In re Marriage of Soman

2021 IL App (1st) 200513-U

• Court: Appellate Court of Illinois
• Decided: February 18, 2021
• Docket: 1-20-0513
• Status: Unpublished

Opinion

2021 IL App (1st) 200513-U

FOURTH DIVISION February 18, 2021

No. 1-20-0513

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 PAMELA SOMAN, ) Circuit Court of ) Cook County Petitioner-Appellee, ) ) and ) ) No. 11 D 6535 ANDREW CWIK, ) ) Respondent-Appellant. ) Honorable ) Robert Johnson, ) Judge Presiding. ) ______________________________________________________________________________

JUSTICE REYES delivered the judgment of the court. Justice Martin concurred in the judgment. Presiding Justice Gordon specially concurred.

ORDER

¶1 Held: Affirming the circuit court’s dismissal of respondent’s petitions to enroll a foreign judgment of dissolution and granting petitioner’s attorney fee petition where the record on appeal is insufficient for review of respondent’s claims.

¶2 In this postdissolution litigation, respondent Andrew Cwik (Andrew), pro se, seeks to

appeal an order of the circuit court of Cook County dismissing his petitions to enroll a foreign

judgment for dissolution of marriage and to modify child support. Andrew also seeks to appeal 1-20-0513

the circuit court’s award of attorney fees to petitioner Pamela Soman (Pamela). For the

following reasons, we affirm.

¶3 BACKGROUND

¶4 The litigation surrounding the dissolution of Andrew and Pamela’s marriage is lengthy

and complex; accordingly, we recite only those facts pertinent to this appeal. Andrew and

Pamela were married in 1996 and divorced in 2009 in Hamilton County, Ohio. On October 30,

2009, the court of common pleas in Hamilton County, Ohio (Ohio court) entered a divorce

decree in case number DR0700706, naming Pamela the “residential parent and legal custodian”

of their two children.

¶5 On January 19, 2010, the Ohio court entered an order granting Pamela’s motion to

relocate to Chicago. The order also provided that if Andrew were to relocate to Chicago, the

parenting time shall remain the same as provided in the divorce decree. Thereafter, in August

2010, Pamela and her two minor children moved to Chicago.

¶6 On October 15, 2010, the Ohio court entered an order in case number DR0700706 as a

result of Andrew’s vexatious litigation in the domestic relations case. The order stated in

relevant part:

“This Court hereby enjoins and prohibits Andrew Cwik from the filing of any further

litigation against *** Pamela Soman, including filing of any petitions for civil protection

orders or motions in the above-captioned divorce case in the Court of Common Pleas,

Division of Domestic Relations and must seek leave of court prior to the filing of any

additional litigation, complaints, petitions or motions during the dates of the Preliminary

Injunction in case number A1006342 [the separate civil proceedings] ***.”

¶7 In June 2011, Pamela filed a motion to modify Andrew’s parenting time in the Ohio

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court. Around this same time, Andrew filed two petitions in the circuit court of Cook County:

(1) a petition to enroll foreign judgment for dissolution of marriage; and (2) a petition to modify

parenting schedule. Andrew’s petition to enroll foreign judgment stated that both parties and the

minor children have resided in Chicago, Illinois, for a period in excess of 90 days. The petition

to modify parenting schedule stated Andrew moved to Chicago in November 2010.

¶8 On July 14, 2011, the Ohio court granted Pamela’s motion to modify Andrew’s parenting

time. The Ohio court’s order stated in relevant part: (1) the court concluded Andrew “remains a

resident of Hamilton County” as all notices of appeal included his Cincinnati address and he did

not file an intent to relocate with the court; (2) the court was not apprised of any ongoing

litigation regarding the reallocation of parental rights and responsibilities of the minor children

of the parties in any other court; (3) the court “retains exclusive continuing jurisdiction over the

issue of reallocation of parental rights and responsibilities of the minor children of the parties

pursuant to Ohio Revised Code Section 3127.16, The Uniform Child Custody Jurisdiction and

Enforcement Act (UCCJEA), and this Court further fully intends to retain and exercise its

continuing jurisdiction within the confines of the law.”

