In re: Marriage of Seffren

THIRD DIVISION
JUNE 21, 2006
1-04-3775
In re MARRIAGE OF COLLEEN P. SEFFREN, ) Appeal from the
n/k/a Colleen P. Foley, ) Circuit Court of
) Cook County.
Petitioner-Appellee, )
)
and )
) No. 96 D 18482
RANDAL SEFFREN, )
)
Respondent-Appellee )
)
(Keane Taylor, ) Honorable
) Barbara A. Riley,
Third-Party Respondent-Appellant). ) Judge Presiding.
JUSTICE ERICKSON delivered the opinion of the court:
The marriage between petitioner Colleen Seffren, now known as Colleen Foley, and
respondent Randal Seffren was dissolved in 1997. Respondent thereafter filed several
postdecree motions in which he sought to suspend petitioner's visits with the parties'
children, to add petitioner's live-in boyfriend, Keane Taylor, as a third-party respondent, and
to enjoin Taylor from having any contact with the parties' children or from residing in
petitioner's home. The circuit court granted respondent's motion to add Taylor as a third
party and entered a permanent injunction. On appeal, Taylor argues: (1) the circuit court
lacked jurisdiction to add him as a third-party respondent; (2) Cook County was not the
proper venue; (3) the circuit court lacked authority to enter a permanent injunction without
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holding an evidentiary hearing; and (4) the circuit court erred in denying his motion to
reconsider.
BACKGROUND
On December 29, 1997, the circuit court of Cook County entered a judgment
dissolving the marriage between petitioner and respondent. Incorporated into that
judgment was a joint parenting agreement establishing that the parties' two children, a
daughter born in 1991 and a son born in 1993, would reside with each parent on alternating
weeks (the alternating weekly parenting schedule).
Petitioner began dating Taylor around the time of dissolution, and at some point,
Taylor moved into petitioner's home located in Deerfield, Lake County. Taylor and
petitioner are not married and it is not disputed that Taylor has no interest in petitioner's
home.
On May 25, 2004, respondent filed in the circuit court of Cook County an emergency
petition to suspend petitioner's visitation or parenting time, alleging that visitation with
petitioner while she resided with Taylor seriously endangered the physical, mental, moral or
emotional health of the children and that the children were afraid of Taylor. Respondent
alleged petitioner had represented that Taylor would be moving out of her home. He also
alleged that Taylor had gained access to petitioner's house by breaking a window when the
daughter was present after petitioner had tried to keep him out. Attached to the petition
were reports from the children's psychiatrist, Dr. Levin, outlining the negative effects,
including depression and anxiety, the children experienced due to Taylor's presence in
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petitioner's home. Dr. Levin also reported that the daughter desired to injure herself and
had suicidal thoughts. He recommended that any contact between the children and Taylor
discontinue immediately. The petition was also supported by respondent's affidavit.
On that same date, the circuit court entered an order terminating the alternating
weekly parenting schedule and ordering that the children reside with respondent until such
time as Taylor has permanently vacated petitioner's home and that petitioner take all action
to ensure that Taylor have no contact with the children. The court allowed petitioner
reasonable visitation away from Taylor and her home and continued the matter to May 28,
2004.
On May 28, 2004, the court entered an order substantially similar to the one entered
on May 25 after petitioner failed to appear in court and set the matter for a status hearing
on June 29.
On June 23, 2004, respondent filed a motion to add Taylor as a third-party
respondent. 1 Respondent alleged that petitioner "flagrantly disregarded" the court's
previous orders on several occasions and stated "[i]t is imperative that this court have
jurisdiction over [Taylor] in order to enjoin him from various destructive and dangerous
activities." Notice of that motion was sent to petitioner and the matter was set for June 29.
On that date, Cook County Circuit Court Judge Barbara Riley entered an order adding
1
Respondent had filed a motion to add Taylor to the initial dissolution
proceedings. That motion, however, was stricken upon petitioner's motion.
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Taylor as a third-party respondent and ordering that the alternating weekly parenting
schedule cease. Petitioner was allowed reasonable visitation.
