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February 9, 1994


Appeal from the Circuit Court of Cook County. Honorable Howard Kaufman, Judge Presiding.

Rehearing Denied March 28, 1994. Released for Publication April 19, 1994.

Cerda, Greiman, Tully

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Petitioner, Mary James n/k/a Mary Kenary, appeals from the circuit court of Cook County's entry of a preliminary injunction enjoining her from filing any cause of action related to the custody or residency of the parties' minor child in any State other than Illinois. Petitioner argues that the preliminary injunction was an abuse of the trial court's discretion because respondent, Reinhold Raymond James, failed to establish the need for injunctive relief. We reverse and remand.

Petitioner and respondent were divorced on August 30, 1988. The parties were awarded joint custody of their son, David, born June 12, 1982, and petitioner was awarded physical custody. On February 3, 1989, respondent filed a petition for custody modification.

On May 10, 1989, petitioner filed a motion for leave to remove the child from Illinois based on her engagement to a man who resided in Texas. Petitioner alleged that the child's quality of life would greatly improve as a result of her remarriage and relocation to Texas. Respondent opposed the move to Texas. Petitioner's petition was granted on a temporary basis pending expert testimony. Respondent was granted visitation, and on August 6, 1990, petitioner was granted leave to permanently remove the child to Texas. Respondent filed a motion to reconsider, which was denied. Respondent visited his son in Texas, and his son came to Illinois and lived in his home from time to time.

On April 1, 1991, respondent filed a petition for rule to show cause based on petitioner's intent to move to Florida with the child. The trial court denied respondent's prayer for a rule to show cause and finding of contempt based on the finding that the move to Florida was not a willful contemptuous move.

On August 2, 1991, respondent filed a petition for a preliminary injunction enjoining petitioner from filing any lawsuit in Florida concerning the child. Respondent alleged the following. Petitioner and the child had been residing in Florida since February 15, 1991. Respondent would be irreparably harmed by the filing of a cause of action in Florida because respondent would not be able to defend himself appropriately in Florida, Florida was an inconvenient forum in which to prosecute or defend any causes of action, and the Florida courts would be prejudiced against him. There was an inadequate remedy at law available to respondent should no preliminary injunction issue. Respondent had an ascertainable legal right that needed protection, which was to proceed with his pending petition to modify custody in the appropriate jurisdiction. The appropriate jurisdiction in which to hear that matter was Illinois. Respondent further alleged that there was a likelihood of success on the merits.

The trial court entered a preliminary injunction against petitioner from filing any legal proceeding in any other State as it related to the minor child. The trial court found that irreparable harm would result and that there was no adequate remedy at law.

Petitioner filed a notice of interlocutory appeal.

Petitioner argues on appeal that respondent was not entitled to injunctive relief because he failed to demonstrate that: (1) he will suffer irreparable injury without the injunction; (2) there was no adequate legal remedy; (3) there was the likelihood of his success on the merits; and (4) the balance of hardships favored respondent. Specifically, petitioner argues that: (1) although Illinois has jurisdiction under the Uniform Child Custody Jurisdiction Act (750 ILCS 35/1 et seq. (West 1992)) (UCCJA), that factor alone did not warrant the injunction, particularly because Illinois does not qualify as the State with the most current information needed in a custody modification suit; (2) respondent did not have a legal right to protect his jurisdictional choice by means of an injunction preventing petitioner from proceeding in her choice of jurisdiction where the UCCJA permitted a court to concede jurisdiction to the forum with the most significant connection with the child; (3) the mere inconvenience and expense of defending an action in another jurisdiction did not justify an injunction; (4) respondent's fears of filing an action in Florida were speculative; (5) respondent had an adequate remedy at law to request the Illinois court not to concede jurisdiction to Florida; (6) respondent did not factually support his assertion that he was likely to succeed on the merits of his claim that Illinois was the sole appropriate jurisdiction to hear his custody modification action; and (7) there was little likelihood that Illinois would not concede jurisdiction to Florida because Illinois did not qualify for jurisdiction under any of the substantive considerations of section 4(a) of the UCCJA (750 ILCS 35/4(a) (West 1992)).

It is not the function of a preliminary injunction to determine controverted rights or to decide disputed facts or the merits of a case. ( Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 611, 229 N.E.2d 536.) It is an extraordinary remedy which is applicable only to situations where an extreme emergency exists and serious harm would result in the absence of the injunction. Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 386-87, 483 N.E.2d 1271, 1277.

In order for a preliminary injunction to issue, petitioner must establish that: (1) he possesses a clearly ascertained right which needs protection, (2) he will suffer irreparable harm without the injunction, (3) there is no adequate remedy at law and (4) he is likely to be successful on the merits of his action. ( Levitt Homes, Inc. v. Old Farm Homeowners' Association (1982), 111 Ill. App. 3d 300, 307, 444 N.E.2d 194). The decision whether to grant preliminary injunction is addressed to the trial court's discretion. ( Levitt, 111 Ill. App. 3d at 307.) A court of review will not reverse the findings of the trial court unless they are against the manifest weight of the evidence. Junkunc v. S.J. Advanced Technology & Manufacturing Corp. (1986), 149 Ill. App. 3d 114, 118, 498 N.E.2d 1179; Booth v. Greber (1977), 48 Ill. App. 3d 213, 217, 363 N.E.2d 6.

Respondent claims that he has a clearly ascertainable right which needs protection because he has a right to proceed with his petition to modify custody in the State of Illinois. Illinois can be the only forum to decide this matter because the Illinois court which issued the decree granting joint custody expressly retained jurisdiction for post decree matters. Petitioner agrees that Illinois does retain jurisdiction.

It is important to note some of the purposes of the UCCJA to:

"1. avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;

2. promote co-operation with the courts of other states to the end that a custody judgment is rendered in that state which can best decide the case in the interest of the child;

3. assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this State decline the exercise of ...

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