In re Marriage of Ricard

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Marriage of Ricard, 2012 IL App (1st) 111757Appellate Court In re MARRIAGE OF CLAUDE F. RICARD, Petitioner-Appellant, and
Caption DANIELLE M. SAHUT, Respondent-Appellee.
District & No. First District, Sixth Division
Docket No. 1-11-1757
Filed August 10, 2012
Held The public and private interest factors supported the trial court’s order
(Note: This syllabus granting respondent’s motion to dismiss petitioner’s dissolution action on
constitutes no part of ground of forum non conveniens where the evidence showed France
the opinion of the court would be a more convenient forum for the litigation and French law did
but has been prepared not present a danger that petitioner would be treated unfairly.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 09-D-11083; the
Review Hon. Thomas J. Kelley, Judge, presiding.
Judgment Affirmed.
Counsel on David I. Grund, Marvin J. Leavitt, Ilene E. Shapiro, and David C. Adams,
Appeal all of Grund & Leavitt, P.C., of Chicago, for appellant.
Bryan V. Reed and Tania K. Harvey, both of Reed, Centracchio &
Associates, LLC, of Chicago, for appellee.
Panel JUSTICE PALMER delivered the judgment of the court, with opinion.
Justices Garcia and Lampkin concurred in the judgment and opinion.
OPINION
¶1 Petitioner Claude F. Ricard appeals from a trial court order granting the motion of
respondent Danielle M. Sahut to dismiss his petition for dissolution of marriage on the
grounds of forum non conveniens. We affirm.
¶2 BACKGROUND
¶3 Claude is a 62-year-old French citizen who was born in Marseille, France. Claude owns
properties around the world, including a house in Glencoe and a house in Winnetka, Illinois.
He currently resides in the house in Winnetka. Danielle is a 64-year-old French citizen who
was born and resides in Lyon, France. The parties met in Brazil in October 2006 and were
lawfully married in a civil ceremony in Aix en Provence, France, on June 21, 2008. They
were married in a religious ceremony near Tagion, France, on August 19, 2008. This was
Claude’s third and Danielle’s first marriage. No children were born to the parties. Claude has
two children from his first marriage and Danielle has none. The parties did not enter into a
premarital agreement.
¶4 The parties separated in May 2009. Claude filed a petition for divorce in Lyon, France,
on June 17, 2009. In the petition, Claude represented that he resided in Aix en Provence,
France, and that Danielle resided in Lyon, France. Danielle filed a separate and independent
action for spousal support in Lyon, France, on August 7, 2009. Claude’s divorce action in
France was continued and the matter was set for November 3, 2009. The record is silent on
what transpired on that date.
¶5 On December 3, 2009, Claude voluntarily dismissed his divorce action in France. On the
same date, he filed a two-count “Petition for Declaration of Invalidity of Marriage and Other
Relief” in the circuit court of Cook County, Illinois. The petition was filed pursuant to the
Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 et seq.
(West 2008)). Claude alleged in the petition that he was induced into marriage by fraud. He
claimed that Danielle lacked the physical capacity to consummate the marriage by sexual
intercourse and that at the time the marriage was solemnized, he did not know of the
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incapacity. See 750 ILCS 5/301(2) (West 2008). Claude sought that the marriage be declared
invalid or, in the alternative, that he be granted a divorce from Danielle. Danielle was
personally served with summons of Claude’s petition in France on January 19, 2010. She
filed her appearance in Illinois on February 18, 2010.
¶6 On April 16, 2010, Danielle filed a motion to dismiss Claude’s petition for lack of
jurisdiction and on the grounds of forum non conveniens. Danielle later amended the motion,
seeking dismissal of Claude’s petition based on lack of subject-matter and personal
jurisdiction (count I) and under the doctrine of forum non conveniens (count II). In count II,
Danielle argued that France, rather than Illinois, would be a more convenient forum to
resolve this litigation.
¶7 On May 3, 2010, the court in Lyon, France, entered a final judgment in Danielle’s
spousal support action, awarding her €5,000 (about $7,200) per month in support. Claude
appealed from that judgment in France. That appeal was pending at the time the trial court
entered the order appealed from in this case.
¶8 On August 10, 2010, Claude filed a motion for partial summary judgment on Danielle’s
amended motion to dismiss, arguing that the court had subject-matter jurisdiction to hear the
case and personal jurisdiction over Danielle. After hearing argument, the court granted
Claude’s motion for partial summary judgment, finding that the court had both subject-matter
and personal jurisdiction. The court reserved ruling on the issue of forum non conveniens
until further briefing by the parties and an evidentiary hearing.
¶9 The parties conducted discovery on the issue of forum non conveniens and a six-day
evidentiary hearing was held on February 22 through February 25, May 23 and May 26,
2011. On the last date of the hearing, Danielle represented to the court that she had filed a
divorce action in Lyon, France, on or about May 18, 2011.
