In re Marriage of Basil

2021 IL App (1st) 200258-U

• Court: Appellate Court of Illinois
• Decided: June 17, 2021
• Docket: 1-20-0258
• Status: Unpublished

Opinion

2021 IL App (1st) 200258-U No. 1-20-0258 Order filed June 17, 2021

Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

IN RE MARRIAGE OF ) Appeal from the ORTAL BASIL, ) Circuit Court of ) Cook County. Petitioner-Appellee, ) ) v. ) 16 D 11468 ) ROIE BASIL, ) ) Honorable Respondent-Appellant, ) Myron F. Mackoff, ) Judge Presiding.

JUSTICE MARTIN delivered the judgment of the court. Justices Lampkin and Reyes concurred in the judgment.

ORDER

¶1 Held: The circuit court’s exercise of personal jurisdiction over respondent-appellant Roie Basil was proper where the court did not err in denying his motion to quash service of summons.

¶2 This appeal concerns a post-decree dissolution of marriage action between

petitioner-appellee Ortal Basil and her former husband, respondent-appellant Roie Basil.

Respondent contends on appeal that the circuit court erred in denying his motion to quash service

of process and that the circuit court improperly allowed a witness to be questioned concerning his No. 1-20-0258

knowledge of the pending litigation.

¶3 In this appeal, respondent argues that: (1) the summons issued and served on him with the

petition for dissolution of marriage was improper as it was the same summons used to serve him

with an order of protection under section 210(a) of the Illinois Domestic Violence Act of 1986

(750 ILCS 60/210(a) (West 2014)); (2) the summons was “stale” and ineffective to provide the

circuit court with personal jurisdiction because it was placed with the special process server 21

days after the original issue date; (3) the special process server’s testimony at the hearing on the

motion to quash service was conflicting and lacked credibility; and (4) the circuit court erred

during the hearing on the motion to quash service by allowing petitioner’s attorney to question

respondent about his alleged knowledge of the pendency of the underlying dissolution action. For

the reasons that follow, we affirm the judgment of the circuit court. 1

¶4 Initially, we note that petitioner-appellee did not file a brief with this court. However, the

respondent’s brief, along with the common law record, are sufficient to resolve the merits of this

appeal without aid of the petitioner’s brief. See First Capital Mortgage Corp. v. Talandis

Construction Corp., 63 Ill. 2d 128, 131-33 (1976).

¶5 I. BACKGROUND

¶6 The following background facts and procedural history are taken from the common law

record and respondent’s brief. Ortal and Roie Basil were married in Kfar Sava, Israel on August

20, 2009. Three children were born to the marriage: Eden, Tamar, and Daniel. Although both are

citizens of Israel, at some point prior to their marriage the couple moved to the United States and,

after residing in Green Bay, Wisconsin for a few years, finally settled in the Chicago area.

1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon entry of a separate written order.

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¶7 In 2016, respondent and petitioner appeared before a Beth Din Rabbinical Court of Justice

where the parties’ marriage was “dissolved” according to Jewish custom by obtaining a “Get.” 2

When questioned at a hearing before the circuit court, Ortal explained: “I got married in Israel in

Jewish way. So I need to divorce in Jewish way.” Petitioner subsequently initiated the underlying

action on December 14, 2016, by filing a summons and petition for dissolution of marriage in the

circuit court of Cook County alleging irreconcilable differences. The summons and petition were

placed for service with the Sheriff of Cook County.

¶8 The sheriff’s affidavit of service showed that he attempted to serve respondent at an address

on Howard Street in Chicago, Illinois, on January 5, 2017, at 4:00 p.m. The attempted service was

unsuccessful due to “no contact.” The sheriff again attempted to serve respondent at the same

address on January 17, 2017, at 2:35 p.m. This time, the attempted service was unsuccessful due

to “not listed.”

¶9 On January 18, 2017, petitioner filed an ex-parte emergency petition for an order of

protection requesting in part that the court: (1) grant her exclusive possession of the martial

residence for the remainder of the pending proceedings; (2) deny respondent further parenting time

until further order of court; and (3) prohibit respondent from transferring or otherwise disposing

of any martial assets. Within petitioner’s supporting affidavit and exhibits, she averred, among

other things, that respondent—who vacated the marital residence—had threatened her and

threatened to take their children to New York without her consent. Petitioner further averred that

respondent had broken into her garage, withdrawn large sums of money from their business

checking account, and purchased a 2007 Bentley Coupe and Rolex watch.

