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Bashwiner v. Bashwiner

OPINION FILED JUNE 29, 1984.

STEVEN L. BASHWINER, PETITIONER-APPELLEE,

v.

ARDEN J. BASHWINER, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Richard H. Jorzak, Judge, presiding.

PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Respondent appeals from the denial of her motion to dissolve a temporary restraining order and from a preliminary injunction entered in dissolution of marriage post-judgment proceedings. Two issues are raised: (1) whether entry of the temporary restraining order was proper; and (2) whether the court erred in issuing the preliminary injunction. We reverse.

This case originated as an action for dissolution of marriage between Steven (petitioner) and Arden (respondent) Bashwiner. On July 24, 1980, the circuit court of Cook County entered a judgment for dissolution of marriage which incorporated a settlement agreement previously entered into by the parties. The settlement agreement set forth both respondent's custodial status and petitioner's visitation rights as to the minor children. On March 12, 1981, pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72), now codified as section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401), the court vacated the settlement agreement portions of the judgment for dissolution. This court subsequently reversed the order granting the section 72 petition and reinstated the original judgment. In re Marriage of Bashwiner (1982), 107 Ill. App.3d 772, 438 N.E.2d 490.

On June 2, 1983, respondent filed a petition in the circuit court of Lake County, where both parties and the minor children then resided, seeking leave to remove the parties' minor children from Illinois in order to establish their permanent residence in Washington, D.C. On June 7, without notice to respondent, petitioner filed a verified motion in the Cook County court seeking a temporary restraining order and a preliminary injunction. On that date the court issued a temporary restraining order which prohibited respondent from further proceeding in the circuit court in Lake County or in any other court and ordered a hearing on the preliminary injunction to be held on June 17.

On June 17, 1983, respondent moved to dissolve the temporary restraining order and to dismiss petitioner's motion for injunctive relief. The court denied the motion to dissolve and ordered an evidentiary hearing on the motion to dismiss. The court subsequently granted the preliminary injunction and ordered that it would remain in effect pending further order of the court. Respondent appeals.

OPINION

• 1 The first issue raised is whether the court erred in granting the temporary restraining order without notice. Respondent contends that the allegations of irreparable injury contained in petitioner's motion failed to conform to the statutory requirements *fn1 and that the temporary restraining order entered without notice to her should, therefore, be reversed.

The instant temporary restraining order was granted upon petitioner's motion for preliminary injunction filed pursuant to section 501 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 101 et seq.) (IMDMA) which, in pertinent part, provides that "[t]he court may issue a temporary restraining order without requiring notice to the other party only if it finds, on the basis of the moving affidavit or other evidence, that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed." (Ill. Rev. Stat. 1981, ch. 40, par. 501(b).) The time for responding is 21 days or such other period as is specified in the order. Ill. Rev. Stat. 1981, ch. 40, par. 501(c).

A temporary restraining order is an emergency remedy of brief duration which may issue only in extraordinary circumstances. (Paddington Corp. v. Foremost Sales Promotions, Inc. (1973), 13 Ill. App.3d 170, 300 N.E.2d 484.) The granting of such relief without notice is considered most drastic and is appropriate only under the most extreme and urgent circumstances. (Board of Education v. Parlor (1981), 85 Ill.2d 397, 424 N.E.2d 1152; Skarpinski v. Veterans of Foreign Wars (1951), 343 Ill. App. 271, 275, 98 N.E.2d 858.) Accordingly, issuance of injunctions without notice has been allowed only in narrowly restricted situations such as where the facts of the case or the history of the parties indicated that the giving of notice would result in harm by accelerating the very act sought to be enjoined or where the act to be enjoined either was taking place or would be undertaken or completed in the time required for notice. (Streamwood Home Builders, Inc. v. Brolin (1960), 25 Ill. App.2d 39, 43, 165 N.E.2d 531.) Thus, in reviewing the issuance of a temporary restraining order without notice the critical inquiry is whether, in the minutes or hours necessary to procure defendant's appearance, defendant could and would take such action as to obstruct seriously the court from dealing justly and effectively with the issues in dispute. Skarpinski v. Veterans of Foreign Wars (1951), 343 Ill. App. 271, 275-76, 98 N.E.2d 858.

