No. 2--03--0168

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT	4/11/03 DRAFT

_________________________________________________________________

In re MARRIAGE OF				) Appeal from the Circuit

MARIAMMA T. IGNATIUS,			) Court of Du Page County.

							)

		Petitioner,			)

							)

and							) No. 01--D--321

THARAYIL O. IGNATIUS,			)

							)

		Respondent-Appellant,	)

							)

(Susan IGNATIUSgnatius, as Ex'recutor of 		)

 the Estate of Mariamma Ignatius,	)

 Deceased, and as Trustee of the	)

 Mariamma T. Ignatius Declaration	) Honorable

 of Trust, Respondent- and Intervenor-		) James J. Konetski,

 Intervenor- Appellee).					) Judge, Presiding.

_________________________________________________________________

	PRESIDING JUSTICE HUTCHINSON delivered the opinion of the

court:

	This interlocutory appeal is brought pursuant to Supreme Court

Rule 307(a)(1) (188 Ill. 2d R. 307(a)(1)) and involves the

propriety of enforcing an injunctive order in the context of a

dissolution of marriage proceeding filed by petitioner, Mariamma T.

Ignatius, against respondent, Tharayil O. Ignatius.  Respondent

appeals from the trial court's orders entered following the death

of petitioner and the dismissal of the cause of action.  We affirm

in part and vacate in part.

	At the outset, we note that respondent's counsel has violated

Supreme Court Rule 342(a) (155 Ill. 2d R. 342(a)) by failing to

include a copy of the notice of appeal with the appendix to his appellate brief.  Where an appellant's brief fails to comply with

Ssupreme Ccourt rules, this court has inherent authority to dismiss

the appeal for noncompliance.  Kuzmanich v. Cobb, 276 Ill. App. 3d 634, 636 (1995).  In the present case, we do not believe that the

sanction of dismissal is warranted; rather, it is our hope that our

discussion here will serve as an admonition to attorneys practicing

before this court to comply with our supreme court's rules.

	Petitioner and respondent were married in January 1961, and

two children were born of the marriage, both now adults.  In

February 2001 petitioner filed a petition seeking a dissolution of

marriage from respondent.  During the course of the dissolution

proceeding, the trial court enjoined the parties from transferring

or otherwise disposing of the marital assets, including the marital

residence, two apartment buildings, personal property in the

marital residence, and other property contained in a safe deposit

box.

	Following a hearing on May 1, 2002, the trial court granted a

motion brought by petitioner to modify the injunctive order.  At

the time of the hearing, petitioner had been diagnosed with bone

cancer and was about to undergo medical treatment.  Petitioner

sought to modify the injunction for estate planning purposes. 

Petitioner requested permission to sever the joint ownership of

marital assets so that she could plan the disposition of her assets

without alienating them from the marital estate.  With this

modification, petitioner asked the trial court to continue the

injunctive order in full force and effect.  The trial court

modified the injunctive order to the extent that it ordered "[a]ll assets jointly held by the parties shall be transferred into

tenancy in common interests as soon as practicable."

	On July 20, 2002, petitioner died.  Shortly thereafter,

respondent moved the trial court to dismiss petitioner's petition

for dissolution of marriage.  The record reflects no judgment of

dissolution had been entered.  In September 2002 Susan Ignatius

(intervenor), as executor and trustee of petitioner's estate and

declaration of trust, requested leave to intervene in the

proceedings, which the trial court granted.  In her petition to

intervene, intervenor requested that the trial court enforce the

terms of the preliminary injunction as modified by the May 1, 2002,

order.  In her prayer for relief, intervenor requested the trial

court to perform an accounting of the property and divide the joint

marital property in accordance with the terms of the May 1, 2002,

order.

	On December 5, 2002, the trial court entered a memorandum

opinion and order.  It found that petitioner died without having

completed the transfer of all jointly held marital assets.  Relying

on New York Life Insurance Co. v. Sogol, 311 Ill. App. 3d 156 (1999), the trial court determined that the May 1, 2002,

"modification of a preliminary injunction entered [pursuant] to the

provisions of 750 ILCS 5/501(a)(2) of the Illinois Marriage and

Dissolution of Marriage Act" survived the death of petitioner.  The

trial court granted intervenor's petition and ordered an accounting

of the parties' property and a division of the parties' joint

marital property in accordance with its May 1, 2002, order.

	On December 13, 2002, respondent filed a motion for

clarification, requesting that the trial court clarify the time

frame in which the accounting was to occur.  Respondent also asked

the trial court to resolve the issues raised in his previously

filed motion to dismiss, in which he sought the dismissal of the

dissolution petition and the dissolution of the prior injunctive

orders as a result of petitioner's death and the abatement of the

dissolution proceeding.