¶9 On August 3, 2011, Pamela filed a motion to dismiss Andrew’s petitions to enroll foreign

judgment of dissolution of marriage and to modify parenting time in the circuit court of Cook

County, pursuant to section 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2–

619 (West 2010)). Pamela’s motion asserted Andrew’s petitions were filed to forum shop and

evade the Ohio courts and argued: (1) the Ohio court had exclusive jurisdiction pursuant to

sections 203 and 206 of the UCCJEA (750 ILCS 36/203, 206 (West 2010)); (2) Andrew

incorrectly relied on section 512(c) of the Illinois Marriage and Dissolution of Marriage Act

(Act) (750 ILCS 5/512(c) (West 2010)); and (3) Andrew failed to attach the complete judgment

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and post-decree documents as required by section 511(c) of the Act (750 ILCS 5/511(c) (West

2010)). Pamela also sought attorney fees and costs from Andrew as part of her prayer for relief.

On August 10, 2011, Andrew filed a response to the motion to dismiss, arguing Illinois had

jurisdiction pursuant to the UCCJEA.

¶ 10 On August 15, 2011, with counsel for both parties present, the circuit court granted

Pamela’s motion with prejudice and denied Andrew’s petitions. The circuit court also granted

Pamela leave to file a petition for attorney fees and costs and removed the matter from the

court’s call. Thereafter, Pamela filed a petition for attorney fees which the circuit court granted

on November 9, 2011.

¶ 11 On December 8, 2011, Andrew filed a motion to vacate, rehear or reconsider the circuit

court’s November 9 order, which the circuit court denied after full briefing and hearing. Andrew

appealed the denial of his petition to enroll a foreign judgment and the grant of Pamela’s petition

for attorney fees. This court affirmed the judgment of the circuit court in its entirety. See Cwik

v. Cwik, 2013 IL App (1st) 121123-U (unpublished order pursuant to Illinois Supreme Court

Rule 23).

¶ 12 Thereafter, in 2015, Andrew filed a second petition to enroll the Ohio divorce decree in

Illinois, which copied the previous petition verbatim. This second petition was dismissed, and

Andrew was again ordered to pay Pamela’s attorney fees. The circuit court’s order of October

28, 2015, provided that in the event Andrew filed further pleadings in the court, the court would

entertain a motion filed by Pamela to deem Andrew a vexatious litigator. Andrew did not appeal

the circuit court’s ruling.

¶ 13 No further pleadings were filed in the circuit court until May 14, 2019, when Andrew

filed his third petition to enroll a foreign judgment. This petition was identical to the two

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previous petitions. Contemporaneously with the third petition, Andrew filed a petition to modify

child support requesting a decrease in his child support obligations based on a reduction in his

income. On May 29, 2019, Andrew filed an amended petition to enroll a foreign judgment,

which added the claim that on December 9, 2015, the Ohio court determined that it no longer

retained exclusive and continuing jurisdiction over the matter.

¶ 14 The December 9, 2015, Ohio court order, which was not included as exhibit to the

petition but was included in the record on appeal, addressed Pamela’s motions for contempt and

to modify parenting time and Andrew’s motion to vacate, dismiss, stay proceedings and change

venue. The Ohio court found that Andrew had provided sufficient proof of his residence in

Chicago and had filed a notice of relocation with the Ohio court. The Ohio court further found

that the circuit court of Cook County had denied his last petition to enroll a foreign judgment

with prejudice. In denying Andrew’s motion to vacate, the Ohio court stated:

“Notwithstanding the fact that now [Andrew] revealed he relocated from Ohio, the

parties continued to litigate in Ohio for several years, and the record shows no evidence

that the courts of any other state manifested intent to exercise jurisdiction over custody

maters related to the minor children. Should that be the case, this court may be called

upon to relinquish jurisdiction which it shall duly consider. Until that time, Ohio

continues to have jurisdiction over the parental rights and responsibilities.”

¶ 15 On May 31, 2019, with both parties before the court (Andrew pro se and Pamela

represented by counsel), the circuit court heard oral argument on Andrew’s petitions. There is,

however, no report of proceedings for this hearing. Without indicating a basis for its ruling, the

circuit court denied both petitions. Subsequently, Andrew filed a motion to reconsider in which

he, for the first time, alleged the circuit court had jurisdiction of the matter under the UCCJEA.

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In his statement of facts, Andrew acknowledged that while his third petition was pending,

Pamela filed a motion for contempt in the Ohio court seeking enforcement of an order entered by

the Ohio court entered March 6, 2017. Andrew attached as exhibits to his motion to reconsider

the Ohio court’s December 9, 2015, order and Pamela’s May 28, 2019, motion for contempt.