¶ 10 At the hearing, the court heard testimony from Danielle and Claude. Both parties required
the services of an interpreter during the hearing.
¶ 11 Danielle testified that she was born and raised in France and, except for limited periods
of time, has resided in France her entire life. She currently lives in a two-bedroom residence
in Lyon, France, that she inherited from her mother. She has resided there since 1974.
Danielle is a French citizen and only has a French passport. She said she does not speak, read
or write English. She explained that she relies on an interpreter to communicate with her
attorney. Danielle acknowledged that she has corresponded in English via e-mail. She also
acknowledged that she was able to translate some legal documents using a translating Web
site. Danielle said she spent about €4,000 on translator fees during the proceeding.
¶ 12 Danielle testified that she retired from a nursing career eight months before the parties’
marriage. Danielle receives retirement income of €309 a month in addition to her spousal
support. She has €12,000 in savings and a life insurance annuity of €40,000. Danielle does
not conduct business in the United States of America. She also does not own property or
have family in the United States.
¶ 13 Danielle testified that the parties were married in France because they are both French
citizens, have friends in France and Claude’s two sons were in France. Danielle said that
after the June 21, 2008, civil ceremony, Claude moved into her house in Lyon, France. On
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the same date, the parties applied for a United States permanent resident card (green card)
by completing and signing an application for immigrant visa and alien registration. Danielle
acknowledged that on the application she listed Claude’s Glencoe home as her intended
permanent address in the United States. She denied that she intended to live in the United
States.
¶ 14 During the parties’ seven-month marriage, Danielle visited Illinois with Claude on three
occasions: about July 1, 2008, to July 20, 2008; about August 21, 2008, to September 15,
2008; and about October 9, 2008, to November 23, 2008. On each occasion, Claude made
the travel arrangements and paid for all travel expenses. Danielle also visited Illinois before
the parties’ marriage but stayed no longer than six weeks at a time. Aside from traveling to
Illinois for this litigation, Danielle has not been in the United States since November 2008.
¶ 15 Danielle received her green card in October 2008. She denied registering as a permanent
resident of the United States with the French consulate in Chicago. She also denied listing
Claude’s Winnetka home as her residence with the French consulate. Danielle was
impeached with a certified copy of a “Certificate of Registration on the Registry of French
Citizens Located Outside of France and of Residence” that reflected Danielle’s permanent
residence to be Claude’s house in Winnetka. Danielle acknowledged that she has not taken
action to cancel or void her green card.
¶ 16 Danielle testified that she intended to call her primary physician and gynecologist as
witnesses to rebut Claude’s allegations that she was physically unable to consummate the
marriage. Both physicians are in Lyon, France. Danielle said she also intended to call
Claude’s property manager and Claude’s two accountants as witnesses. All three witnesses
reside in France. Danielle identified a Ms. DuPont as another possible witnesses. Ms. Dupont
is an accountant residing in France who evaluated Claude’s income in Danielle’s spousal
support action filed in Lyon, France. Danielle identified about eight other potential witnesses
that may need to testify in support of her maintenance claim or against Claude’s allegations.
All eight witnesses reside in or around Lyon, France. Danielle’s counsel stipulated that these
witnesses were not included in Danielle’s answers to Claude’s interrogatories.
¶ 17 Danielle testified that traveling to Chicago for court proceedings would be a hardship for
her. She said that she was struck by a car on February 25, 2011, and injured her ankle. She
was given emergency care in Chicago and treated in France for three broken bones. The
treatment included surgery, insertion of screws and about five months of physical therapy in
France. Danielle’s treating physicians are in France. Danielle explained that she must keep
her leg elevated to prevent swelling and that this posed a problem during her most recent
flight to the United States. She acknowledged that she was able to take pain medication
before her flight to control the swelling and pain.
¶ 18 Danielle also testified that litigating the case in Chicago would be a financial burden for
her. She recounted her finances and the expenses she incurred in litigating this matter. She
acknowledged that if the court ordered Claude to pay her travel expenses this burden would
be lifted.
¶ 19 Claude testified that he was born, raised and educated in France. He is a French citizen
and has only a French passport. He said that he has been married twice before and filed for
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his second divorce in Cook County. That action was by agreement refiled in France and
finalized there. Claude has two children from his first marriage. One child lives in Lyon,
France, and the other in Brazil. Claude has a grandchild who lives in Lyon, France. Claude’s
mother also lives in France. He travels to France to visit his mother one to two times a year.
Claude spent about four months in France in 2009 and about two months in France in 2010.
Claude has no family in the United States.
¶ 20 Claude started a successful business in France and moved to Illinois in 1995 or 1996.