	On January 10, 2003, the trial court entered its memorandum

opinion and order.  The trial court granted respondent's motion to

dismiss petitioner's dissolution petition but denied respondent's

request to dissolve the prior injunctive orders.  The trial court

explained that the injunctive orders survived the abatement of the

dissolution proceedings.  It further ordered the accounting to

commence immediately.  Respondent filed a timely notice of

interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (188

Ill. 2d R. 307(a)(1)), challenging the trial court's authority to

continue the injunction and order an accounting and a division of

assets following the dismissal of the cause of action.

	Before reaching the merits of the appeal, we must first

address intervenor's claim that respondent has waived appellate

review of the trial court's May 1, 2002, injunctive order. 

Intervenor asserts that, in his response to intervenor's petition

for intervention, respondent requested the injunctive order entered

only in 2001 be dissolved and, therefore, he should be barred from

seeking review of the May 2002 injunctive order.  Intervenor also

claims that the trial court's orders of December 5, 2002, and January 10, 2003, are separate and distinct and, as such,

respondent should be allowed only to challenge only the January 10,

2003, order.

	In Sarah Bush Lincoln Health Center v. Berlin, 268 Ill. App. 3d 184, 186-87 (1994), rev'd on other grounds, 179 Ill. 2d 1 (1997), the reviewing court determined it could consider, in an

interlocutory appeal from a preliminary injunction, whether the

trial court erred in denying a motion for substitution of judge. 

The reviewing court noted the propriety of an order granting or

denying interlocutory injunctive relief could be determined only in

an appeal brought pursuant to Supreme Court Rule 307(a)(1) (155

Ill. 2d R. 307(a)(1)).  Berlin, 268 Ill. App. 3d at 187.  It held, however, the scope of review under Rule 307 included the review of

any prior error bearing directly upon the question of whether the

order on appeal was proper.  Berlin, 268 Ill. App. 3d at 187.

	In the present case, the May 1, 2002, injunctive order was a

modification of a prior injunctive order and was predicated on an

injunctive order entered in February 2001.  Had the trial court

granted respondent's motion and dissolved the injunctive order

entered in 2001, the modification order entered on May 1, 2002,

would certainly have been affected as well.  Accordingly, the scope

of our jurisdiction to review the trial court's rulings is not

limited to the orders entered only in 2001, despite respondent's

failure to specify the other ruling in his notice of appeal,

because they are all steps in the procedural progression leading to

the specified judgment on appeal.  See Berlin, 268 Ill. App. 3d at 187.

	Turning to the merits, respondent contends that the trial

court erred when it entered the December 5, 2002, and the January

10, 2003, orders denying his motion to dissolve the prior

injunctive orders, continuing the injunction, and ordering an

accounting.  According to respondent, the injunctions should have

been dissolved because the trial court dismissed the cause of

action following the death of petitioner.  Respondent also contends

that the trial court erred when it ordered an accounting and a

division of the parties' assets because this, too, was subsequent

to the dismissal of the underlying cause of action.

	Intervenor counters that an injunction survives abatement of

the dissolution proceedings, citing New York Life, 311 Ill. App. 3d 156, in support of her assertion.  Intervenor maintains that the

trial court's January 10, 2003, order properly effectuates the

enforcement of the May 1, 2002, order.  Intervenor additionally

responds that the trial court did not distribute any property but

that it merely provided for a change in the way that title was

held.  Finally, intervenor argues that equity demands the

injunction remain in full force and effect.

	Generally, in an interlocutory appeal brought pursuant to Rule

307(a)(1), the only question before this court is whether a

sufficient showing was made to the trial court to sustain its order

granting, denying, or modifying the interlocutory relief.  Keefe- Shea Joint Venture, Inc. v. City of Evanston, 332 Ill. App. 3d 163, 168 (2002), citing Postma v. Jack Brown Buick, Inc., 157 Ill. 2d 391, 399 (1993).  However, where a party's right to injunctive

relief is dependent on the resolution of a question of law, a reviewing court determines the question independently of the trial

court's judgment.  Hamlin v. Harbaugh Enterprises, Inc., 324 Ill. App. 3d 612, 616 (2001), citing In re Lawrence M., 172 Ill. 2d 523 (1996).

	Respondent is not appealing the entry of earlier injunctive

orders.  Rather, the parties have directed their arguments toon the

questions concerning the continuing viability of the injunctive

order and the trial court's authority to enforce the injunctive

order and to order an accounting and a division of property

following the dismissal of the petition for dissolution.  Because

these are legal questions, our review is de novo.  See Hamlin, 324 Ill. App. 3d at 616.

	Section 401(b) of the Illinois Marriage and Dissolution of

Marriage Act (the Marriage Act) (750 ILCS 5/401(b) (West 2000))

provides in relevant part:

		"Judgment shall not be entered unless, to the extent it

has jurisdiction to do so, the court has considered, approved,

reserved or made provision for *** the maintenance of either

spouse and the disposition of property.  The court may enter

a judgment ofor dissolution that reserves any of these issues

either upon (i) agreement of the parties, or (ii) motion of

either party and a finding by the court that appropriate

circumstances exist.