Respondent, on July 7, 2004, filed a petition pursuant to sections 11-101 and 11-102
of the Code of Civil Procedure (735 ILCS 5/11-101, 11-102 (West 2004)) and section 501
of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/501 (West
2004)) seeking injunctive relief against Taylor. Respondent alleged facts similar to those
previously stated and added that Taylor had threatened respondent and, despite the court's
previous orders, continued to be present at petitioner's home. Respondent sought a
temporary restraining order (TRO) without notice or bond and a preliminary injunction
enjoining and restraining Taylor from all contact with the children, from residing at
petitioner's home, from having a key to petitioner's home, and from having any contact with
respondent or his wife. Cook County Circuit Court Judge Melvin Cole entered the TRO,
which was set to expire on July 14, the date of the hearing on the preliminary injunction.
Taylor was served with summons, the petition for an injunction, and the TRO on July
8, 2004, at an apartment building in Highland Park. Counsel for Taylor then entered a
special and limited appearance on July 13. On July 14, the parties entered an agreed order
continuing the TRO and the hearing on the preliminary injunction until July 16. In that
order, Taylor's attorney indicated he was unavailable to appear in court and was seeking a
continuance "without waiving objection to venue and jurisdiction." The following day,
Taylor's attorney filed a "Motion to Dismiss Keane Taylor as a Third Party for Lack of
Jurisdiction." Taylor argued in that motion that "the court did not have jurisdiction over him"
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because he was a resident of Highland Park in Lake County and because the actions
complained of in respondent's petition for injunctive relief occurred in Lake County. He also
argued that he was not subject to the Act because he was not party to the Seffrens' original
dissolution action. The only statutory provision Taylor relied on in the motion was the
general venue provision of the Code of Civil Procedure (735 ILCS 5/2-101 (West 2004)).
That motion was noticed for July 16.
In the meantime, on July 9, 2004, Cook County Circuit Court Judge Raymond
Figueroa entered an agreed order resuming the alternating weekly parenting schedule.
The order also stated that petitioner "shall take all action, including all legal remedies
necessary to ensure that [Taylor] has no contact with the minor children *** including face-
to-face interaction at home or away from home, phone calls, phone messages, letters,
emails [sic] messages and the like," and that if Taylor had contact with the children,
whether or not invited by petitioner, the alternating weekly parenting schedule would cease
and the children would reside with respondent until such time as it could be assured that
the children would have no contact with Taylor. A copy of that order was sent to petitioner
and Taylor.
When the parties appeared in court on July 16, 2004, the TRO entered on July 7
was set to expire. However, because there had not yet been a hearing on respondent's
petition for an injunction, Judge Figueroa entered an order sua sponte, and over the
objection of Taylor's attorney, stating that it was in the best interest of the children that they
have no contact with Taylor and ordering Taylor to stay 100 yards away from them at all
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times. The order also set Taylor's motion to dismiss for hearing on August 25 and "entered
and continued" respondent's petition for an injunction to that date for status.
On July 30, 2004, respondent filed a second petition to suspend petitioner's visitation
or parenting time, alleging that on July 26 or 27, Taylor had been at petitioner's home and
had erased incoming and outgoing messages from the daughter's private answering
machine, and that despite her intentions to the contrary, petitioner had no ability to ensure
compliance with the court's orders prohibiting contact. Notice of the petition was sent to
counsel for petitioner and Taylor and the matter was set for August 11.
On August 11, 2004, the parties appeared before Judge Riley and entered an
agreed order continuing respondent's second petition to suspend visitation for
"status/hearing" until August 25, the date the court would hear Taylor's motion to dismiss.
Also set for August 25 was a subsequent petition respondent had filed for a rule to show
cause 2 and, as indicated above, respondent's petition for injunctive relief. The court
additionally entered an order appointing Helen Sigman as the children's representative.
On August 25, 2004, the parties' attorneys and Sigman appeared before Judge Riley
and presented arguments concerning: (1) Taylor's motion to dismiss; (2) respondent's
petition for an injunction; (3) respondent's petition for a rule to show cause; and (4)
respondent's second petition to suspend visitation. In regard to the motion to dismiss,
Taylor's attorney argued that the Act did not provide the court with a mechanism to add
2
Only a notice of motion for the rule to show cause is contained in the record on
appeal. However, the record indicates the petition was in response to Taylor's violation
of the court's order that he stay 100 yards away from the children.
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third-party respondents and that, because Taylor was not party to the original dissolution
proceeding, the court lacked jurisdiction over him. Counsel also argued the cause should
be dismissed for lack of venue.