2 “Get” is a Jewish divorce decree a husband is required to give his wife in order to effectuate a divorce in accordance with the parties’ Jewish faith. See In re Matter of Rokeach, 142 N.Y.S.3d 420, 421 (2d Dep’t 2021). In Jewish culture the Beth Din is empowered to adjudicate cases involving religious law. Matter of Meisels v. Uhr, 79 N.Y.2d 526, 531-32 (1992). 3 No. 1-20-0258

¶ 10 On January 19, 2017, the circuit court issued an emergency order of protection on behalf

of petitioner and the parties’ children. A summons was also issued on the same date. The

emergency order of protection was to remain in effect until February 9, 2017.

¶ 11 The sheriff’s affidavit of service indicates that the sheriff again attempted personal service

on respondent. In addition to the petition for dissolution, the sheriff attempted to serve the

emergency order of protection. All attempts at service were unsuccessful due to “no contact.”

¶ 12 On February 9, 2017, the circuit court granted the petitioner’s motion to appoint Roni Arusi

as special process server and for the issuance of an alias summons. The circuit court also issued a

disposition order extending the emergency order of protection to the next hearing date, March 2,

2017.

¶ 13 On March 1, 2017, Arusi filed an affidavit attesting that on February 18, 2017, at 10:10

a.m., he personally served respondent with a summons, petition for dissolution of marriage,

emergency order of protection, petition for emergency order of protection, and the disposition

order extending the emergency order of protection. Arusi attested that he served respondent at their

mutual synagogue, Ohel Shalom, in Chicago, Illinois. A copy of Arusi’s affidavit was mailed to

respondent that same date by certified mail.

¶ 14 On March 24, 2017, the circuit court, after finding that respondent had failed to answer or

appear, entered a default judgment of dissolution of marriage along with a uniform order of child

support.

¶ 15 Approximately one year later, on March 9, 2018, petitioner filed a petition for adjudication

of indirect civil contempt against respondent based on his failure to pay court-ordered child

support. On March 27, 2018, the circuit court issued a rule to show cause why respondent should

not be held in indirect civil contempt of court for his failure to pay child support. The rule to show

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cause was returnable on May 17, 2018, and respondent was ordered to appear for hearing on the

rule.

¶ 16 Respondent failed to appear for the hearing and the court entered an order finding him in

indirect civil contempt. However, the court stayed enforcement of the order and ordered

respondent to appear the following week.

¶ 17 Respondent again failed to appear on May 24, 2018, though the notice requiring him to do

so was sent to him by registered mail, email, and text message. The circuit court issued a body

attachment 3 and set the child-support purge at $15,000. Over the course of the next 12 months,

the sheriff made several unsuccessful attempts to personally serve respondent with the body

attachment at the Howard Street address.

¶ 18 On July 31, 2019, approximately two and half years after entry of the judgment of

dissolution of marriage and uniform order of child support, respondent filed his motion to quash

service of process. In his motion to quash, respondent argued that the special process server’s

affidavit was defective as it failed to contain the complete date it was served. Respondent also

argued that the special process server was not a disinterested party because he was married to the

petitioner’s sister. The motion also referenced an affidavit from respondent attesting that he was

never served with any of the documents listed in the special process server’s affidavit.

¶ 19 On January 13, 2020, following briefing and a hearing, the circuit court denied

respondent’s motion to quash service. Respondent now appeals that ruling.

¶ 20 II. ANALYSIS

¶ 21 A. Standards of Review

3 An attachment order shall direct the Sheriff of any county in Illinois to take a person into custody to either (1) appear before the court that issued the attachment, or (2) post a bond equal to the amount ordered by the court. See 750 ILCS 5/713(a), (b) (West 2016). 5 No. 1-20-0258

¶ 22 When the circuit court conducts an evidentiary hearing on the issue of personal jurisdiction

and makes factual findings, we review its relevant factual findings under the manifest weight of

the evidence standard. Madison Miracle Productions LLC v. MGM Distribution Co., 2012 IL App

(1st) 112334, ¶ 39. However, whether the circuit court obtained personal jurisdiction over a party

is a question of law that is reviewed de novo. BAC Home Loans Servicing, LP v. Mitchell, 2014 IL

116311, ¶ 17.

¶ 23 In this appeal, respondent argues that the circuit court erred in denying his motion to quash

service of process. Respondent’s arguments require this court to construe and apply sections of the

Illinois Marriage and Dissolution Act (Dissolution Act) (750 ILCS 5/101 et seq. (West 2012)),

Illinois Domestic Violence Act of 1986 (Domestic Violence Act) (750 ILCS 60/101 et seq. (West

2014)), and the Illinois Code of Civil Procedure (Code) (735 ILCS 5/101 et seq. (West 2014)).

