.

This is an appeal from an order of the circuit court of Tazewell County denying a motion to vacate and dissolve an injunction order previously issued by that court.

The events leading up to this appeal are as follows. On September 2, 1971, Marie M. Shady, hereinafter referred to as the wife, filed a sworn complaint for divorce against George F. Shady, hereinafter referred to as the husband. The suit was filed in Clark County in the State of Nevada and the wife alleged that she had for six weeks been a bona fide resident of that county and state and her husband was personally served with a summons and a copy of the complaint.

On September 3, 1971, the wife moved to dismiss a divorce suit pending against her husband in Tazewell County, Illinois. The court on that date granted her motion and entered an order dismissing the action.

On September 28, 1971, the husband filed a sworn complaint for injunction in Tazewell County in which it was alleged that his wife was in fact a resident of Tazewell County and that her sworn allegation as to being a resident and domiciliary of Clark County, Nevada, was false. On the same date the circuit court of Tazewell County entered a restraining order, restraining his wife from proceeding further in the Nevada divorce action. The restraining order contained a finding that the wife's Illinois divorce action had been dismissed without notice to her husband and that she was not a bona fide resident of Nevada, but was a resident of Tazewell County, Illinois.

Also on September 28, 1971, the husband moved to vacate the order which had dismissed the Illinois action for divorce, on the grounds that he had received no notice of his wife's motion to dismiss the suit. The husband's motion to vacate was supported by affidavit but it does not aver that he failed to receive notice of the motion, only that he received no notice of the hearing on the motion. The record discloses that a copy of the wife's motion to dismiss the Illinois divorce action was mailed to the husband's attorney on September 2, 1971. On October 7, 1971, a response was filed by the wife to her husband's motion to vacate the order of dismissal and the substance of this response is that no hearing is required on a voluntary dismissal. No hearing was held nor has a ruling been entered by the trial court on the motion to vacate the dismissal order.

A hearing was held by the trial court on October 7, 1971, to determine whether a temporary injunction should issue. At this hearing the wife filed a special appearance, and objected to the jurisdiction of the Illinois court over her person and over the subject matter of the complaint for injunction. During this hearing it was represented to the court by the husband's attorney that he had telephoned the wife's Nevada attorney and advised him of the temporary restraining order which had been issued in Illinois and that further he had forwarded by mail to the Nevada attorney a copy of the injunction writ. It was admitted by the husband's attorney that there had been no service of process in Nevada on his wife in regard to the injunction suit. During the hearing the attorney for the wife stood on a special and limited appearance and objected to the jurisdiction of the Illinois court as to the person of the wife who was then in Nevada, and as to the finding of her place of residency by the court.

At the conclusion of the hearing the trial court determined that it did have jurisdiction and granted a temporary injunction in the same language as the restraining order. The temporary injunction was to be in effect until November 10, 1971, at which time the court would determine whether the temporary injunction should be made permanent. It should be noted that the record fails to show the issuance of any writ of temporary injunction or the service of any process on the wife in Nevada.

On November 9, 1971, the attorney for the wife again entered a special and limited appearance for her and repeated her objection to the Illinois court claiming jurisdiction over her person and the subject matter of the action, to wit, the finding as to her place of residence. At this time there was filed a certified copy of the decree of divorce which had been granted to the wife on October 11, 1971, by the Nevada court. The decree contained a finding that she was a bona fide resident of Nevada and had been domiciled there for more than six weeks prior to her commencement of the divorce action.

The husband on December 6, 1971, filed a petition to show cause why the wife should not be held in contempt of court for violating the order granting a temporary injunction. The court entered an order directing the wife to show cause on December 22, 1971, why she should not be held in contempt of court. After an agreed continuance the wife for the first time made a general appearance before the court on January 11, 1972, and filed a motion to vacate the order granting a temporary injunction on the grounds that the court lacked jurisdiction to issue the same. After continuances this motion to vacate was heard on June 19, 1972. At this hearing a transcript of the testimony heard by the Nevada court regarding the question of the wife's residence was filed. After argument by counsel the court denied the motion to vacate its order directing the issuance of a temporary injunction and further set a date for a hearing on the rule to show cause. An order incorporating these rulings was entered on June 19, 1972, and this appeal stems from that order.

On July 13, 1972, the wife filed her notice of interlocutory appeal. Subsequently on July 19, 1972, an order was entered by the trial court approving a supersedeas bond and staying the enforcement of the rule to show cause pending appeal.

We have gone into considerable detail setting forth in a chronological order the sequence of the pleadings filed and the acts of the parties to this cause because we believe a clear understanding of the same is essential in order to determine the primary issue presented by this appeal, which is whether the trial court had any jurisdiction over the wife against whom it issued a temporary injunction order.

• 1, 2 In determining this issue we at the outset recognize the well-settled rule of law that there is no question as to the right to restrain a person over whom the court has jurisdiction from bringing a suit in a foreign state. (Emphasis supplied.) (Harris v. Pullman, 84 Ill. 20, 25 Am.Rep. 416). The courts do not in such cases pretend to direct or control the foreign ...


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