After hearing oral argument from the parties, the circuit court denied Andrew’s motion to

reconsider and granted Pamela leave to file a petition for attorney fees.

¶ 16 On September 4, 2019, Pamela filed a petition for attorney fees and costs pursuant to

Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018) and section 508(b) of the Act (750 ILCS

5/508(b) (West 2018)) and to declare Andrew a vexatious litigator. In her statement of facts,

Pamela recounted the four petitions to enroll a foreign judgment Andrew had filed and the

petitions for attorney fees that followed. Pamela also asserted that litigation in Ohio has

continued with the pending domestic relations case having “over 900 entries, approximately 300

of which took place after October 28, 2015.” She further observed that “Andrew has been

involved in 22 separate actions in Hamilton County, Ohio alone” and that the domestic relations

case in Ohio “remains pending for ongoing issues with child support enforcement, contempt, and

attorneys’ fees.” Based on Andrew’s “long and litigious history” along with the circuit court’s

prior indication that it would entertain a motion to find Andrew a vexatious litigator, Pamela

requested the circuit court grant her motion.

¶ 17 In response, Andrew maintained that the circuit court improperly denied his petitions to

enroll a foreign judgment where the parties reside in Illinois and the Ohio court no longer

retained continuing exclusive jurisdiction. According to Andrew, based on these facts, his

petitions were made in good faith and therefore did not warrant the granting of attorney fees in

Pamela’s favor.

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¶ 18 After hearing oral argument from the parties,1 the circuit court granted Pamela’s motion

pursuant to both Rule 137 and section 508(b) of the Act, finding that Andrew’s “recitation of the

Ohio record is in error and without credibility” and that his “conduct in filing the same Petition

to Enroll Foreign Judgment for Dissolution of Marriage a second and third time to be harassing

and needlessly increased the cost of litigation.” The court ordered Andrew to pay Pamela’s

outstanding fees and costs in the amount of $9,677.94 and enjoined Andrew from filing any

further pleadings in this action prior to seeking and obtaining leave of court. This appeal

followed.

¶ 19 ANALYSIS

¶ 20 On appeal, Andrew maintains that the circuit court erred in dismissing his petition where

Illinois had subject matter jurisdiction over the matter under the UCCJEA and the Uniform

Interstate Family Support Act (750 ILCS 22/100 et seq. (West 2018)). Andrew further asserts

that the circuit court improperly granted Pamela’s request for attorney fees where the court

lacked jurisdiction. Lastly, Andrew argues that the circuit court abused its discretion when it

found he filed his petition to harass and for an improper purpose. For the reasons which follow,

we affirm.

¶ 21 Dismissal of Andrew’s Petitions

¶ 22 We find Andrew’s claims regarding the dismissal of his petitions fail as he did not

provide an adequate record on appeal. As is well established, it is incumbent on the appellant to

provide an adequate record from which the reviewing court may evaluate the claims. Foutch v.

O’Bryant, 99 Ill. 2d 389, 391 (1984). If the appellant does not provide an adequate record, the

reviewing court must presume “that the order entered by the trial court was in conformity with

1 There is no report of proceedings in the record transcribing this hearing. -7- 1-20-0513

law and had a sufficient factual basis.” Id. at 392. We are cognizant of appellant’s pro se status,

but this does not excuse him from meeting his burden on appeal. Teton, Tack & Feed, LLC v.

Jimenez, 2016 IL App (1st) 150584, ¶ 19. As noted, the record on appeal lacks a report of

proceedings from May 31, 2019. Without this transcript, or an acceptable substitute such as a

bystander’s report or an agreed statement of facts (see Ill. S. Ct. R. 323(a), (c), (d) (eff. July 1,

2017)), it is impossible for this court to assess Andrew’s claims that the circuit court improperly

dismissed his petition.