¶ 24 Issues of statutory construction are questions of law, which we review de novo. Krautsack

v. Anderson, 223 Ill. 2d 541, 553 (2006). The primary rule of statutory construction is to ascertain

and give effect to the intent of the legislature. Gaffney v. Board of Trustees of the Orland Fire

Protection District, 2012 IL 110012, ¶ 56. The most reliable indicator of this intent is the language

of the statute itself, which must be given its plain and ordinary meaning. Gaffney, 2012 IL 110012,

¶ 56; Krautsack, 223 Ill. 2d at 553. In determining the intent of the legislature, the court may

consider not only the language of the statute, but also the reason and necessity for the law, the evils

sought to be remedied, and the purpose to be achieved. In re Detention of Liberman, 201 Ill. 2d

300, 308 (2002).

¶ 25 1. Form of the Summons

¶ 26 Respondent contends that the default judgment is void for lack of personal jurisdiction as

the summons used to serve him with the petition for dissolution of marriage was improper in that

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it was originally issued to serve him with an order of protection under the Domestic Violence Act,

which requires a separate summons be served. In support of this contention, respondent relies on

language in section 210(a) of the Domestic Violence Act which provides that: “Any action for an

order of protection, whether commenced alone or in conjunction with another proceeding, is a

distinct cause of action and requires that a separate summons be issued and served[.]” 750 ILCS

60/210(a) (West 2014). Respondent asserts that he “was never served with a Summons which had

been properly issued so as to serve the Petition of Dissolution of Marriage, as the Summons

purportedly used had been issued to serve the Order of Protection.”

¶ 27 “The purpose of a summons is to ‘notify a party that an action has been commenced against

him.’ ” MI Management, LLC v. Proteus Holdings, LLC, 2018 IL App (1st) 160972, ¶ 39 (quoting

In re Application of the County Treasurer & Ex Officio County Collector, 307 Ill. App. 3d 350,

355 (1999)). Illinois Supreme Court Rule 101 (eff. July 17, 2020) provides instruction regarding

the form of the summons.4 See Lisle Savings Bank v. Tripp, 2021 IL App (2d) 200019, ¶ 12. At

the time respondent was served with the subject summonses, subsection (a) of Rule 101 provided

in relevant part:

“The summons shall be issued under the seal of the court, tested in the name of the

clerk, and signed with his name. It shall be dated on the date it is issued, shall be

directed to each defendant, and shall bear the address and telephone number of the

plaintiff or his attorney ***.” 166 Ill.2d R. 101(a).

Moreover, subsection (g) of the rule provided that: “The use of the wrong form of summons shall

not affect the jurisdiction of the court.” 166 Ill.2d R. 101(g).

¶ 28 “In determining whether a summons was sufficient to provide the opposing party with

4 Illinois Supreme Court Rule 101 was amended in 2018 to require electronic filing of documents in civil cases with limited exceptions. 7 No. 1-20-0258

notice of the action ‘we adhere to the principle that a court should not elevate form over substance,

but should construe a summons liberally.’ ” MI Management, LLC, 2018 IL App (1st) 160972, ¶ 39

(quoting In re Application of the County Treasurer, 307 Ill. App. 3d at 355). Accordingly, our

courts have emphasized that in determining whether alleged technical defects or irregularities in

the form of a summons are so severe as to preclude the court from obtaining personal jurisdiction

over a party, substance must be placed over form, and the court must assess whether the summons

adequately notified the party that an action had been commenced against him or her. See

Bankunited, National Association v. Giusti, 2020 IL App (2d) 190522, ¶ 30; MI Management,

LLC, 2018 IL App (1st) 160972, ¶ 39.

¶ 29 A review of the summonses issued in this matter reveal they were sufficient in form and

content to comply with the provisions of Rule 101 in that they accomplished their intended purpose

of notifying respondent that petitioner had commenced an action for dissolution of marriage in the

circuit court of Cook County and that she had obtained an ex parte order of protection against him.