Before receiving his green card in 2008, he maintained the status of an E-2 investor and held
an E-2 nonimmigrant investor visa card, which allows foreign entrepreneurs to carry out
business in the United States. Claude established and conducted several businesses in
Illinois. Claude said that he has filed both federal and Illinois income-tax returns as an
Illinois resident. The tax returns are prepared by his accountant in Northbrook.
¶ 21 Claude sold his Illinois business interests in 2007 and is currently retired. He receives
€70,000 a year in retirement income from France. He also receives about €100,000 a year of
rental income from properties he owns in France. He maintains a French bank account.
¶ 22 Claude owns properties around the world, including the two in Illinois. The house in
Glencoe is currently listed for sale and the house in Winnetka is his primary residence. The
properties are worth $5 million and $7 million respectively. Claude also owns multiple rental
properties in Lyon, France, and derives much of his income from those properties. Claude’s
property manager resides in Lyon, France. Claude also has a 50% ownership interest in a
house in Perpignan, France. He purchased the house with a friend for €550,000. The house
was purchased during the parties’ marriage. Claude also owns an apartment in Brazil. In
2010, Claude sold property in Aix en Provence, France, for about €3 million. Claude’s
disclosure statement relative to his divorce from his second wife listed his gross assets as of
June 2007 in excess of $10 million. He splits his time between Illinois, France and Brazil.
¶ 23 Claude met Danielle in Brazil in October 2006 and they were lawfully married on June
21, 2008. Claude testified that after their civil marriage ceremony, the parties traveled to the
United States on July 1, 2008, because they planned to live there. He said Danielle registered
with the French consulate in Chicago upon their arrival in Chicago and provided the
consulate with the address of Claude’s house in Winnetka. Claude testified that on July 21,
2008, the parties traveled to France for the August 19, 2008, religious wedding ceremony.
On August 21, 2008, the parties returned to the United States.
¶ 24 In early October 2008, the parties traveled to France to retrieve their green cards at the
American embassy in Paris. They returned to the United States on October 9, 2008, where
the parties gave their green cards to an immigration official at the airport who registered
them as permanent residents of the United States.
¶ 25 Claude testified that on November 23, 2008, the parties traveled to Brazil. Claude
returned to the United States on January 15, 2009. He said Danielle did not accompany him
because she had decided she did not like the United States and refused to return there.
Danielle remained in Brazil until she traveled to France in March 2009.
¶ 26 Claude testified that he has had heart trouble for the past 15 years and that it is difficult
for him to travel long distances. He recounted that he has had multiple blockages, heart
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attacks and surgeries since about 1996. He said his most recent heart attack was in January
2011. At that time, he was hospitalized at Evanston Hospital in Illinois. Claude has treating
physicians in Chicago, Paris and Aix en Provence. He said he travels to Brazil periodically
for alternative healing treatments. He explained that one of the reasons he dismissed his
divorce action in France was due to his health problems. He acknowledged that Danielle had
rejected a settlement agreement they had negotiated in France. That settlement agreement
would have served as a predicate for the French divorce.
¶ 27 Claude said that he was willing to pay for Danielle’s expenses to litigate the case in
Illinois. He explained that he had sufficient assets to pay for her and her witnesses to travel
to Illinois and testify. He also said he would be willing to pay for translation of all necessary
documents.
¶ 28 Mary Weiland testified that she had been a house and pet sitter for Claude for about three
years. Weiland said that she interacted with Danielle on a daily basis when Danielle lived in
Claude’s Glencoe residence. Weiland said that she always communicated with Danielle in
English and that she found Danielle’s spoken English easier to understand than Claude’s
spoken English. Weiland explained that the only difficulty she observed Danielle having with
the English language is that she occasionally had to refer to a dictionary.
¶ 29 After the hearing, the court heard closing argument from the parties. Danielle argued that
the evidence presented favored transfer to France on the grounds of forum non conveniens.
Claude argued that the court did not have the authority to grant an interstate forum non
conveniens motion where one of the parties resides outside of the United States. He claimed
that under section 104 of the Marriage Act (750 ILCS 5/104 (West 2008)), venue “shall be
had in the county where the plaintiff or defendant resides.” He maintained that the Marriage
Act did not authorize the international application of the doctrine of forum non conveniens.
The court deferred ruling on the motion to review the evidence.
¶ 30 Before the court ruled on the motion, Claude filed a petition for declaratory relief,
arguing that Supreme Court Rule 187 (Ill. S. Ct. R. 187 (eff. Aug. 1, 1986)), as applied to
this case, is unconstitutional. Rule 187 allows a party to an action to file a motion to transfer
or dismiss the action under the doctrine of forum non conveniens. He claimed that if the
action were transferred to France or dismissed it would thwart and violate his substantive due
process right to obtain a remedy as guaranteed by both the state and federal constitutions.
