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04/07/87 In Re Marriage of Brenda S. Holem

April 7, 1987

IN RE MARRIAGE OF BRENDA S. HOLEM, PETITIONER-APPELLANT,


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

and JAMES M. HOLEM, Respondent-Appellee

506 N.E.2d 739, 153 Ill. App. 3d 1095, 106 Ill. Dec. 939 1987.IL.453

Appeal from the Circuit Court of Lawrence County; the Hon. Philip B. Benefiel, Judge, presiding.

APPELLATE Judges:

Justice Harrison delivered the opinion of the court. Jones and Welch, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Petitioner, Brenda S. Holem, appeals from an order of the circuit court of Lawrence County purporting to dissolve a temporary restraining order which she had obtained 10 days earlier. For the reasons which follow, we find that the controversy between the parties regarding that order has become moot. The appeal shall therefore be dismissed.

On April 7, 1986, petitioner filed an action against respondent, James M. Holem, seeking dissolution of the parties' marriage. She also made an ex parte application for a temporary restraining order to prevent respondent from leaving the State; from striking, making any contact with, or interfering with the personal well-being of petitioner and the two minor children of the parties in her custody; from removing those children from the court's jurisdiction; or from "transferring, encumbering, concealing or otherwise disposing of any assets or property in which he or petitioner claim ownership or some equity." The TRO was granted by order of the court the same day. In that order, the court further specified that a hearing would be held on April 17, 1986, on a motion by petitioner for temporary custody of the children, an award of temporary child support and maintenance, an order requiring respondent to transfer property to petitioner as security for such an award, and "for authority to sell real estate to prevent waste."

No prior notice of the application for a TRO was supplied to respondent. On April 11, 1986, petitioner's attorney did send a copy of the petition for dissolution and of the TRO to respondent by certified mail, return receipt requested. The receipt, which bore respondent's signature, indicates that he received the copies on April 12, 1986. There is no dispute, however, that personal service of process pursuant to section 2-201 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-201 et seq.), was not attempted at this time.

Thereafter, on April 17, 1986, a hearing was convened before the circuit court as scheduled. No verbatim transcript or bystander's report of that hearing has been furnished to us. The only indication of what transpired there is contained in the circuit court's record sheet and a written entry of appearance filed by respondent's attorney. From these documents, we understand that respondent's attorney entered his appearance at the hearing for the limited purpose of challenging the court's jurisdiction over his client. The argument made by respondent's attorney was that because respondent had not yet been served with process in the manner prescribed by section 2-201 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-201 et seq.), the court had not yet acquired jurisdiction over him and was therefore precluded from extending the TRO or granting any further interim relief, including a preliminary injunction, to petitioner. The circuit court apparently agreed, for it thereupon issued the following order: "Def. not having been served with summons, TRO is dissolved & cause continued for service." From this order petitioner now appeals.

Petitioner's appeal is before this court pursuant to Supreme Court Rule 307(a)(1) (87 Ill. 2d R. 307(a)(1)), which provides that "[a]n appeal may be taken to the Appellate Court from an interlocutory order . . . granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction." As a preliminary matter, we observe that while the order entered by the circuit court at the Conclusion of the April 17 hearing purported to dissolve the TRO, the TRO would have expired on that date in any case. TROs issued in dissolution cases seeking the type of relief requested by petitioner are specifically authorized by section 501(a)(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 501(a)(2)), but are subject to that portion of section 11-101 of our Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 11-101) which limits the duration of TROs issued without notice to 10 days unless, for good cause shown, the court grants an extension or unless the party against whom the order is directed consents to an extension (In re Marriage of Pick (1983), 119 Ill. App. 3d 1061, 1067-69, 458 N.E.2d 33, 37-38). Here, respondent clearly did not consent to an extension, and there is no evidence that such an extension was even requested. Under these circumstances, the effect of the circuit court's order was not actually to dissolve the TRO, but rather to deny the motion made by petitioner for additional interim relief which the original April 7 order indicated would be taken up at the April 17 hearing. In any event, to the extent that petitioner's motion included what might be characterized as a request for preliminary injunctive relief, the circuit court's refusal to grant that motion is nevertheless a proper subject for interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (87 Ill. 2d R. 307(a)(1)). Respondent has advanced no argument to the contrary.

As grounds for her appeal, petitioner contends simply that service of summons pursuant to section 2-201 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-201 et seq.) is not required either to extend a TRO or to obtain a preliminary injunction and that actual notice to the opposing party will suffice. Because such notice was provided here, petitioner contends that the trial court's order was erroneous as a matter of law and should be reversed. Respondent, for his part, denies that the trial court acted improperly, but asserts that we need not even consider the question because a subsequent order entered by the trial court on June 4, 1986, has rendered it moot. Since a finding of mootness would preclude further review, we must address this matter first. See In re Marriage of Grauer (1985), 133 Ill. App. 3d 1019, 1022, 479 N.E.2d 982, 985.

An issue is moot where no actual rights or interests of the parties remain or where events occur which render it impossible for the reviewing court to grant effectual relief to either party. (People ex rel. Hartigan v. Illinois Commerce Com. (1985), 131 Ill. App. 3d 376, 378, 475 N.E.2d 635; see also Springfield Rare Coin Galleries, Inc. v. Johnson (1986), 115 Ill. 2d 221, 230, 503 N.E.2d 300, 304.) Thus, questions arising from a trial court's order are moot when, because of developments following issuance of that order, reversal of the order can have no practical effect on the controversy. See Rotary Club v. Harry F. Shea & Co. (1983), 120 Ill. App. 3d 988, 994, 458 N.E.2d 1002, 1006.

In this case, the record indicates that after the trial court entered its order of April 17, petitioner made attempts to accomplish service of process on respondent. Her attempts were apparently unsuccessful, and on May 15, 1986, she filed her notice of interlocutory appeal from the April 17 order. A supplemental record submitted to us, however, further shows that on June 2, 1986, petitioner filed a second motion for interim relief. The second motion was supported by the same verified petition for dissolution as the first and requested essentially the same type of relief which the April 7 TRO indicated would be considered at the hearing on April 17, including an award to petitioner of temporary custody of the parties' children, temporary child support and maintenance, and authority to sell the parties' real estate. Omitted from the second motion was petitioner's earlier request for an order requiring respondent to transfer property to her as security for such ...


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