¶ 30 In this case, respondent offers no explanation as to how any of the alleged defects or

irregularities in the form of the summonses he was served frustrated his ability to understand that

petitioner had commenced an action for dissolution of marriage in the circuit court of Cook County

and that she had obtained an ex parte order of protection. Therefore, we find that the alleged defects

or irregularities in the form of the summonses did not preclude the circuit court from obtaining

personal jurisdiction. See, e.g., Bankunited, National Association, 2020 IL App (2d) 190522, ¶ 30

(defects in summons were not so severe as to preclude circuit court of personal jurisdiction as they

did not frustrate mortgagor’s ability to understand that a foreclosure proceeding had been

commenced against him); Ocwen Loan Servicing v. Degomez, 2020 IL App (2d) 190774, ¶ 21

(same); MI Management, LLC, 2018 IL App (1st) 160972, ¶ 55 (technical deficiencies in summons

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did not deprive circuit court of personal jurisdiction as they did not frustrate appellee’s ability to

understand that garnishment proceedings had been commenced against it). In light of this

precedent, if this court were to accept respondent’s arguments the result would promote form over

substance and frustrate the purpose that service of process is designed to accomplish, which is to

notify a party that an action has been commenced against him or her and afford adequate time and

opportunity to appear and defend the action.

¶ 31 Respondent next contends that the summons served by the special process server was

“stale” as it was served after expiration of the time for service of the summons and was therefore

ineffective to establish personal jurisdiction. Supreme Court Rule 102(b) provides that a summons

must be served no later than 30 days after its date. Ill. S. Ct. R. 102(b) (eff. July 1, 1971).

Respondent maintains that the special process server claimed he effected service on February 18,

2017, which was 30 days from issuance of the January 19, 2017, summons designated to serve the

order of protection. Respondent argues that as a result, petitioner failed to serve the summons

within the thirty-day window.

¶ 32 As the circuit court properly found, respondent waived this argument by failing to raise it

in his motion to quash service. It is well settled that arguments not raised in the circuit court are

deemed waived and may not be raised for the first time on appeal. Haudrich v. Howmedica, Inc.,

169 Ill. 2d 525, 536 (1996). It is also well settled that unlike subject-matter jurisdictional

objections, which cannot be waived and may be raised at any time, objections to personal

jurisdiction and improper service may be waived. People v. Matthews, 2016 IL 118114, ¶¶ 18-19.

¶ 33 In an effort to avoid application of the waiver rule during the hearing on the motion to

quash service, respondent’s counsel argued that even though he never raised the issue of the stale

summons in his motion, he was “raising it now.” Counsel maintained that the issue was “part of

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the record” and that the court could not ignore the issue “whether it’s raised or not.” The circuit

court judge responded in part that it was not his job to search through the record to see “when the

summons was issued.”

¶ 34 This court could not agree more with the circuit court judge’s insightful comments. Courts

are not expected to search through the record in order to develop argument for a party. New v. Pace

Suburban Bus Service, 398 Ill. App. 3d 371, 384 (2010). “Trial courts are not the research

assistants of the litigants; the parties have a duty to fully present their legal arguments to the court

for its resolution of their dispute.” Walters v. Nadell, 481 Mich. 377, 388, 751 N.W.2d 431, 437

(2008).

¶ 35 Finally, respondent contends that the special process server’s testimony at the hearing on

the motion to quash service was conflicting and lacked credibility. Respondent also argues that the

circuit court erred during the hearing on the motion by allowing petitioner’s attorney to

cross-examine respondent about his alleged knowledge of the pendency of the underlying

dissolution action. These arguments essentially involve challenges to the circuit court’s credibility

determinations made at the evidentiary hearing. The cross-examination of respondent was proper

in order to permit the circuit court to assess his credibility regarding his awareness of the

underlying dissolution action, his awareness that the deputy sheriff was attempting to serve him,

and whether he was deliberately avoiding service.

¶ 36 These issues of credibility and any inconsistencies in the evidence were properly before

the circuit court as the trier of fact. As a reviewing court, we cannot substitute our judgment for

that of the circuit court which heard the witnesses and assessed their credibility. In re V.Z., 287 Ill.

App. 3d 552, 565 (1997). In light of the evidence presented at the evidentiary hearing and, given

the fact that a party’s uncorroborated testimony that he or she was never served is insufficient to

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overcome the presumption of service (Charles Austin, LTD v. A-1 Food Services, Inc., 2014 IL

App (1st) 132384, ¶ 16), we cannot find that the circuit court erred in denying respondent’s motion

to quash service.

¶ 37 III. CONCLUSION

¶ 38 We conclude that the circuit court obtained personal jurisdiction over respondent through

valid service of process. Accordingly, the circuit court’s denial of respondent’s motion to quash

service of process was appropriate and is affirmed.

¶ 39 Affirmed.