¶ 31 On June 20, 2011, the trial court entered a written order granting Danielle’s motion and
dismissing Claude’s petition under the conditions provided in Rule 187(c)(2). The court
made the following findings in the order. First, the court found that Claude’s choice of
forum, Illinois, was entitled to substantial deference because he owns two houses in Illinois
and claims his primary residence is in Illinois. Second, the court found that, despite having
given substantial deference to Claude’s choice of forum, under the facts of this case the
private and public interest factors favored dismissal for forum non conveniens. Third, the
court found that it had the authority to grant Danielle’s interstate forum non conveniens
motion based on the appellate court’s decision in In re Marriage of Clark, 232 Ill. App. 3d
342 (1992) (affirming the circuit court’s order granting wife’s motion to dismiss husband’s
petition for dissolution of marriage on the grounds of forum non conveniens and transferring
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the divorce action to the State of Massachusetts). Finally, the court denied Claude’s petition
for declaratory relief, finding that his constitutional right to obtain a remedy would not be
violated if Danielle’s motion were granted because Claude can still obtain his primary
remedy and be awarded a divorce in France. Claude appeals.
¶ 32 ANALYSIS
¶ 33 Claude first contends on appeal that the trial court erred as a matter of law and exceeded
its authority when it dismissed his petition on the grounds of forum non conveniens pursuant
to Supreme Court Rule 187. He argues that under section 105(a) of the Marriage Act, divorce
actions are governed by article II of the Code of Civil Procedure (Code), also known as the
Civil Practice Law. See 750 ILCS 5/105(a) (West 2008) (“The provisions of the Civil
Practice Law shall apply to all proceedings under this Act, except as otherwise provided in
this Act.”). He claims that because the Marriage Act does not specifically incorporate article
I of the Code, entitled “General Provisions,” those provisions, including the supreme court’s
authority to enact rules, such as Rule 187, for the administration and enforcement of the Civil
Practice Law, are inapplicable to proceedings under the Marriage Act. Claude thus maintains
that Rule 187 and the doctrine of forum non conveniens referenced therein are superseded
by the Marriage Act, which outlines the criteria for a matrimonial litigant to invoke the
court’s jurisdiction in a divorce proceeding, and that he satisfied those criteria. He asserts
that when the trial court “improperly invoked” the doctrine of forum non conveniens and
declined jurisdiction over the proceeding, the court defeated the role of the legislature to
create a statutory cause of action for divorce under the Marriage Act.
¶ 34 Although Claude raises a novel argument for this court’s consideration, in doing so he
ignores the structure of the Code. The Code begins with article I, “General Provisions.”
Section 1-101, entitled “Short titles,” provides that “[t]his Act shall be known” as the
“ ‘Code of Civil Procedure.’ ” 735 ILCS 5/1-101(a) (West 2008). Section 1-105, entitled
“Enforcement of Act and rules,” provides that the “Supreme Court may provide by rule for
the orderly and expeditious administration and enforcement of this Act.” 735 ILCS 5/1-105
(West 2008). Accordingly, these general provisions, including section 1-105 which
empowers our supreme court to enact rules for the administration of the Code, are
specifically applicable to all articles of the Code, including article II, the Civil Practice Law.
Therefore, by incorporating the Civil Practice Law, the Marriage Act also necessarily
incorporates the general provisions of the Code, which serve an administrative function.
¶ 35 To otherwise interpret the Marriage Act, as pointed out by Danielle, would create absurd
results. Namely, numerous other supreme court rules in addition to Rule 187 would be
inapplicable to divorce actions under the Marriage Act. These include but are not limited to
Rule 137, which governs sanctions (Ill. S. Ct. R. 137 (eff. Feb. 1, 1994)); Rule 213, which
governs interrogatories (Ill. S. Ct. R. 213 (eff. Jan. 1, 2007)); Rule 214, which governs
document production (Ill. S. Ct. R. 214 (eff. Jan. 1, 1996)); and Rule 216, which governs
requests to admit (Ill. S. Ct. R. 216 (eff. Jan. 1, 2011)). Obviously, this is not a conclusion
we are willing to reach nor is it one we believe the legislature intended. See Solon v. Midwest
Medical Records Ass’n, 236 Ill. 2d 433, 441 (2010) (a reviewing court may consider the
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consequences that would result from construing a statute one way or the other, while
presuming that the legislature did not intend absurd, inconvenient or unjust consequences).
Simply stated, the mere fact that the Marriage Act provides that jurisdiction and venue in a
plaintiff’s chosen forum may be proper, does not lead to the conclusion that the matter may
not be transferred in accordance with the rules to another forum where jurisdiction also lies.