Sigman indicated that after speaking to both parents and the children, and after
reading the reports prepared by the children's psychiatrist and exchanging phone
messages with him, it was her conclusion that both petitioner and respondent cared for the
children, that both parents, and the children, enjoyed the alternating weekly parenting
schedule, and that the only issue was petitioner's inability to keep Taylor away from the
children. Sigman wanted the July 9, 2004 order in which petitioner agreed to keep Taylor
away from the children expanded to enjoin Taylor from being in petitioner's home at any
time, including when the children did not live there.
Petitioner's attorney represented that Taylor had moved out of petitioner's home in
June and argued that the July 9 order was sufficient to protect the interests of the children.
Counsel also argued that it was unnecessary to enjoin Taylor from residing in petitioner's
home when the children were not staying there. However, if an injunction needed to be
entered, counsel's position was that it should issue only against Taylor.
Taylor's attorney objected, arguing that Taylor should be given an opportunity to
respond in writing and appear before the court before an injunction was entered. The court
responded by saying "[t]hese are not his children, nor is this is [sic] his home." When
counsel again argued that Taylor was entitled to appear in court or respond in writing, and
was entitled to a hearing, the court responded "[b]ut, [c]ounsel, a hearing on what? They
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are not his children. It is not his home." The court added "[w]hat could he possibly say in
regard to his ability to have contact with somebody else's children[?] *** It's not like he's
being accused of wrongdoing."
The circuit court determined that jurisdiction was proper and denied Taylor's motion
to dismiss. The court also found that a permanent, rather than temporary, injunction was
necessary because the problem was ongoing. The court then entered a permanent
injunction prohibiting Taylor from having "any contact whatsoever" with the Seffren children
or petitioner's home and ordering him to remain at least 100 yards away from the children
at all times. The order also prohibited petitioner from allowing Taylor contact with the
children or access to her home. Respondent's second motion to suspend visitation and his
petition for a rule to show cause were withdrawn, and the matter was ordered "off-call."
The court subsequently denied Taylor's motion to reconsider and made a finding that there
was no just reason to delay enforcement of its orders. Taylor now appeals.
ANALYSIS
Taylor raises issues of jurisdiction, venue, and procedural due process on appeal.
As respondent points out, Taylor has failed to support the majority of his contentions with
citation to relevant authority in violation of Supreme Court Rule 341(e)(7) (Official Reports
Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7), eff. October 1, 2001). Taylor has
also failed to provide this court with the applicable standard of review as required by section
(e)(6) of that rule. Respondent requests that we find Taylor has waived his contentions for
appeal. This court "is not a depository in which the appellant may drop the burden of
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argument and research" and is entitled to have the arguments of the parties clearly set forth
and supported by pertinent authority. In re Marriage of Winton, 216 Ill. App. 3d 1084, 1090,
576 N.E.2d 856 (1991); Johnson v. Matrix Financial Services Corp., 354 Ill. App. 3d 684,
698, 820 N.E.2d 1094 (2004). However, as waiver is a limitation on the parties and not on
this court, we will not find Taylor's contentions waived. In re Marriage of Kostusik, 361 Ill.
App. 3d 103, 114, 836 N.E.2d 147 (2005).
I
Taylor challenges the circuit court's determination that it had jurisdiction. Where a
circuit court determines jurisdictional issues without hearing testimony, we review the
court's determination de novo. In re Marriage of Kosmond, 357 Ill. App. 3d 972, 974, 830
N.E.2d 596 (2005) (Kosmond).
Taylor's jurisdictional challenge, as set out before the circuit court and before this
court, is unclear. Although he claims to contest the circuit court's subject matter jurisdiction
to add him as a third-party respondent, Taylor uses phrases such as "over him," which
sound in personal jurisdiction. The procedures used by trial counsel, including filing a
special appearance to contest jurisdiction, also indicate a challenge to personal jurisdiction,
at least under the preamended version of section 2-301 of the Code of Civil Procedure (see
735 ILCS 5/2-301 (West 1998); KSAC Corp. v. Recycle Free, Inc., 364 Ill. App. 3d 593,
594-97, 846 N.E.2d 1021 (2006) (discussing the 2000 amendments to section 2-301)). We
will therefore address the circuit court's subject matter and personal jurisdiction.
