Messenger v. Edgar

623 N.E.2d 310, 157 Ill. 2d 162, 191 Ill. Dec. 65, 1993 Ill. LEXIS 71
CourtIllinois Supreme Court
DecidedSeptember 23, 1993
DocketDocket 75132
StatusPublished
Cited by133 cases

This text of 623 N.E.2d 310 (Messenger v. Edgar) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Messenger v. Edgar, 623 N.E.2d 310, 157 Ill. 2d 162, 191 Ill. Dec. 65, 1993 Ill. LEXIS 71 (Ill. 1993).

Opinion

JUSTICE HARRISON

delivered the opinion of the court:

The defendants, Jim Edgar, Governor of the State of Illinois, and Roland Burris, its Attorney General, bring a direct appeal, pursuant to Supreme Court Rule 302(a) (134 Ill. 2d R. 302(a)), from a judgment of the circuit court of Cook County declaring unconstitutional that part of section 501.1 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/501.1 (West 1992)) providing for a “dissolution action stay” that takes effect upon service of a summons and petition filed under the Act and restrains the parties to the action from transferring or otherwise disposing of any property, except under certain circumstances, until a final judgment or further order of the court is entered or the proceeding is dismissed. The circuit court determined that the challenged portion of section 501.1 violates not only the protections of procedural due process guaranteed by the Constitutions of both the United States (U.S. Const., amend. XIV) and the State of Illinois (Ill. Const. 1970, art. I, §2) but also the doctrine of the separation of powers embodied in the constitution of this State (Ill. Const. 1970, art. II, §1).

More specifically, section 501.1 provides in relevant part as follows:

“(a) Upon service of a summons and petition or praecipe filed under the Illinois Marriage and Dissolution of Marriage Act or upon the filing of the respondent’s appearance in the proceeding, whichever first occurs, a dissolution action stay shall be in effect against both parties and their agents and employees, without bond or further notice, until a final judgement is entered, the proceeding is dismissed, or until further order of the court:
(1) restraining both parties from transferring, encumbering, concealing, destroying, spending, damaging, or in any way disposing of any property, without the consent of the other party or an order of the court, except in the usual course of business, for the necessities of life, or for reasonable costs, expenses, and attorney’s fees arising from the proceeding, as well as requiring each party to provide written notice to the other party and his or her attorney of any proposed extraordinary expenditure or transaction^]
* * *
A restraint of the parties’ actions under this Section does not, however, affect the rights of a bona fide purchaser or mortgagee whose interest in real property or whose beneficial interest in real property under an Illinois land trust was acquired before the filing of a lis pen-dens notice under Section 2 — 1901 of the Code of Civil Procedure.
(b) Notice of any proposed extraordinary expenditure or transaction, as required by subsection (a), shall be given as soon as practicable, but not less than 7 days before the proposed date for the carrying out or commencement of the carrying out of the extraordinary expenditure or transaction, except in an emergency, in which event notice shall be given as soon as practicable under the circumstances. If proper notice is given and if the party receiving the notice does not object by filing a petition for injunctive relief under the Code of Civil Procedure within 7 days of receipt of the notice, the carrying out of the proposed extraordinary expenditure or transaction is not a violation of the dissolution action stay. The dissolution action stay shall remain in full force and effect against both parties for 14 days after the date of filing of a petition for injunctive relief by the objecting party (or a shorter period if the court so orders); and no extension beyond that 14 day period shall be granted by the court. For good cause shown, a party may file a petition for a reduction in time with respect to any 7 day notice requirement under this subsection.
(c) A party making any extraordinary expenditure or carrying out any extraordinary transaction after a dissolution action stay is in effect shall account promptly to the court and to the other party for all of those expenditures and transactions. This obligation to account applies throughout the pendency of the proceeding, irrespective of (i) any notice given by any party as to any proposed extraordinary expenditure or transaction, (ii) any filing of an objection and petition under this Section or the absence of any such filing, or (iii) any court ruling as to an issue presented to it by either party.
(d) If the party making an extraordinary expenditure or transaction fails to provide proper notice or if despite proper notice the other party filed a petition and prevailed on that petition, and the extraordinary expenditure or transaction results in a loss of income or reduction in the amount or in the value of property, there is a presumption of dissipation of property, equal to the amount of the loss or reduction, charged against the party for purposes of property distribution under Section 503.
(e) In a proceeding filed under this Act, the summons shall provide notice of the entry of the automatic dissolution action stay in a form as required by applicable rules.” (750 ILCS 5/501.1 (West 1992).)

Section 501.1 became effective January 1, 1993. On January 20, 1993, Supreme Court Rule 101 was amended, and made effective immediately, to provide in subpart (e) that

“[i]n all proceedings under the Illinois Marriage and Dissolution of Marriage Act, the summons shall include a notice on its reverse side referring to a dissolution action stay being in effect on service of summons, as well as setting forth, verbatim, the text of section 501.1(a) of such Act, through subprovision (3) thereof, and shall state that any person who fails to obey a dissolution action stay may be subject to punishment for contempt.” 145 Ill. 2d R. 101(e).

On January 4, 1993, the plaintiff, Carrie Messenger, filed suit for dissolution of marriage and brought a separate action for declaratory judgment, as well as for other relief, alleging the unconstitutionality of the provisions of section 501.1 set forth above because, among other reasons, they deprive her of her property without due process of law and because it is the province of the courts, and not the legislature, to grant injunctions. Following a hearing the circuit court expressly found the challenged portion of section 501.1 unconstitutional and void, describing it as “a form of legislative recognition of a doctrine of equitable attachment which has as its purpose the sequestration of property pending some future relief, either real or imagined.” The court held as well that the statute violates the doctrine of the separation of powers. The court denied the other relief plaintiff sought together with the defendants’ oral motion to stay its order and ruled the unchallenged portions of section 501.1 severable and still in effect, those being sections 501.1(a)(2) and (a)(3), which restrain the parties from, respectively, physically abusing one another or a minor child of either of them and removing or concealing such a child.

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Cite This Page — Counsel Stack

Bluebook (online)
623 N.E.2d 310, 157 Ill. 2d 162, 191 Ill. Dec. 65, 1993 Ill. LEXIS 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/messenger-v-edgar-ill-1993.