¶ 36 At oral argument, Claude retreated somewhat from this argument and raised the
alternative novel argument that a forum non conveniens motion is not a proceeding under the
Marriage Act. Contrary to Claude’s argument, this court has long considered the doctrine of
forum non conveniens to appropriately apply to a dissolution of marriage action. See In re
Marriage of Mather, 408 Ill. App. 3d 853 (2011) (holding that Du Page County rather than
Cook County was the more appropriate forum for a divorce action and affirming the circuit
court’s dismissal of husband’s petition for dissolution of marriage on the grounds of forum
non conveniens); Clark, 232 Ill. App. 3d 342 (affirming the circuit court’s order granting
wife’s motion to dismiss husband’s petition for dissolution of marriage on the grounds of
forum non conveniens and transferring the divorce action to the State of Massachusetts); In
re Marriage of Kelso, 173 Ill. App. 3d 746 (1988) (reversing circuit court’s order granting
respondent’s motion to quash service of process based on lack of personal jurisdiction
because respondent subjected herself to the jurisdiction of the court in dissolution of
marriage proceeding by filing a motion to dismiss the proceeding on grounds of forum non
conveniens).
¶ 37 We see no reason here to depart from this line of reasoning or embrace the narrow
definition of proceeding proposed by Claude. Rather, a “proceeding” includes “[t]he regular
and orderly progression of a lawsuit, including all acts and events between the time of
commencement and the entry of judgment” and “[a]ny procedural means for seeking redress
from a tribunal or agency.” Black’s Law Dictionary 1324 (9th ed. 2009). This lawsuit, which
was entitled “In re the Marriage of Claude Ricard and Danielle Sahut,” No. 09 D 11083, was
a proceeding under the Marriage Act and the hearing on the forum non conveniens motion
was part of that proceeding.
¶ 38 In finding that the doctrine of forum non conveniens applies to divorce actions, we reject
Claude’s argument that the trial court exceeded its authority in dismissing his petition by
applying the doctrine internationally. In considering this argument, we first note that Claude
cites, and we have found, no legal authority to support his position. See First National Bank
of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 208 (2007) (appellant has a duty to clearly
define issues on appeal, cite pertinent authority and present a cohesive legal argument). This
court need not consider arguments unsupported by citation to legal authority. See Lowrey,
375 Ill. App. 3d at 208-09.
¶ 39 Even ignoring the lack of legal authority, we note that neither the doctrine nor Rule 187
excludes the possibility that an action may be more convenient in an international forum. The
doctrine “presupposes the existence of more than one forum in which jurisdiction may be
obtained over the parties and the subject matter of a case and in which the controversy may
be tried.” Stonnell v. International Harvester Co., 132 Ill. App. 3d 1043, 1044 (1985) (citing
Wieser v. Missouri Pacific R.R. Co., 98 Ill. 2d 359, 364 (1983)). The doctrine does not
specify that the alternate forum must be domestic. Rather, the alternative forum is proper if
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it has “ ‘power to hear the case’ and ‘grant relief.’ ” Stonnell, 132 Ill. App. 3d at 1044
(quoting Espinosa v. Norfolk & Western Ry. Co., 86 Ill. 2d 111, 117 (1981)). Similarly, Rule
187 authorizes the dismissal of an action to “another forum,” without specifying that the
other forum must be domestic. See Ill. S. Ct. R. 187(c)(2) (eff. Aug. 1, 1986).
¶ 40 Although admittedly trial courts do not have frequent occasion to consider an alternative
international forum with regard to divorce actions, such forums are routinely considered by
courts in commercial and product liability cases. See, for example, Vivas v. The Boeing Co.,
392 Ill. App. 3d 644 (2009) (affirming the trial court’s denial of defendant’s forum non
conveniens motion seeking to transfer the case to the Republic of Peru, where the airplane
crash giving rise to the litigation occurred); Woodward v. Bridgestone/Firestone, Inc., 368
Ill. App. 3d 827 (2006) (affirming the trial court’s denial of defendant’s forum non
conveniens motion seeking to transfer a product liability action to Australia, where the car
accident occurred). We note that while in each of these cases transfer was denied, it was done
so on the merits of the forum non conveniens motion and not due to the lack of the court’s
authority to transfer the matter internationally. We see no reason to make a distinction
between these cases and divorce actions for purposes of forum non conveniens.
¶ 41 There is no question here that the French court is capable of adjudicating Claude’s
divorce action. The record shows that it has done so twice before. Forum selection and
choice-of-law clauses may not be circumvented merely because foreign law or procedure
might be different or less favorable. Philips Electronics N.V. v. New Hampshire Insurance
Co., 312 Ill. App. 3d 1070, 1084-85 (2000). Accordingly, we decline Claude’s invitation to
limit domestically the application of the doctrine of forum non conveniens in dissolution of
marriage proceedings.
¶ 42 Having found that the trial court did not exceed its authority in dismissing Claude’s
petition on the grounds of forum non conveniens, we next consider Claude’s argument that
the trial court abused its discretion in doing so.
