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In Re Marriage of Claude F. Ricard

August 10, 2012

IN RE MARRIAGE OF CLAUDE F. RICARD,
PETITIONER-APPELLANT,
AND
DANIELLE M. SAHUT,
RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County No. 09 D 11083 Honorable Thomas J. Kelley, Judge Presiding.

The opinion of the court was delivered by: Justice Palmer

JUSTICE PALMER delivered the judgment of the court, with opinion. Justices Garcia and Lampkin concurred in the judgment and opinion.

OPINION

¶ 1 Petitioner Claude F. Ricard appeals from a trial court order granting the motion of respondent Danielle M. Sahut to dismiss his petition for dissolution of marriage on the grounds of forum non conveniens. We affirm.

¶ 2 BACKGROUND

¶ 3 Claude is a 62-year-old French citizen who was born in Marseille, France. Claude owns properties around the world, including a house in Glencoe and a house in Winnetka, Illinois. He currently resides in the house in Winnetka. Danielle is a 64-year-old French citizen who was born and resides in Lyon, France. The parties met in Brazil in October 2006 and were lawfully married in a civil ceremony in Aix en Provence, France, on June 21, 2008. They were married in a religious ceremony near Tagion, France, on August 19, 2008. This was Claude's third and Danielle's first marriage. No children were born to the parties. Claude has two children from his first marriage and Danielle has none. The parties did not enter into a premarital agreement.

¶ 4 The parties separated in May 2009. Claude filed a petition for divorce in Lyon, France, on June 17, 2009. In the petition, Claude represented that he resided in Aix en Provence, France, and that Danielle resided in Lyon, France. Danielle filed a separate and independent action for spousal support in Lyon, France, on August 7, 2009. Claude's divorce action in France was continued and the matter was set for November 3, 2009. The record is silent on what transpired on that date.

¶ 5 On December 3, 2009, Claude voluntarily dismissed his divorce action in France. On the same date, he filed a two-count "Petition for Declaration of Invalidity of Marriage and Other Relief" in the circuit court of Cook County, Illinois. The petition was filed pursuant to the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 et seq. (West 2008)). Claude alleged in the petition that he was induced into marriage by fraud. He claimed that Danielle lacked the physical capacity to consummate the marriage by sexual intercourse and that at the time the marriage was solemnized, he did not know of the incapacity. See 750 ILCS 5/301(2) (West 2008). Claude sought that the marriage be declared invalid or, in the alternative, that he be granted a divorce from Danielle. Danielle was personally served with summons of Claude's petition in France on January 19, 2010. She filed her appearance in Illinois on February 18, 2010.

¶ 6 On April 16, 2010, Danielle filed a motion to dismiss Claude's petition for lack of jurisdiction and on the grounds of forum non conveniens. Danielle later amended the motion, seeking dismissal of Claude's petition based on lack of subject-matter and personal jurisdiction (count I) and under the doctrine of forum non conveniens (count II). In count II, Danielle argued that France, rather than Illinois, would be a more convenient forum to resolve this litigation.

¶ 7 On May 3, 2010, the court in Lyon, France,, entered a final judgment in Danielle's spousal support action, awarding her €5,000 (about $7,200) per month in support. Claude appealed from that judgment in France. That appeal was pending at the time the trial court entered the order appealed from in this case.

¶ 8 On August 10, 2010, Claude filed a motion for partial summary judgment on Danielle's amended motion to dismiss, arguing that the court had subject-matter jurisdiction to hear the case and personal jurisdiction over Danielle. After hearing argument, the court granted Claude's motion for partial summary judgment, finding that the court had both subject-matter and personal jurisdiction. The court reserved ruling on the issue of forum non conveniens until further briefing by the parties and an evidentiary hearing.

¶ 9 The parties conducted discovery on the issue of forum non conveniens and a six-day evidentiary hearing was held on February 22 through February 25, May 23 and May 26, 2011. On the last date of the hearing, Danielle represented to the court that she had filed a divorce action in Lyon, France, on or about May 18, 2011.

¶ 10 At the hearing, the court heard testimony from Danielle and Claude. Both parties required the services of an interpreter during the hearing.

