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In Re Marriage of Pick

OPINION FILED DECEMBER 7, 1983.

IN RE MARRIAGE OF HAROLD PICK, PETITIONER-APPELLEE, AND DOLORES PICK, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Lake County; the Hon. Jane D. Waller, Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Respondent, Dolores Pick (Dolores), appeals from a trial court order, which dismissed her two petitions seeking rules to show cause why petitioner, Harold Pick (Harold), should not be held in contempt of court. She also appeals from the trial court's entry of a judgment for $100 against her, in Harold's favor, for wrongful filing of these petitions.

The petitions alleged that Harold had violated an ex parte temporary restraining order (TRO). This TRO prohibited Harold from withdrawing funds from a certain bank and from a certain cash management fund. In its order of dismissal, the trial court found that Harold's alleged violations of the TRO occurred more than 10 days after the issuance of the TRO. The trial court, therefore, found that the TRO had expired as a matter of law before the time of the alleged violations.

No final judgment has been entered in the dissolution of marriage proceeding. This appeal is only from the dismissal of the petitions for rules to show cause in the contempt action, which was collateral to the dissolution proceeding.

Dolores raises the following issues on appeal: (1) whether the 10-day time limit for a TRO issued without notice required by section 11-101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 11-101) applies to a TRO issued without notice under section 501 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 501), and (2) if the 10-day limit does not apply, whether the judgment for $100 entered against her should be reversed.

On July 8, 1982, Harold filed a petition seeking a dissolution of the parties' marriage. On July 14, 1982, Dolores filed a petition for a TRO seeking, inter alia, to restrain Harold from withdrawing any funds from an E.F. Hutton cash management fund and from cashing a Capital Bank of Chicago certificate of deposit. On that same day, the trial court issued a TRO restraining Harold from withdrawing or using these funds. The parties do not dispute that this TRO was issued without notice being given to Harold. On August 5, 1982, the trial court entered an order in which it stated, inter alia, that "the previous restraining order is still in full force and effect."

On October 26, 1982, Dolores filed a petition for a rule to show cause against Harold alleging that on July 26, 1982, he obtained release of funds from the E.F. Hutton account in violation of the TRO. On November 1, 1982, Dolores filed a second petition for a rule to show cause against Harold alleging that he withdrew money on July 13, 1982, and on July 27, 1982, from the Madison Bank & Trust Company. No explanation is provided for the inconsistency between the TRO's language restraining withdrawal of funds from the Capital Bank and Dolores' petition, based on the TRO, concerning funds withdrawn from the Madison Bank. The parties do not discuss this inconsistency in their briefs.

On November 17, 1982, Dolores was allowed to amend the second petition on its face by changing the dates of the alleged withdrawals to July 15, 1982, and July 21, 1982. Dolores withdrew these amendments on November 18, 1982, and returned to the original dates of July 13, 1982, and July 27, 1982. No argument is presented by the parties on appeal concerning the fact that the first withdrawal is alleged to have occurred before the date that the TRO was issued.

On November 8, 1982, Harold filed a response to Dolores' petition for a rule to show cause. In argument on the petition, Harold maintained that the alleged violations occurred more than 10 days after the issuance of the TRO and, therefore, that it had expired prior to the alleged violations. In its order dismissing the two petitions for rules to show cause the trial court found that the TRO had expired 10 days after issuance, that the transfers complained of from the two accounts had occurred more than 10 days after the issuance of the TRO, and that no application to extend the TRO had been made prior to the acts complained of. The court also entered judgment against Dolores for $100 for the wrongful filing of the two petitions. The order further provided that there was no just reason to deny or delay enforcement or appeal of the order.

Dolores contends on appeal that a TRO issued without notice in a dissolution of marriage proceeding is not subject to the 10-day limitation on TROs issued without notice imposed by section 11-101 of the Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 11-101.) She maintains that section 501 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 501) is the sole statute governing the issuance of TROs in dissolution cases. She argues that the legislature intended that a TRO issued without notice in a dissolution proceeding would be controlled by section 501 and would be in effect until final judgment, unless dissolved upon the motion of the party restrained. Thus, she contends that section 11-101 is inapplicable to a TRO issued without notice in a dissolution case.

This court held in Melvin v. Melvin (1968), 94 Ill. App.2d 403, 236 N.E.2d 913 (abstract of opinion), that the Injunction Act (which included the predecessor of section 11-101) applied to divorce cases in the same manner that it applied to other civil cases. Although the Divorce Act did not contain a provision allowing the issuance of a TRO to prohibit a spouse from transferring property during the pendency of the action, and although the Divorce Act has now been superceded by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 101 et seq.), we are not persuaded that the legislature intended to exempt TROs issued without notice in dissolution proceedings from the time limitations of the old Injunction Act, which are not contained in section 11-101.

As the Historical and Practice Notes to section 501 of the Illinois Marriage and Dissolution of Marriage Act state, this section "* * * is derived from section 304 of the Uniform Marriage and Divorce Act, but its provisions in general reflect prior law as it was codified in the former Divorce Act * * *. It also represents a codification of case law on temporary relief arising in other contexts." (Ill. Ann. Stat., ch. 40, par. 501, Historical and Practice Notes, at 376 (Smith-Hurd 1980).) The notes further comment that "[a] temporary restraining order issued without notice expires within a period not to exceed ten days after issuance unless it is extended by the court. Ill. Rev. Stat. ch. 69, par. 3-1. See also section 410 [of the Illinois Marriage and Dissolution of Marriage Act]." (Ill. Ann. Stat., ch. 40, par. 501, Historical and Practice Notes, at 377 (Smith-Hurd 1980).) Thus, as the Historical and Practice Notes reflect, it is apparent that a TRO issued without notice in a dissolution of marriage proceeding is subject to the time limitation provisions of section 11-101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 11-101) in the same manner as TROs issued without notice in other types of cases are subject to those provisions. See Melvin v. Melvin (1968), 94 Ill. App.2d 403, 236 N.E.2d 913 (abstract).

Dolores maintains, however, that section 11-101 does not apply here because it is in conflict with section 501. She contends that because section 501 deals specifically with TROs in dissolution cases, that it controls over section 11-101, which applies generally to the issuance of TROs.

While it is true that a specific statutory provision controls over a general provision on the same matter (Sierra Club v. Kenney (1981), 88 Ill.2d 110, 126, 429 N.E.2d 1214; McCann v. Lisle-Woodridge Fire Protection District (1983), 115 Ill. App.3d 702, 711, 450 N.E.2d 1311), it is likewise true that when two statutes relate to the same subject matter they should be construed harmoniously where possible. (Jackson v. ...


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