¶ 43 Forum non conveniens is an “ ‘equitable doctrine founded in considerations of
fundamental fairness and the sensible and effective administration of justice.’ ” Mather, 408
Ill. App. 3d at 857 (quoting Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 441
(2006)); Gridley v. State Farm Mutual Automobile Insurance Co., 217 Ill. 2d 158, 169
(2005). This doctrine allows a trial court to transfer a case when a “trial in another forum
‘would better serve the ends of justice.’ ” Langenhorst, 219 Ill. 2d at 441 (quoting Vinson
v. Allstate, 144 Ill. 2d 306, 310 (1991)); Mather, 408 Ill. App. 3d at 857.
¶ 44 The burden is on the party seeking dismissal, in this case Danielle, to show that the
relevant factors “ ‘strongly favor’ ” transfer. (Emphasis omitted.) Langenhorst, 219 Ill. 2d
at 442 (quoting Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 108
(1990)); Vivas, 392 Ill. App. 3d at 656 (in product liability and negligence case where
airplane crash was in the Republic of Peru with primarily Peruvian decedents, burden was
on defendants to show factors strongly favoring transfer to Peru); First American Bank v.
Guerine, 198 Ill. 2d 511, 517 (2002) (plaintiffs have a substantial interest in choosing a
forum where their rights will be vindicated, and plaintiffs’ forum choice should rarely be
disturbed unless other factors strongly favor transfer. The defendant must show that the
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plaintiff’s chosen forum is inconvenient to the defendant and another forum is more
convenient to all parties.).
¶ 45 “ ‘A trial court is afforded considerable discretion in ruling on a forum non conveniens
motion.’ ” Mather, 408 Ill. App. 3d at 857 (quoting Langenhorst, 219 Ill. 2d at 441). This
court will reverse a circuit court’s decision on a forum non conveniens motion only if the
defendants show that the court abused its discretion in balancing the relevant factors. Mather,
408 Ill. App. 3d at 857-58; Langenhorst, 219 Ill. 2d at 442. “A circuit court abuses its
discretion in balancing the relevant factors only where no reasonable person would take the
view adopted by the circuit court.” Langenhorst, 219 Ill. 2d at 442. The issue before us is not
what decision we would have reached if we were reviewing the facts on a clean slate but
whether the trial court acted in a way that no reasonable person would. Mather, 408 Ill. App.
3d at 858; Vivas, 392 Ill. App. 3d at 657.
¶ 46 Here, we find that a reasonable person could have taken the view adopted by the trial
court. Generally, a plaintiff’s choice of forum will prevail if the venue is proper and the
inconvenience factors attached to the chosen forum do not greatly outweigh the plaintiff’s
substantial right to try the case in the chosen forum. Guerine, 198 Ill. 2d at 520 (citing Peile
v. Skelgas, Inc., 163 Ill. 2d 323, 335-36 (1994)). Before weighing these factors, the trial court
must first determine how much deference to give to the plaintiff’s choice of forum. Mather,
408 Ill. App. 3d at 858. If the plaintiff chooses a forum other than where he resides, his
choice is not entitled to the same deference as the choice of his home forum. Mather, 408 Ill.
App. 3d at 858; Vivas, 392 Ill. App. 3d at 657. Here, because Claude has a residence in
Illinois and claims it to be his primary residence, his selection of forum deserved substantial
deference. As a result, the trial court reasonably accorded substantial deference to his choice
of forum.
¶ 47 Next, the trial court had to consider both the private and public interest factors in
deciding a forum non conveniens motion without emphasizing any one factor. Mather, 408
Ill. App. 3d at 862; Vivas, 392 Ill. App. 3d at 658. The private interest factors include: “ ‘(1)
the convenience of the parties; (2) the relative ease of access to sources of testimonial,
documentary, and real evidence; and (3) all other practical problems that make trial of a case
easy, expeditious, and inexpensive.’ ” Langenhorst, 219 Ill. 2d at 443 (quoting Guerine, 198
Ill. 2d at 516). “ ‘A defendant seeking transfer is not required to show that the plaintiff’s
choice of forum is inconvenient; rather, transfer is allowed where defendant’s choice is the
substantially more appropriate forum.’ ” Mather, 408 Ill. App. 3d at 859 (quoting Czarnecki
v. Uno-Ven Co., 339 Ill. App. 3d 504, 508 (2003)). After the court considers the totality of
the circumstances, if a defendant proves that the balance of circumstances strongly favors
transfer, her motion should be granted. Mather, 408 Ill. App. 3d at 859.
¶ 48 First, the convenience of the parties here weighs in favor of transfer to France. Danielle
has shown that Claude’s chosen forum is inconvenient for her. See Langenhorst, 219 Ill. 2d
at 450 (“the defendant must show that the plaintiff’s chosen forum is inconvenient to the
defendant”). Danielle currently resides in Lyon, France. Except for limited periods of time,
she has resided in Lyon, France, her entire life. She is a French citizen and only has a French
passport. She has not resided in the United States since November 2008. She does not own
property in the United States and has no family residing in Illinois. The record shows she was
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not residing in Illinois when Claude filed his petition for dissolution of marriage.