In order for a judgment of a court to be valid, a court must have both jurisdiction of
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the subject matter of the litigation and jurisdiction over the parties. In re Marriage of
Verdung, 126 Ill. 2d 542, 547, 535 N.E.2d 818 (1989); State Bank of Lake Zurich v. Thill,
113 Ill. 2d 294, 308, 497 N.E.2d 1156 (1986). Subject matter jurisdiction is derived from
Article VI of the Illinois Constitution (Ill. Const. 1970, art. VI) and refers to a court's power to
hear and determine cases of the general class or category to which the proceedings
belong. In re Marriage of Devick, 315 Ill. App. 3d 908, 913, 735 N.E.2d 153 (2000)
(Devick); In re Marriage of Hostetler, 124 Ill. App. 3d 31, 34, 463 N.E.2d 955 (1984)
(Hostetler). Personal jurisdiction, on the other hand, is not conferred by any constitutional
grant; rather, a court's jurisdiction over a person is conferred by the service of summons or
by the filing of an appearance. Hostetler, 124 Ill. App. 3d at 34; see also In re Marriage of
Schmitt, 321 Ill. App. 3d 360, 367, 747 N.E.2d 524 (2001).
In this case, the circuit court had subject matter jurisdiction. Section 511 of the Act
(750 ILCS 5/511 (West 2004)) grants the circuit courts jurisdiction to modify a previously
entered judgment of dissolution, so long as a modification petition has been filed. Ottwell v.
Ottwell, 167 Ill. App. 3d 901, 908, 522 N.E.2d 328 (1988). Here, respondent filed a petition
to suspend petitioner's visits until such time as she could ensure the children would not be
exposed to Taylor. Therefore, the circuit court had jurisdiction over the subject of
respondent's postdecree motions.
Further, contrary to Taylor's contention, he was properly added as a third-party
respondent. Section 403 of the Act provides that the circuit court may join additional
parties in its discretion. 750 ILCS 5/403(d) (West 2004). Even though the joinder of third
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parties is not specifically addressed in the postdecree context, section 105 of the Act states
that the Civil Practice Law (735 ILCS 5/2-101 et seq. (West 2004)) shall apply except where
otherwise provided. 750 ILCS 5/105(a) (West 2004). Section 2-406 of the Civil Practice
Law provides a way for individuals to be brought into cases as third parties. 735 ILCS 5/2-
406 (West 2004). Following this statutory scheme, it seems that a circuit court may add
third parties in dissolution cases, and cases from this court in fact support such a notion.
See Kosmond, 357 Ill. App. 3d at 973 (German bank added as a third-party respondent in a
dissolution proceeding); Devick, 315 Ill. App. 3d at 913 (addressing a third-party action in
the postdecree context); In re Marriage of Olbrecht, 232 Ill. App. 3d 358, 365-66, 597
N.E.2d 635 (1992) (discussing counsels' strategic choices to opt to not add the husband's
aunt as a party in a dissolution proceeding). Taylor even concedes that in some cases,
courts may add certain parties as third-party respondents, but, for unspecified reasons,
argues he could not be added in this case. We will not entertain such a vague and
unsupported argument and therefore conclude that the circuit court had the authority to add
Taylor to the postdecree proceedings at bar, and otherwise had jurisdiction over the subject
matter of the proceedings.
We similarly conclude that the circuit court had personal jurisdiction over Taylor.
Section 2-209(b)(2) of the Code of Civil Procedure provides that a court may exercise
jurisdiction over a natural person domiciled within the state at the time the action arose.
735 ILCS 5/2-209(b)(2) (West 2004); Kosmond, 357 Ill. App. 3d at 976. The record in this
case indicates that Taylor, a resident of Lake County, was domiciled in Illinois and was
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properly served with summons, the petition for a preliminary injunction, and the TRO on
July 8, 2004. Personal jurisdiction was therefore proper.
II
Taylor next contends that the circuit court "erred in denying [his] motion to dismiss"
because Cook County was not the proper venue. This contention also lacks merit.
Section 512 of the Act addresses venue in the postdecree context. 750 ILCS 5/512
(West 2004). According to that section, where, as here, both the respondent and the
petitioner no longer live in the judicial circuit where the dissolution was granted, further
proceedings may continue in that circuit. 750 ILCS 5/512(c) (West 2004). Therefore, as
the parties' marriage was dissolved in Cook County, venue remained in that county so long
as neither party objected. The record indicates that neither petitioner nor respondent
objected to the proceedings taking place in Cook County, and venue was therefore proper.
