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08/05/88 In Re Marriage of Thomas R. Kelso

August 5, 1988

IN RE MARRIAGE OF THOMAS R. KELSO, PETITIONER-APPELLANT,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

and TANE L. KELSO, Respondent-Appellee

527 N.E.2d 990, 173 Ill. App. 3d 746, 123 Ill. Dec. 352 1988.IL.1228

Appeal from the Circuit Court of Cook County; the Hon. Herman Knell, Judge, presiding.

APPELLATE Judges:

JUSTICE SULLIVAN delivered the opinion of the court. LORENZ, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN

Petitioner appeals from an order granting respondent's motion to quash service of process in a dissolution of marriage action. Petitioner contends that the circuit court erred in ruling that it lacked personal jurisdiction over respondent. For the reasons hereinafter set forth, we reverse the order quashing service of process and remand the cause to the circuit court for further proceedings.

On December 30, 1987, petitioner, Thomas R. Kelso, a resident of Illinois, filed an action in the circuit court of Cook County for dissolution of his marriage to respondent, Tane L. Kelso, who is presently a resident of Hawaii. Respondent was served with summons and a copy of the petition for dissolution in Honolulu, Hawaii, on January 8, 1988. On January 27, 1988, after being served with process in the Illinois action, respondent filed for divorce in the family court of the State of Hawaii. Thereafter, on February 10, 1988, respondent, through her counsel, filed a special and limited appearance in this action. On February 18, 1988, respondent's counsel mailed a notice of motion to petitioner's counsel indicating that on February 23, 1988, he would appear before Judge Knell and present his motion to transfer the dissolution of marriage action from the circuit court of Cook County, Illinois, to the family court of the State of Hawaii, on the grounds of forum non conveniens. Petitioner filed his response to the motion on February 22, 1988.

Although there is no report of proceedings for February 23, 1988, we note that on April 15, 1988, Judge Knell allowed petitioner's motion to amend the record on appeal to include a copy of an order that he entered on February 23, 1988, in this matter. That order, which was drafted by respondent's counsel and was signed by Judge Knell, states:

"This cause coming on to be heard on respondent's motion for transfer, due notice having been given and the court being advised in the premises, it is hereby ordered that respondent is granted to March 22, 1988, to reply to petitioner's response and that this cause be and is hereby set for hearing before the 'Hon. Judge' Knell without further notice."

In his order of April 15, 1988, allowing the record to be supplemented with this order, Judge Knell recited the following facts: that the document was a true and correct copy of the original; that the original document had been stricken from the court file and torn into four approximately equal pieces; that the signature of the Judge was stricken from the order; and that the original document was subsequently taped together so as to restore it as much as possible to its original form. A copy of the original document was then made, and the original document was subsequently lost from the file. The April 15, 1988, order noted that counsel for both parties agreed to the wording thereof.

Respondent did not object to petitioner's motion to amend the record to include the February 23, 1988, order or his motion to file the order as a supplemental record with this court.

Petitioner filed an emergency petition on February 23, 1988, for a temporary restraining order to bar respondent and her agents from making any court appearances, effecting service of process, filing further pleadings or motions or otherwise attempting to pursue the Hawaii divorce action. The motion was noticed for a hearing on March 1, 1988.

On that date, respondent presented a motion to quash service of process for lack of personal jurisdiction. In this motion, she alleged that she is a citizen of the State of Hawaii, that she has never lived in Illinois, that she never had a matrimonial domicile in this State, that no marital acts occurred here and that she has done nothing to subject herself to the jurisdiction of our courts. After the motion was briefed and argued, Judge Knell, on March 14, 1988, granted respondent's motion to quash service of ...


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