¶ 49 Contrary to Claude’s argument, the trial court found that Danielle is not fluent in English
and required the aid of an interpreter during hearings. She is currently retired and receives
a limited income of €309 per month in addition to spousal support. She has liquid assets of
only €12,000. If the case proceeded in Cook County, the financial burden of defending the
case would be great on Danielle. Although Claude agreed to reimburse Danielle for her travel
expenses, it is difficult to measure the nonfinancial inconvenience to Danielle associated
with litigating a case in a foreign country, i.e., the inconvenience of travel, the time spent
away from home and the anxiety of defending an action in a foreign-language-speaking
country. Additionally, the process of arranging for reimbursement or even advance payment
for such expenses would inevitably add another layer of litigation over those expenses.
¶ 50 On the other hand, Claude’s inconvenience in litigating this matter in France would be
substantially less than Danielle’s inconvenience if the matter were litigated in Illinois. Claude
is a French citizen and is fluent in French. He is a retired multimillionaire and owns multiple
properties in Lyon, France. Claude has family in France and travels to France regularly to
visit them. Although Claude said that it is difficult for him to travel long distances because
of his heart condition, the record shows that he split his time in three different countries
during the last three years. He spent at least four months in France in 2009 and at least two
months in France in 2010. Claude also said that he has treating physicians in Paris and Aix
en Provence, France. Based on this evidence, we believe that France is a more convenient
forum for both parties.
¶ 51 Second, the relative ease of access to sources of testimonial, documentary and real
evidence weighs in favor of transfer to France. Claude did not testify to or identify additional
witnesses he intended to present. Danielle, however, testified to numerous witnesses that may
need to testify in support of her maintenance claim or with regard to Claude’s allegations
against her. These witnesses include Claude’s property manager and Claude’s two
accountants. All three witnesses reside in France. Danielle also identified a Ms. DuPont as
another possible witnesses. Ms. Dupont is an accountant who evaluated Claude’s income in
Danielle’s spousal support action filed in Lyon, France. Ms. DuPont also resides in France.
Danielle further testified that she wanted to call her primary physician and gynecologist as
witnesses to rebut Claude’s allegations that she was physically unable to consummate the
marriage. Both of these witnesses reside in France. Assuming all of these witnesses are
willing to appear (see Vivas, 392 Ill. App. 3d at 659 (if the case remains in Illinois, witnesses
in France are not compelled to appear in the United States)), the additional cost and difficulty
of obtaining their attendance in Illinois strongly favors transfer to France. Mather, 408 Ill.
App. 3d at 860.
¶ 52 Contrary to Claude’s argument, we need not overlook the fact that most of Danielle’s
potential witnesses reside in France because she did not identify them at the outset of the case
in her answers to Claude’s interrogatories.
¶ 53 In addition to this testimonial evidence, all documents and real evidence are also located
in France. Claude’s sources of rental and retirement income originate entirely in France.
Claude owns multiple rental properties in Lyon, France, and has a 50% interest in a house
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in Perpignan, France. Claude also maintains a French bank account. As mentioned,
compulsory process of Claude’s financial information would be difficult if not impossible
if the trial were held in Illinois. In considering this factor, however, we are mindful that the
location of documents and records has become a less significant factor in forum non
conveniens analyses given that documents can easily be sent electronically to Illinois. Vivas,
392 Ill. App. 3d at 659; Woodward, 368 Ill. App. 3d at 834.
¶ 54 Finally, the court was required to consider “ ‘all other practical problems that make trial
of a case easy, expeditious, and inexpensive.’ ” Langenhorst, 219 Ill. 2d at 443 (quoting
Guerine, 198 Ill. 2d at 516). This factor also weighs in favor of transfer to France. The record
shows that both parties required the services of an interpreter during the hearing on
Danielle’s motion to dismiss. The court noted in its written order that the hearing took “2 to
3 times longer due to the use of an interpreter.” Danielle testified that she has to have an
interpreter with her to communicate to her lawyer and that she spent about €4,000 to translate
legal documents.
¶ 55 For these reasons, we cannot say that the trial court abused its discretion in finding that
the private interest factors strongly favor transfer to France.
¶ 56 The trial court was also required to consider the public interest factors. These factors are:
“ ‘(1) the interest in deciding controversies locally; (2) the unfairness of imposing trial
expense and the burden of jury duty on residents of a forum that has little connection to the
litigation; and (3) the administrative difficulties presented by adding litigation to already
congested court dockets.’ ” Vivas, 392 Ill. App. 3d at 660 (quoting Langenhorst, 219 Ill. 2d
at 443-44).
¶ 57 First, the public interest factor of deciding marital controversies locally favors transfer
to France. “In domestic relations cases where the marriage occurred in the same county that
the marital home was located and the children resided, there is a strong tie to that county.”