Taylor argues that although Cook County may have been the proper venue to litigate
any issues between petitioner and respondent, Lake County was the only venue to litigate
respondent's motions for injunctive relief against Taylor. Taylor seems to argue that
because section 512 addresses venue only as it involves the petitioner or the respondent,
and not as it relates to third parties added post decree, the general venue provision of the
Code of Civil Procedure applies. Relying on section 2-101 of that Code, Taylor argues
venue was proper in Lake County because that is where he resides and where the
complained-of actions arose. See 735 ILCS 5/2-101 (West 2004). Taylor's contention fails,
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as normal venue rules generally have no application where a third party has been added
because the third party is added to a preexisting lawsuit. 3 R. Michael, Illinois Practice '
25.5, at 444 (1989).
Even if we were to accept Taylor's contention that Cook County was an improper
venue, the result would not be to dismiss the case. Rather, the proper relief would be to
transfer the cause to Lake County. At no point during the proceedings did Taylor ever ask
that the case be transferred to Lake County; rather he sought only to dismiss the action in
its entirety. As neither the Act nor the Code of Civil Procedure provides for such relief, the
circuit court did not err in denying Taylor's motion to dismiss the case.
III
Taylor next contends that the circuit court erred in entering a permanent injunction
on August 25, 2004, because the matter was only set for status on that date and because
the court did not provide him with an opportunity to respond or to present evidence.
While the purpose of a preliminary injunction is to preserve the status quo pending
resolution of the merits of the case (Butler v. USA Volleyball, 285 Ill. App. 3d 578, 582, 673
N.E.2d 1063 (1996) (Butler)), the purpose of a permanent injunction is to maintain the
status quo indefinitely following a hearing on the merits (American National Bank & Trust
Co. of Chicago v. Carroll, 122 Ill. App. 3d 868, 881, 462 N.E.2d 586 (1984) (Carroll)). In
order to be entitled to a permanent injunction, the party seeking the injunction must
demonstrate: (1) a clear and ascertainable right in need of protection; (2) that he or she will
suffer irreparable harm if the injunction is not granted; and (3) that there is no adequate
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remedy at law. Sparks v. Gray, 334 Ill. App. 3d 390, 395, 777 N.E.2d 1026 (2002)
(Sparks). Because the issues raised in this case present questions of law, our review of
the grant of injunctive relief is de novo. Butler, 285 Ill. App. 3d at 582.
We agree with Taylor's contention that the circuit court erred in issuing an injunction
permanently enjoining him from having any contact with the Seffren children or from
residing in petitioner's home without holding an evidentiary hearing on the matter. It is
settled law that a permanent injunction may be entered only after the party seeking the
injunction demonstrates at "a hearing on the merits" the requisite elements for permanent
injunctive relief. Carroll, 122 Ill. App. 3d at 881; Sparks, 334 Ill. App. 3d at 395; Butler, 285
Ill. App. 3d at 582. Further, a permanent injunction may not be entered without providing
the respondent the opportunity to appear in court, to present evidence, and to cross-
examine witnesses where he or she is not in default. Pfeffer v. Lebanon Land
Development Corp., 46 Ill. App. 3d 186, 193-94, 360 N.E.2d 1115 (1977); James B. Beam
Distilling Co. v. Foremost Sales Promotions, Inc., 13 Ill. App. 3d 176, 178, 300 N.E.2d 488
(1973).
The report of the August 25, 2004 proceedings indicates that the circuit court
considered only arguments from the parties' attorneys and the children's representative.
Taylor was not present, and although Taylor's attorney objected several times and asked
that Taylor be permitted to be heard and to present evidence, Taylor was not given an
opportunity to respond to the allegations contained in respondent's petition or to present
evidence. The circuit court then entered a permanent injunction without hearing any
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testimony or other substantive evidence. Because the procedures undertaken by the circuit
court in this case were improper, we reverse the circuit court's order granting a permanent
injunction, and remand the cause for further proceedings not inconsistent with this opinion.
In light of our findings, we need not consider Taylor's contention regarding the denial of his
motion to reconsider.
CONCLUSION
The portions of the circuit court's August 25, 2004 order finding jurisdiction and
venue proper are affirmed. The circuit court's order granting a permanent injunction is
reversed and the cause is remanded.
Affirmed in part and reversed in part; cause remanded.
HOFFMAN, P.J., and KARNEZIS, J., concur.
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