¶ 23 Here, Andrew contends that Ohio no longer has continuing exclusive jurisdiction over the

matter relying on the language of the December 2015 order. Pamela, however, maintains that the

Ohio court has continued to exercise jurisdiction over this matter consistently over the past

decade. In her brief, she includes a detailed and extensive litigation history involving Andrew

and the Ohio courts. Indeed, Pamela even states that in rendering its determination to dismiss

Andrew’s petition, the circuit court conferred with the Ohio court and the dismissal was a result

of this conversation. Yet, the parties’ litigation history in the Ohio courts is not thoroughly

documented in the record. The only Ohio court documents presented to the circuit court were

the December 9, 2015, order and Pamela’s May 28, 2019, motion seeking Andrew be held in

contempt for failure to pay child support. More importantly, the circuit court’s communications

with the Ohio court are not included in the record, as there was no report of proceedings,

bystander’s report, or agreed statement of facts filed. Moreover, the record contains no motion

to dismiss, response, or reply which would have aided this court in understanding the issues and

arguments presented. Indeed, this matter was not briefed and only argued before the circuit court

two weeks after Andrew’s first petition was filed. While the record does indicate that the circuit

court rendered its determination after hearing oral arguments from Andrew and Pamela, as

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discussed, those arguments are not sufficiently documented for our review. Consequently, this

court has no knowledge of what evidence was presented, what arguments were made, what

findings the court made, or the reasoning and rationale that provided the bases for the circuit

court’s rulings. See Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 155-56 (2005) (declining

to disturb the circuit court’s judgment when “nothing in the supporting record contains any

factual findings or the basis for the circuit court's decision”). Where there is a lack of a record,

as is the case here, under Foutch we are required to defer to the circuit court’s judgment and

therefore uphold the dismissal of Andrew’s petitions. See Taliani v. Resurreccion, 2018 IL App

(3d) 160327, ¶ 20.

¶ 24 Attorney Fees

¶ 25 Andrew next contends the circuit court lacked jurisdiction to consider Pamela’s attorney

fee petition. Andrew relies primarily upon In re Marriage of Rogers, 141 Ill. App. 3d 561

(1986), which involved the proper application of the Uniform Child Custody Jurisdiction Act

(the predecessor to the UCCJEA). In Rogers, the plaintiff moved from Missouri to Illinois and

subsequently obtained an order, without notice to defendant, to register the parties’ judgment of

dissolution in the circuit court of St. Clair County, Illinois. Id. at 563. Thereafter, the plaintiff

filed a petition for a rule to show cause related to the custody and visitation provision of the

Missouri judgment of dissolution. Id. The court found defendant to be in contempt and ordered

him to serve 30 days in the St. Clair County Jail. The court further ordered him to pay plaintiff,

as her attorney fees, the sum of $900. The same order fixed visitation rights of the plaintiff for

summer vacation, Christmas and Easter holidays, and required defendant to pay a portion of the

expenses associated with visitation, even though a Virginia court had in the meantime entered a

contrary order. Id. at 564. This court reversed, stating that the circuit court exercising

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jurisdiction over the matter was a patent violation of the Uniform Child Custody Jurisdiction

Act. Id. at 564-65.

¶ 26 In this case, however, based on the lack of a record in this case, we must presume that the

circuit court properly determined it lacked jurisdiction. Moreover, unlike Rogers, the court

awarded attorney fees as a sanction against Andrew for improperly bringing the action, not as a

sanction for violating a decree over which the court had no jurisdiction. The circuit court always

has jurisdiction to consider the court’s jurisdiction, even sua sponte. See, e.g., Brandon v.

Bonell, 368 Ill. App. 3d 492, 501-02 (2006). Accordingly, the circuit court also would have

jurisdiction to determine whether the hearings in this case were “precipitated or conducted for

any improper purpose,” including “harassment, unnecessary delay, or other acts needlessly

increasing the cost of litigation.” See 750 ILCS 5/508(b) (West 2018).

¶ 27 Andrew further contends that the circuit court erred in awarding Pamela fees under

section 508(b) of the Act, which provides:

“In every proceeding for the enforcement of an order or judgment when the court finds

that the failure to comply with the order or judgment was without compelling cause or

justification, the court shall order the party against whom the proceeding is brought to

pay promptly the costs and reasonable attorney’s fees of the prevailing party. If non-

compliance is with respect to a discovery order, the non-compliance is presumptively

without compelling cause or justification, and the presumption may only be rebutted by

clear and convincing evidence. If at any time a court finds that a hearing under this Act

was precipitated or conducted for any improper purpose, the court shall allocate fees and

costs of all parties for the hearing to the party or counsel found to have acted improperly.

