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06/06/89 Natila M. Kukla, v. Frederick T. Kukla Et Al.

June 6, 1989

NATILA M. KUKLA, PLAINTIFF-APPELLANT

v.

FREDERICK T. KUKLA ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

540 N.E.2d 510, 184 Ill. App. 3d 585, 132 Ill. Dec. 770 1989.IL.847

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. BILANDIC, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Plaintiff appeals from the dismissal with prejudice of her complaint against her spouse, whom she is divorcing, and his employer, alleging invasion of privacy and intentional infliction of emotional distress. We affirm.

Plaintiff filed a two-count complaint against her husband, Frederick T. Kukla, his employer Kukla Press, Inc., and Stanley Kukla, Frederick's brother and an officer of Kukla Press, alleging that Frederick harassed her by repeatedly calling her on a car telephone furnished by his employer and by "coming to her house and acting in a threatening and intimidating manner." Count I of the complaint mixes allegations of invasion of privacy with an implied right of action arising out of the violation of an order entered as part of the dissolution of marriage action between plaintiff and Frederick, which provided that plaintiff and Frederick are "mutually restrained from annoying and harassing each other in any way and more specifically, from telephoning the other, except that . . . [Frederick] may telephone the marital home for the sole purpose of speaking with his children." Count II is premised upon intentional infliction of emotional distress.

In response to the complaint, defendants filed a motion to dismiss, pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615), contending that the domestic relations division of the circuit court of Cook County retained jurisdiction over alleged violations of orders it has entered. A hearing on the motion was scheduled for July 28, 1988, and, on that date, counsel for defendants informed the trial Judge that he had agreed to plaintiff's request that the motion be continued for 30 days, to allow her time to file a response. The Judge answered as follows:

"What we do on 615 motions is, all motion Judges try to see whether any briefs are necessary. I would like to know arguably what the defense is particularly to Count I. So I want you to pick a date that is convenient for you . . . for status only and ask opposing counsel to come in with you and just tell me, 'arguably' what his defense is.

I just like to know if it is necessary to have briefs."

The trial Judge held a hearing on the motion on August 5, 1988, during which he denied plaintiff leave to file a written response and dismissed the complaint with prejudice. Plaintiff appeals that order as it applies to Frederick and Kukla Press, but not as to Stanley.

Plaintiff argues that she has a cause of action for Frederick's violation of a restraining order entered by the domestic relations division because a recent amendment to the rights of married women act provides that "[a] husband or wife may sue the other for a tort committed during the marriage." (Ill. Rev. Stat. 1987, ch. 40, par. 1001.) In dismissing the complaint, the trial court stated:

I would have to sustain the motion to dismiss this for the simple reason that those statutes that you pose have absolutely nothing to do with, as far as I am concerned, with allegations of a complaint that really seeks a remedy that belongs in the court of domestic relations. All these allegations are strictly those of harassment, of non-compliance with the court orders in the court of domestic relations and alleged physical and mental anguish and -- physical injury and mental anguish as a result thereof. If we were to rule otherwise, we'd open up the floodgates to the law division to everyone who has a domestic relations matter to come into this court for compensatory damages based upon non-compliance with court orders in the court of domestic relations. And obviously, that can't be done at all."

In response to plaintiff's counsel's request for leave to "prepare something in writing," the trial Judge ...


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