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02/10/87 In Re Marriage of Jean Falstad

February 10, 1987

IN RE MARRIAGE OF JEAN FALSTAD, PETITIONER-APPELLANT, AND


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

CLARENCE FALSTAD, Respondent-Appellee

504 N.E.2d 908, 152 Ill. App. 3d 648, 105 Ill. Dec. 623 1987.IL.149

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

APPELLATE Judges:

PRESIDING JUSTICE SCARIANO delivered the opinion of the court. STAMOS and HARTMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

On November 28, 1984, petitioner-appellant, Jean Falstad, initiated dissolution of marriage proceedings in Cook County against her husband, Clarence Falstad (respondent-appellee herein). The parties had been married since 1954 and separated on July 12, 1984, at which time respondent moved out of the marital domicile. After filing her dissolution petition, petitioner attempted to serve respondent by substitute service in Racine, Wisconsin, where he was allegedly residing. Respondent filed a special and limited appearance to contest the validity of that service, contending, in a motion to quash service filed thereafter, that the Wisconsin address was not his usual place of abode. The circuit court denied petitioner's attempt to avail herself of discovery on the issue raised in respondent's motion to quash service and thereafter ordered that service be quashed. This appeal followed. We reverse.

Prior to their separation, the parties had established and maintained their marital domicile in Barrington, Illinois. Petitioner initiated these proceedings, and pursuant to her request a special process server, Gerald Yohanna, was appointed by the court for the purpose of serving respondent. Substitute service of process was effectuated on June 28, 1985, by Yohanna's leaving a copy of the summons at 3815 Lighthouse Drive, Racine, Wisconsin, with respondent's niece, Kristin Falstad. That address was respondent's brother's home.

Respondent filed his special and limited appearance on July 26, 1985. Several months later, on October 17, 1985, he filed a motion to quash service, supported by affidavits, contending that the Racine address was not his usual place of abode, that service was defective, and that accordingly the court lacked personal jurisdiction over him. The affidavits filed in support were those of his brother, David Falstad, and his niece, Kristin. In their affidavits, they stated that they had resided at the Racine address for over six years and that to the best of their knowledge, respondent had never lived there or declared it as his usual place of abode or residence. In January 1985, after several indeterminate hearings had been held on the merits of his motion to quash, respondent filed his own affidavit, which was to the same effect as those of his brother and niece.

On November 1, 1985, petitioner orally requested leave to undertake discovery pursuant to Supreme Court Rule 201(l) (87 Ill. 2d R. 201(l). That matter was presented to Judge Marsalek, who granted the request and entered an order accordingly. Thereafter, petitioner filed a notice of deposition, seeking to interrogate respondent, among others. After respondent refused to comply with that notice, petitioner filed a motion requesting the imposition of sanctions.

In opposition to the motion to quash, petitioner filed three items in support of her allegation that respondent's abode was in Racine. First, petitioner presented the affidavit of the postmistress of Barrington, Illinois, who averred that she had searched her records and located a change-of-address card filled out by respondent, with an effective date of November 29, 1984. We note parenthetically that this was the day after petitioner initiated divorce proceedings. In that change-of-address card, respondent requested that all of his mail be forwarded to 3815 Lighthouse Drive, Racine, Wisconsin. In another affidavit, the postmaster of Racine stated that he had searched his records and could not locate any change-of-address form completed by respondent to alter the earlier forwarding address. In his own affidavit, respondent asserted that he traveled extensively and that he used the Racine address merely as a matter of convenience in order that correspondence could reach him easily. Finally, petitioner presented evidence that James Nardini, a car rental agent in Des Plaines, Illinois, would testify that respondent entered into a car rental agreement in November 1985 in which he represented that his address was 3815 Lighthouse Drive in Racine. Notably, that agreement was executed after substitute service had been effectuated and after respondent filed his motion to quash service and supporting affidavits alleging that he did not reside in Racine.

These matters were presented to Judge Jorzak, who held a number of hearings thereon. On December 19, 1985, Judge Jorzak held that the motion to quash took precedence over all discovery matters, succinctly stating "I will tell you this comes first. No service, no sanctions. You know better than that." On December 31, 1985, petitioner requested reconsideration of that decision, noting that Judge Marsalek had already authorized Rule 201(l) discovery. The court again denied the request, this time stating:

"Your discovery is a form of harassment. You are attempting to do what you can't do through the front door. . . . I oppose your tactics. I think it is something that you ought to discontinue. You are absolutely incorrect."

The court's ruling was predicated on respondent's argument that if he complied with the discovery notice and appeared for a deposition, petitioner would simply use ...


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