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Zaabel v. Konetski

March 11, 2004

JOHN "JERRY" ZAABEL, PETITIONER,
v.
THE HON. JAMES J. KONETSKI, ASSOCIATE JUDGE OF THE 18TH JUDICIAL CIRCUIT, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Justice Garman

PUBLISHED

Docket No. 96581-Agenda 13-January 2004.

This is an original action for a writ of prohibition. Petitioner asks this court to issue the writ to prevent respondent Judge James J. Konetski from taking any further action on a "Petition for Civil Contempt and Sanctions" filed by respondent Doris L. Kunz in the circuit court of Du Page County. For reasons that follow, the writ is denied.

BACKGROUND

The following undisputed facts are drawn from the pleadings submitted by the parties. The marriage of John "Jerry" Zaabel and Doris L. Zaabel, now known as Doris L. Kunz, was dissolved by a judgment entered in the circuit court of Du Page County on December 8, 1986. Two children were born to the marriage: Robert W. Zaabel was born in 1980, and Jeremy S. Zaabel was born in 1984. A written settlement agreement, dated November 26, 1986, was incorporated into the judgment of dissolution. Under the settlement agreement, Doris retained custody of the children. The settlement agreement also provided, inter alia, for Jerry to pay certain "extraordinary" medical expenses incurred by the children, and that "[e]ach party shall pay for the trade school or college and professional education expenses of the children." Some time after the divorce, Doris moved to Iowa with the children, where they currently reside. Jerry moved to Arizona, where he currently resides.

On July 23, 2001, the circuit court of Du Page County entered an agreed order whereby Jerry was ordered to pay (1) $7,000 for medical expenses of the children pursuant to the judgment of dissolution and (2) $750 per semester to Robert, based upon Robert's being a full-time student enrolled at an accredited college during the 2001-02 school year. Jerry does not deny he signed the agreed order.

On February 4, 2003, Doris filed a "Petition for Indirect Civil Contempt of Court and Other Relief" in the circuit court of Du Page County. Count I of Doris' petition asks the court, inter alia, to order Jerry to pay past due extraordinary medical expenses. Count II asks the court to order a division of expenses for each year of post high school education for both children. Count III asks for the court to order Jerry to confirm that he maintains insurance on his life, and count IV asks for attorney fees. Jerry moved the circuit court to dismiss Doris' petition on the ground that the court lacked both subject matter and personal jurisdiction. After his motion was denied by the circuit court, Jerry filed a motion for leave to file a complaint for writ of prohibition in this court, which we allowed. See 188 Ill. 2d R. 381.

In this action, Jerry does not claim the circuit court lacks personal jurisdiction. His sole claim is that a writ of prohibition should issue because the circuit court lacks subject matter jurisdiction over Doris' petition.

ANALYSIS

As a preliminary matter, we consider a motion filed by Doris, which was taken with the case. Doris requests that we dismiss the complaint for writ of prohibition because Jerry failed to comply with Rule 323 by filing a record on appeal. See 166 Ill. 2d R. 323. This is not an appeal; it is an original action for a writ of prohibition pursuant to Rule 381. See 188 Ill. 2d R. 381. Under Rule 381, "[o]nly issues of law will be considered. The proposed complaint *** shall contain or have attached to it the lower court records or other pertinent material that will fully present the issues of law." 188 Ill. 2d R. 381(a). The pleadings and attached materials fully present the issue of law in this case. The motion to dismiss is denied.

Doris also requests, in the alternative, that we strike Jerry's reply brief because it fails to cite authority. Jerry's reply brief cites statutes and one judicial opinion that were cited and discussed in Doris' brief. Argument limited to points raised in the respondent's brief is appropriate in a reply brief. 188 Ill. 2d R. 341(g). The motion to strike is denied.

We now turn to Jerry's complaint. For a writ of prohibition to issue, the following four requirements must be met: (1) the action to be prohibited must be judicial or quasi-judicial in nature; (2) the jurisdiction of the tribunal against which the writ issues must be inferior to that of the issuing court; (3) the action to be prohibited must be outside the tribunal's jurisdiction or, if within its jurisdiction, beyond its legitimate authority; (4) the petitioner must be without any other adequate remedy. Orenic v. Illinois State Labor Relations Board, 127 Ill. 2d 453, 468 (1989). Original actions for a writ of prohibition may not be used to circumvent the normal appellate process. People ex rel. Foreman v. Nash, 118 Ill. 2d 90, 97 (1987).

Jerry has not attempted to explain why the normal appellate process would not afford an adequate remedy. It is not obvious Jerry would be irremediably harmed if he were required to press his claim that the circuit court lacks subject matter jurisdiction within the normal appellate process. We conclude that Jerry has not met the burden he bears, as petitioner, of demonstrating that the fourth requirement for a writ of prohibition is met. Nevertheless, we may choose to address the merits of Jerry's complaint. See Moore v. Strayhorn, 114 Ill. 2d 538, 540 (1986). We do so in this case because we consider it important to the administration of justice to provide guidance regarding the issue Jerry raises. Cf. Foreman, 118 Ill. 2d at 98 (refusing to address the merits because the questions presented are not important to the administration of justice).

Jerry argues that section 205 of the Uniform Interstate Family Support Act (the Act) deprives the circuit court of subject matter jurisdiction. See 750 ILCS 22/205 (West 2002). ...


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