¶ 11 Danielle testified that she was born and raised in France and, except for limited periods of time, has resided in France her entire life. She currently lives in a two-bedroom residence in Lyon, France, that she inherited from her mother. She has resided there since 1974. Danielle is a French citizen and only has a French passport. She said she does not speak, read or write English. She explained that she relies on an interpreter to communicate with her attorney. Danielle acknowledged that she has corresponded in English via e-mail. She also acknowledged that she was able to translate some legal documents using a translating Web site. Danielle said she spent about €4,000 on translator fees during the proceeding.

¶ 12 Danielle testified that she retired from a nursing career eight months before the parties' marriage. Danielle receives retirement income of €309 a month in addition to her spousal support. She has €12,000 in savings and a life insurance annuity of €40,000. Danielle does not conduct business in the United States of America. She also does not own property or have family in the United States.

¶ 13 Danielle testified that the parties were married in France because they are both French citizens, have friends in France and Claude's two sons were in France. Danielle said that after the June 21, 2008, civil ceremony, Claude moved into her house in Lyon, France. On the same date, the parties applied for a United States permanent resident card (green card) by completing and signing an application for immigrant visa and alien registration. Danielle acknowledged that on the application she listed Claude's Glencoe home as her intended permanent address in the United States. She denied that she intended to live in the United States.

¶ 14 During the parties' seven-month marriage, Danielle visited Illinois with Claude on three occasions: about July 1, 2008, to July 20, 2008; about August 21, 2008, to September 15, 2008; and about October 9, 2008, to November 23, 2008. On each occasion, Claude made the travel arrangements and paid for all travel expenses. Danielle also visited Illinois before the parties' marriage but stayed no longer than six weeks at a time. Aside from traveling to Illinois for this litigation, Danielle has not been in the United States since November 2008.

¶ 15 Danielle received her green card in October 2008. She denied registering as a permanent resident of the United States with the French consulate in Chicago. She also denied listing Claude's Winnetka home as her residence with the French consulate. Danielle was impeached with a certified copy of a "Certificate of Registration on the Registry of French Citizens Located Outside of France and of Residence" that reflected Danielle's permanent residence to be Claude's house in Winnetka. Danielle acknowledged that she has not taken action to cancel or void her green card.

¶ 16 Danielle testified that she intended to call her primary physician and gynecologist as witnesses to rebut Claude's allegations that she was physically unable to consummate the marriage. Both physicians are in Lyon, France. Danielle said she also intended to call Claude's property manager and Claude's two accountants as witnesses. All three witnesses reside in France. Danielle identified a Ms. DuPont as another possible witnesses. Ms. Dupont is an accountant residing in France who evaluated Claude's income in Danielle's spousal support action filed in Lyon, France. Danielle identified about eight other potential witnesses that may need to testify in support of her maintenance claim or against Claude's allegations. All eight witnesses reside in or around Lyon, France. Danielle's counsel stipulated that these witnesses were not included in Danielle's answers to Claude's interrogatories.

¶ 17 Danielle testified that traveling to Chicago for court proceedings would be a hardship for her. She said that she was struck by a car on February 25, 2011, and injured her ankle. She was given emergency care in Chicago and treated in France for three broken bones. The treatment included surgery, insertion of screws and about five months of physical therapy in France. Danielle's treating physicians are in France. Danielle explained that she must keep her leg elevated to prevent swelling and that this posed a problem during her most recent flight to the United States. She acknowledged that she was able to take pain medication before her flight to control the swelling and pain.

¶ 18 Danielle also testified that litigating the case in Chicago would be a financial burden for her. She recounted her finances and the expenses she incurred in litigating this matter. She acknowledged that if the court ordered Claude to pay her travel expenses this burden would be lifted.

ΒΆ 19 Claude testified that he was born, raised and educated in France. He is a French citizen and has only a French passport. He said that he has been married twice before and filed for his second divorce in Cook County. That action was by agreement refiled in France and finalized there. Claude has two children from his first marriage. One child lives in Lyon, France, and the other in Brazil. Claude has a grandchild who lives in Lyon, France. Claude's mother also lives in France. He travels to France to visit his mother one to two times ...


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