Mather, 408 Ill. App. 3d at 861. Here, there is not a strong tie to Cook County. The parties
were married in civil and religious ceremonies in France. Although the parties briefly resided
in Illinois during the marriage, they also traveled back and forth to France. The parties had
no children together. The parties’ main sources of income are in France. Although Claude
has property in Illinois, it was purchased before the parties’ marriage and likely will not be
considered marital property. The most likely contested properties for the purposes of this
action are located in France. While Claude argues that both parties are permanent legal
residents of the United States, he seems to overlook the fact that both parties are also French
citizens and that Danielle has not resided in Illinois since November 2008. Accordingly, this
matter has stronger ties to France than to Illinois.
¶ 58 Second, the unfairness of imposing trial expenses and the burden of jury duty on
residents of a forum that has little connection to the litigation favors transfer. Although this
is not a jury matter, Illinois has such minimal ties to this case that it could be considered
unfair to impose the expense of a trial on its citizens. See Mather, 408 Ill. App. 3d at 861.
The parties are both French citizens who married in France and have no minor children.
Although Claude owns property in Illinois and pays income and real estate tax in the State
of Illinois, France has more of a connection to the issues expected to be litigated.
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¶ 59 Third, comparative congestion in the respective courts is not a factor in this case where
neither party presented evidence that there is less or more congestion in French courts.
Mather, 408 Ill. App. 3d at 861; Berbig v. Sears Roebuck & Co., 378 Ill. App. 3d 185, 189
(2007) (“court congestion is a relatively insignificant factor, especially where the record does
not show the other forum would resolve the case more quickly”). Additionally, our supreme
court has held that “[w]hen deciding forum non conveniens issues, the trial court is in the
better position to assess the burdens on its own docket.” Langenhorst, 219 Ill. 2d at 451. As
a result, we cannot say that the trial court erred in giving no weight to this factor. Mather,
408 Ill. App. 3d at 861.
¶ 60 In light of this evidence, the trial court did not abuse its discretion in finding that the
public interest factors strongly favor transfer to France.
¶ 61 After considering the private and public interest factors, the court was required to balance
these factors without emphasizing any one factor. Langenhorst, 219 Ill. 2d at 443. On review,
we will reverse the trial court’s decision only if the court abused its discretion. Mather, 408
Ill. App. 3d at 862.
¶ 62 Here, we find that the trial court did not abuse its discretion in balancing the relevant
factors. The trial court properly found that Claude’s choice of forum merited substantial
deference, despite the fact that he owns property in both Illinois and France. The court did
not err in finding that the private and public interest factors weighed strongly in favor of
transfer. Mather, 408 Ill. App. 3d at 862; Langenhorst, 219 Ill. 2d at 448; Vivas, 392 Ill. App.
3d at 663.
¶ 63 In reaching this conclusion, we reject Claude’s argument that the court’s ruling deprived
him of his constitutional right to obtain a remedy in a court of law. The record shows the
court dismissed Claude’s petition pursuant to the conditions set forth in Rule 187(c)(2).
Those conditions are:
“(i) [I]f [Claude] elects to file the action in another forum within six months of
the dismissal order, [Danielle] shall accept service of process from that court; and
(ii) if the statute of limitations has run in the other forum, [Danielle] shall waive
that defense.
If [Danielle] refuses to abide by these conditions, the cause shall be reinstated for
further proceedings in the court in which the dismissal was granted. If the court in the
other forum refuses to accept jurisdiction, [Claude] may, within 30 days of the final order
refusing jurisdiction, reinstate the action in the [circuit court of Cook County].”
See Ill. S. Ct. R. 187(c)(2)(i), (ii) (eff. Aug. 1, 1986).
¶ 64 The doctrine of forum non conveniens contemplates a plaintiff’s right to a remedy and
provides that, in addition to having the power to hear the case, the alternative forum must
also afford the plaintiff an adequate remedy. Stonnell, 132 Ill. App. 3d at 1045-46. However,
the alternative forum need not provide the exact same remedy and may not be circumvented
because foreign law may be less favorable. Philips Electronics, 312 Ill. App. 3d at 1085.
Rather, the alternative forum may be avoided when “the application of the foreign law
presents a danger that plaintiffs would be deprived of any remedy or treated unfairly.”
Phillips Electronics, 312 Ill. App. 3d at 1085. Here, there is no reason to believe that French
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law presents such a danger. This is especially so where Claude has twice before been
awarded a divorce under French law. Therefore, the trial court did not violate Claude’s
constitutional rights when it dismissed his petition.
¶ 65 CONCLUSION
¶ 66 For the reasons stated, we affirm the trial court’s order granting Danielle’s motion to
dismiss Claude’s petition on forum non conveniens grounds.
¶ 67 Affirmed.
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