The verified petition in the instant case contains allegations that unless the injunction was granted petitioner would suffer immediate and irreparable harm due to the possibility that the Lake County court would permit removal of the Bashwiner children from Illinois in violation of the prior Cook County court order prohibiting such removal and that the mental and physical health of the minor children would be irreparably harmed unless the threat of removal from their schools, their environment and their father was promptly eliminated. Initially, we note that the petition contains no factual basis for these allegations. They are, therefore, mere conclusions and are insufficient grounds for issuance of a temporary restraining order. Further, even if we overlook the conclusional nature of petitioner's allegations and lack of factual basis therefor, a review of the petition reveals that the harm or injury alleged therein is not the type of harm the prevention of which is properly achieved by issuance of an injunction without notice. Petitioner does not allege, nor does the record indicate, that the injunction is sought to preserve the subject matter of the controversy from destruction until the court is afforded an opportunity to rule. (See Skarpinski v. Veterans of Foreign Wars (1951), 343 Ill. App. 271, 98 N.E.2d 858.) Nor is there any indication in the record that the giving of notice would accelerate the act sought to be enjoined or that during the time required for giving notice petitioner's rights would be prejudiced. See Board of Education v. Parlor, (1981), 85 Ill.2d 397, 424 N.E.2d 1152.

On Thursday, June 2, 1983, respondent filed in Lake County her petition and a notice of motion that on Friday, June 10, she would appear and move the court to set a date for hearing on the petition. Petitioner filed his motion seeking a temporary restraining order and a preliminary injunction three business days later, on Tuesday, June 7, three days before respondent was to appear in Lake County. On these facts, where a period of several days elapsed between respondent's Lake County petition and petitioner's motion for injunction and between such motion and the date upon which the Lake County court would set a hearing date, and where petitioner's attorney was apparently readily accessible, we find that it was error to issue the injunction without notice. Cf. Streamwood Home Builders, Inc. v. Brolin (1960), 25 Ill. App.2d 39, 165 N.E.2d 531.

Petitioner also asserts that in considering the sufficiency of his allegations of irreparable injury this court should include his attorney's representation to the trial court that no notice was given prior to seeking the temporary restraining order because he feared that respondent would, if given notice, seek to enjoin petitioner from proceeding in Cook County. Although the trial court may base its finding of irreparable injury upon "the moving affidavit or other evidence" we do not believe that such allegations or other unsworn testimony constitute "evidence." Moreover, nothing in the record or in the history of the parties supports such allegation. Respondent has never in the past tried to proceed against petitioner without giving notice and, in the matter here at issue, provided him ample notice of her intent to proceed in Lake County. Furthermore, even if we were to accept the attorney's representation to the trial court as evidence, the allegation of irreparable injury is still insufficient to dispense with the notice requirement for the reasons stated above. There is no evidence here of an emergency situation wherein the rights of one party would be prejudiced in the time required to give notice. We find, therefore that the court erred in issuing the temporary restraining order without notice.

• 2 The second issue raised is whether the court erred in granting the preliminary injunction. In support of her contention that petitioner's motion for preliminary injunction should have been dismissed or denied, respondent argues generally that petitioner failed to plead and prove all of the prerequisites for injunctive relief. See generally Betts v. Department of Revenue (1979), 78 Ill. App.3d 102, 396 N.E.2d 1150; McCormick v. Empire Accounts Service, Inc. (1977), 49 Ill. App.3d 415, 417, 364 N.E.2d 420.

Petitioner's arguments, however, center upon his contention that the circuit court of Cook County properly issued the instant injunction to protect its own jurisdiction. (See, e.g., In re Marriage of Alder (1981), 98 Ill. App.3d 525, 424 N.E.2d 763.) He asserts that the Cook County court has exclusive jurisdiction to modify its prior custody determination or, alternatively, that even assuming concurrent ...


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