In re Marriage of Kelso

527 N.E.2d 990, 173 Ill. App. 3d 746, 123 Ill. Dec. 352, 1988 Ill. App. LEXIS 1189
CourtAppellate Court of Illinois
DecidedAugust 5, 1988
DocketNo. 88—1099
StatusPublished
Cited by17 cases

This text of 527 N.E.2d 990 (In re Marriage of Kelso) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Marriage of Kelso, 527 N.E.2d 990, 173 Ill. App. 3d 746, 123 Ill. Dec. 352, 1988 Ill. App. LEXIS 1189 (Ill. Ct. App. 1988).

Opinion

JUSTICE SULLIVAN

delivered the opinion of the court:

Petitioner appeals from an order granting respondent’s motion to quash service of process in a dissolution of marriage action. Petitioner contends that the circuit court erred in ruling that it lacked personal jurisdiction over respondent. For the reasons hereinafter set forth, we reverse the order quashing service of process and remand the cause to the circuit court for further proceedings.

On December 30, 1987, petitioner, Thomas R. Kelso, a resident of Illinois, filed an action in the circuit court of Cook County for dissolution of his marriage to respondent, Tañe L. Kelso, who is presently a resident of Hawaii. Respondent was served with summons and a copy of the petition for dissolution in Honolulu, Hawaii, on January 8, 1988. On January 27, 1988, after being served with process in the Illinois action, respondent filed for divorce in the family court of the State of Hawaii. Thereafter, on February 10, 1988, respondent, through her counsel, filed a special and limited appearance in this action. On February 18, 1988, respondent’s counsel mailed a notice of motion to petitioner’s counsel indicating that on February 23, 1988, he would appear before Judge Knell and present his motion to transfer the dissolution of marriage action from the circuit court of Cook County, Illinois, to the family court of the State of Hawaii, on the grounds of forum non conveniens. Petitioner filed his response to the motion on February 22, 1988.

Although there is no report of proceedings for February 23, 1988, we note that on April 15, 1988, Judge Knell allowed petitioner’s motion to amend the record on appeal to include a copy of an order that he entered on February 23, 1988, in this matter. That order, which was drafted by respondent’s counsel and was signed by Judge Knell, states:

“This cause coming on to be heard on respondent’s motion for transfer, due notice having been given and the court being advised in the premises, it is hereby ordered that respondent is granted to March 22, 1988, to reply to petitioner’s response and that this cause be and is hereby set for hearing before the ‘Hon. Judge’ Knell without further notice.”

In his order of April 15, 1988, allowing the record to be supplemented with this order, Judge Knell recited the following facts: that the document was a true and correct copy of the original; that the original document had been stricken from the court file and torn into four approximately equal pieces; that the signature of the judge was stricken from the order; and that the original document was subsequently taped together so as to restore it as much as possible to its original form. A copy of the original document was then made, and the original document was subsequently lost from the file. The April 15, 1988, order noted that counsel for both parties agreed to the wording thereof.

Respondent did not object to petitioner’s motion to amend the record to include the February 23, 1988, order or his motion to file the order as a supplemental record with this court.

Petitioner filed an emergency petition on February 23, 1988, for a temporary restraining order to bar respondent and her agents from making any court appearances, effecting service of process, filing further pleadings or motions or otherwise attempting to pursue the Hawaii divorce action. The motion was noticed for a hearing on March 1, 1988.

On that date, respondent presented a motion to quash service of process for lack of personal jurisdiction. In this motion, she alleged that she is a citizen of the State of Hawaii, that she has never lived in Illinois, that she never had a matrimonial domicile in this State, that no marital acts occurred here and that she has done nothing to subject herself to the jurisdiction of our courts. After the motion was briefed and argued, Judge Knell, on March 14, 1988, granted respondent’s motion to quash service of process for lack of personal jurisdiction, and, for that reason, denied petitioner’s request for injunctive relief. This appeal followed.

Opinion

Respondent has filed two motions to dismiss this appeal and one motion to strike certain references in petitioner’s brief to matters outside of the record. Those motions were taken with the case and are now denied.

The first motion to dismiss was based on respondent’s argument that under Supreme Court Rule 307(a)(l) (107 Ill. 2d R. 307(a)(l)), the order entered on March 14, 1988, was not appealable. We disagree. An order denying a request for a temporary restraining order is an interlocutory order made immediately appealable as a matter of right by Rule 307(a)(1). Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177, 303 N.E.2d 1.

We note further that an order granting a motion to quash service of process is a final and appealable order under Supreme Court Rules 301 and 303. (107 Ill. 2d Rules 301, 303(a)(1). See Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569, 573-78, 50 N.E.2d 836; Schiffman v. Bowman (1980), 88 Ill. App. 3d 766, 768, 411 N.E.2d 71.) Although the notice of appeal in this case was captioned “Notice of Interlocutory Appeal,” the notice of appeal is to be liberally construed, and defects in form will not deprive the reviewing court of jurisdiction. McMahon v. McMahon (1981), 97 Ill. App. 3d 448, 450, 422 N.E.2d 1150.

In Statistical Tabulating Corp. v. Hauck (1972), 5 Ill. App. 3d 50, 282 N.E.2d 524, the court held that an interlocutory appeal taken from an order granting a permanent injunction would be treated as an appeal from a final judgment or order. Even assuming, therefore, that respondent is correct in asserting that the March 14, 1988, order was appealable only as a final order and not as an interlocutory order, the notice of appeal filed in this case was sufficient to confer jurisdiction upon this court. The notice informed respondent that petitioner sought review of the order quashing service of process for lack of personal jurisdiction.

Respondent’s second motion to dismiss was based on mootness. In response to this court’s order, the parties have advised us that petitioner was served with process in respondent’s Hawaii divorce action on May 19, 1988. Although this renders moot that portion of petitioner’s prayer for relief which sought to restrain respondent from serving him with process in that action, it does not render moot the remainder of the prayer for relief nor does it affect the appealability of the order quashing service of process.

With respect to respondent’s pending motion to strike certain references in petitioner’s brief to matters outside of the record, we note that in the determination of this appeal we have not considered matters not properly of record.

Addressing the merits of the appeal we observe that section 2 — 301(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 301(a)) provides in pertinent part:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

NorthBrook Bank and Trust Company v. 300 Level, Inc.
2015 IL App (1st) 142288 (Appellate Court of Illinois, 2015)
In re Marriage of Ricard
2012 IL App (1st) 111757 (Appellate Court of Illinois, 2012)
Sarkissian v. Chicago Board of Education
Illinois Supreme Court, 2001
Rapier v. First Bank and Trust Co.
721 N.E.2d 686 (Appellate Court of Illinois, 1999)
Lops v. Lops
140 F.3d 927 (Eleventh Circuit, 1998)
Cavanaugh v. Lansing Municipal Airport
681 N.E.2d 39 (Appellate Court of Illinois, 1997)
In Re Marriage of Buchanio
635 N.E.2d 980 (Appellate Court of Illinois, 1994)
In Re Marriage of Clark
597 N.E.2d 240 (Appellate Court of Illinois, 1992)
Burnhope v. National Mortgage Equity Corp.
567 N.E.2d 356 (Appellate Court of Illinois, 1990)
DiNardo v. Lamela
539 N.E.2d 1306 (Appellate Court of Illinois, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
527 N.E.2d 990, 173 Ill. App. 3d 746, 123 Ill. Dec. 352, 1988 Ill. App. LEXIS 1189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-kelso-illappct-1988.