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In Re Marriage of Sherwin

OPINION FILED MARCH 30, 1984.

IN RE MARRIAGE OF TOBY S. SHERWIN, PETITIONER AND COUNTERRESPONDENT-APPELLEE, AND THEODORE R. SHERWIN, RESPONDENT AND COUNTERPETITIONER-APPELLANT.


Appeal from the Circuit Court of Cook County; the Hon. Aubrey F. Kaplan, Judge, presiding.

JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 15, 1984.

This is an appeal from an interlocutory order denying respondent's petition for a preliminary mandatory injunction directing petitioner to return light fixtures and certain items of furniture she had removed from the marital domicile a few days prior to filing a petition for dissolution of marriage. The issues presented for review are: (1) whether a sufficient evidentiary hearing was held on respondent's petition; and (2) whether it was an abuse of discretion for the trial court to deny the issuance of a preliminary mandatory injunction. For the reasons that follow, we affirm the judgment of the trial court.

On May 10, 1983, upon returning home from work, respondent discovered that petitioner had removed from the marital domicile substantially all of the household furniture, decorative objects of art, paintings, crystal, sterling silver place settings, area rugs, bathroom and kitchen linens, pots, pans, food, liquor, cleaning materials, lamps, light fixtures (including track lighting), shelving, shower curtain and various sundries. Photographs of the apartment taken subsequent to May 10, 1983, indicate that respondent was left with a straight-back chair, an end table, three folding chairs, a portable television with stand, an armoire, a breakfront, a bed, piano with bench, a desk, wall unit bookshelves with drawers, a floor lamp, a table lamp, overhead kitchen lighting, a kitchen table with four chairs, kitchen appliances, all window blinds and miscellaneous paintings and art objects.

In his response and counterclaim to the petition for dissolution of marriage filed on May 18, 1983, respondent prayed for a preliminary mandatory injunction directing petitioner to return all of the items removed from the apartment on May 10. In support of his request for injunctive relief, respondent alleged, inter alia, that: (1) petitioner's wrongful removal of furnishings and other property from the marital domicile "rendered the apartment practically uninhabitable except as a place to sleep and bathe," and unsuitable for entertaining; (2) the oil paintings and bronzes which were wrongfully removed are unique and irreplaceable and cannot be compensated for by money damages; and (3) the furniture, hall lighting, track lighting, dining room fixture and three area rugs "were all specially designed and created for use at [the] apartment."

On May 25, 1983, in response to respondent's emergency motion, the trial court entered a temporary restraining order (TRO) "restraining and enjoining [petitioner] from in any manner, directly or indirectly transferring, selling, encumbering, concealing or otherwise disposing of any of the property removed by her," and scheduled the hearing on respondent's petition for preliminary injunctive relief for June 3, 1983. Following several continuances and extensions of the TRO, a hearing was held on respondent's petition on July 7, 1983, after which the court ruled that it had jurisdiction to enter a preliminary mandatory injunction if the facts warranted, and extended the TRO, pending further order of the court or final resolution of the case. In light of its jurisdictional ruling, the court allowed the parties an opportunity to continue out-of-court discussions regarding interim possession of the disputed property before proceeding on the request for a mandatory injunction. The parties agreed to further discussions and the hearing was thus continued to July 13, 1983. On that date, respondent indicated to the court that the parties had agreed to exchange certain decorative items; however, the return of household furniture and lighting remained in dispute. In response, petitioner argued that the court was without jurisdiction to determine possession of the remaining items because those items were either acquired after marriage or were subject to claims of gift or inheritance. Thus, a determination should be reserved for the final resolution of distribution of the marital property. The trial court replied:

"Well, I am not going to get into the issue of whose property is whose. But it seems to me that anything that was affixed, and that is track lighting and things of that kind, ought to be put back. And * * * the furnishings ought to be divided in such a way as both of them can live in a reasonable amount of comfort. And put an end to this."

In arguing against return of any items, petitioner stated that the agreement reached by the parties which was presently before the court should be conclusive of interim possession; that the fixtures were purchased by petitioner during the marriage with her own money; and that photographs taken of the apartment demonstrate that it is fully furnished. Thereafter, the trial court viewed photographs of the apartment submitted by both parties which depicted its status both before and after May 10, 1983, and was advised that petitioner had already affixed the track lighting to her new apartment. The trial court then asked respondent why he did not simply purchase some new fixtures, put them up, rent some furniture, and then request compensation upon final resolution of the case. In this regard, the court further stated:

"There are other things other than specific performance, Mr. Sherwin. And you can get compensation for expenditures that you have made. And if she has hung those fixtures someplace else and to have her tear them down and to reinstall them in the place that they were, if I do that, you understand that in the event that the Court — if the trial Court awards them to you, you are either going to have to buy them from her at the cost that she names — ."

Respondent declined this suggestion and arguments continued as to who had paid for which items. When the trial court ruled that the controversy was "not a matter for the Court of law," the following colloquy ensued:

"RESPONDENT: It was last time.

COURT: And I [had] not seen the photographs of the premises. And now that I have seen it, I'm sorry that I said that.

RESPONDENT: And the photograph shows that this is pretty barren.

COURT: You will have to take this to the trial Court. * * * And let the ...


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