Improper purposes include, but are not limited to, harassment, unnecessary delay, or

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other acts needlessly increasing the cost of litigation.” 750 ILCS 5/508(b) (West 2018).

We review a circuit court’s decision to award or deny attorney fees for an abuse of discretion. In

re Marriage of Schneider, 214 Ill. 2d 152, 174 (2005). A trial court abuses its discretion when

its ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view

adopted by the trial court. Blum v. Koster, 235 Ill. 2d 21, 36 (2009).

¶ 28 Andrew maintains that the circuit court incorrectly found that he filed the petition to

harass and for an improper purpose. According to Andrew, at the time he filed his petition he,

Pamela, and the children were all residing in Illinois and therefore his petition was filed in good

faith. He further observes that the circuit court never provided a factual basis for its findings of

harassment and improper purpose.

¶ 29 We disagree that the circuit court failed to provide a factual basis for its findings. As

observed by Pamela, the circuit court’s February 13, 2020, order explicitly set forth that Andrew

filed four identical petitions in the circuit court, that Andrew’s recitation of the Ohio litigation

was not credible, and that his actions in filing the same pleading numerous times was harassing

and needlessly increased the cost of litigation.

¶ 30 We further observe that Andrew has provided no record of proceedings or bystander’s

report for the hearing on the petition for fees. As the appellant, Andrew has the burden to

present a sufficiently complete record for our review. See Corral, 217 Ill. 2d at 156. “An issue

relating to a circuit court’s factual findings and basis for its legal conclusions obviously cannot

be reviewed absent a report or record of the proceeding.” Id. “Without an adequate record

preserving the claimed error, the reviewing court must presume the circuit court had a sufficient

factual basis for its holding and that its order conforms with the law.” Id. at 157. “Any doubts

which may arise from the incompleteness of the record will be resolved against the appellant.”

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Id. (quoting Foutch, 99 Ill. 2d at 392). Accordingly, pursuant to Corral, we presume the circuit

court’s ruling was not arbitrary, fanciful, or unreasonable. Id. at 156. Thus, we conclude

Andrew has failed to establish the circuit court abused its discretion in awarding Pamela attorney

fees in this matter.

¶ 31 CONCLUSION

¶ 32 In sum, we conclude the circuit court did not err in dismissing the petitions to enroll

foreign judgment. We also conclude the circuit court had jurisdiction to consider Pamela’s fee

petition and Andrew failed to demonstrate the circuit court abused its discretion in granting the

petition. For all the aforementioned reasons, the judgment of the circuit court of Cook County is

affirmed.

¶ 33 Affirmed.

¶ 34 PRESIDING JUSTICE GORDON, specially concurring:

¶ 35 I agree with the majority decision in this case, but I am troubled by the fact that the

circuit court of Cook County failed to register the Ohio divorce decree. As a result, I must write

separately.

¶ 36 The Illinois Uniform Enforcement of Foreign Judgments Act provides that:

“A copy of any foreign judgment authenticated in accordance with the acts of Congress

or the statutes of this State may be filed in the office of the circuit clerk for any county of

this State. The clerk shall treat the foreign judgment in the same manner as a judgment of

the circuit court for any county of this State. A judgment so filed has the same effect and

is subject to the same procedures, defenses and proceedings for reopening, vacating, or

staying as a judgment of a circuit court for any county of this State and may be enforced

or satisfied in like manner. A judgment filed or registered under this Act shall be

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construed to be an original Illinois judgment from the date it is filed with the clerk of the

circuit court and for purposes of enforcement and revival, shall be treated in exactly the

same manner as an Illinois judgment entered on that same date.” 735 ILCS 5/12-652(a)

(West 2018).

¶ 37 Normally, the registration of a foreign judgment is a perfunctory matter and is

accomplished when the judgment is filed with the clerk of the circuit court of Cook County.

Since we do not have an adequate record before us, we do not know why the trial court’s order

refused the registration of this Ohio decree when it merely had to be filed with the clerk of the

court. It is possible that the decree may not have been authenticated or that the complete decree

was not filed with the clerk of the court. Again, without an appropriate record, we are in the dark

concerning the circuit court’s reasoning concerning its registration. The enforcement or

modification of the Ohio decree in Illinois, once it is properly filed with the clerk of the circuit

court of Cook County, is a different matter. As the majority has concluded, there is not a

sufficient record before us to determine the trial court’s reasons for its decision.

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