		The death of a party subsequent to entry of a judgment

for dissolution but before judgment on reserved issues shall

not abate the proceedings."  750 ILCS 5/401(b) (West 2000).

The Marriage Act is a statutory enactment from our legislature. 

Accordingly, a trial court's authority to act in dissolution

proceedings is conferred only by statute.  In re Marriage of Rhodes, 326 Ill. App. 3d 386, 388 (2001).  The trial court may not rely upon its general equity powers.  In re Marriage of Burkhart, 267 Ill. App. 3d 761, 765 (1994).

	In Brandon v. Caisse, 145 Ill. App. 3d 1070 (1986), the wife petitioned for a dissolution of marriage from her husband.  At the

close of the evidence and before final judgment, the wife died. 

The trial court allowed the executor of the wife's estate to be

substituted into the proceeding.  Approximately two months after

the wife died, the trial court entered its judgment for dissolution

and an order distributing the property.  Brandon, 145 Ill. App. 3d at 1070-71.  The reviewing court reversed the trial court's

judgment, holding that a cause of action for dissolution of

marriage abated upon the death of a party prior to judgment in the

trial court,t and, therefore, removed from the trial court its

jurisdiction over all aspects of the marriage relationship. 

Brandon, 145 Ill. App. 3d at 1072-73.  Similarly, in In re Marriage of Black, 155 Ill. App. 3d 52 (1987), the reviewing court affirmed the trial court's refusal to allow substituted parties to proceed

in a dissolution of marriage action when the husband in the

dissolution proceeding died prior to an entry of judgment.  Black, 155 Ill. App. 3d at 53-54.  

	In the present case, there is no indication in the record that

the trial court entered a judgment of dissolution of the marriage

prior to petitioner's death.  A trial court's judgment of dissolution is essential to preclude abatement of the proceedings. 

See 750 ILCS 5/401(b) (West 2000); Black, 155 Ill. App. 3d at 54.  "It has long been the rule in Illinois that the death of either

party to a divorce action prior to final judgment deprives the

circuit court of jurisdiction over all aspects of the marriage

relationship."  In re Estate of Chandler, 90 Ill. App. 3d 674, 677 (1980), citing Bushnell v. Cooper, 289 Ill. 260 (1919).  Under the principles articulated in Brandon, Black, and Chandler, because no judgment of dissolution was entered here, the cause of action

abated upon the death of petitioner in July 2002.  As a result, the

trial court lost its jurisdiction to rule on all of the other

matters concerning petitioner and respondent's marriage

relationship.  See Chandler, 90 Ill. App. 3d at 677.

	This case is unlike Copeland v. McLean, 327 Ill. App. 3d 855 (2002), wherein the wife, whose health was deteriorating, filed a

dissolution petition against her husband.  The wife sought an

immediate dissolution, alleging that, because of her failing health

and because the majority of the marital assets were held in joint

tenancy with her husband, she wished to " 'dispose of her just

portion of the assets' " prior to her death.  Copeland, 327 Ill. App. 3d at 858.  The trial court entered a bifurcated judgment of

dissolution, reserving all other issues, and the husband appealed. 

The reviewing court affirmed, holding that the impending death of

a party is an " 'appropriate circumstance' " for the entry of a

bifurcated judgment of dissolution.  Copeland, 327 Ill. App. 3d at 866.  Because the trial court had entered a judgment of dissolution

prior to the death of the wife, the dissolution proceeding had not abated, and the trial court retained jurisdiction to rule on the

reserved issue of property division even after the wife's death.  Copeland, 327 Ill. App. 3d at 866.

	In the present case, intervenor was essentially asking the

trial court to carry on with the wishes of petitioner and divide

the marital property as if petitioner had survived.  The Marriage

Act contains no provision authorizing the trial court to act in

this manner without the prior entry of a judgment of dissolution. 

Because petitioner died and because no judgment for dissolution had

been entered, the dissolution proceeding abated.  Marital property

cannot be divided in a proceeding that no longer exists.  See

Black, 155 Ill. App. 3d at 53-54; Brandon, 145 Ill. App. 3d at 1072-73.  Pursuant to Chandler, the trial court lost jurisdiction to rule on all other aspects of the marital relationship, including

the parties' property issues.  Therefore, the trial court should

not have conferred upon itself continuing jurisdiction to order an

accounting and a division of property when there was no longer a

dissolution proceeding.

	The trial court properly granted respondent's motion to

dismiss petitioner's petition for dissolution because the cause of

action had abated upon the death of petitioner and no judgment of

dissolution had been entered.  We therefore affirm that portion of

the judgment.  However, we vacate the trial court's orders calling

for an accounting and a division of the property in accordance with

the May 1, 2002, order.

	Having said that, we need to address the effect of our ruling vis-a-vis the May 1, 2002, modification of the injunctive order.  Relying on New York Life, intervenor asserts that an injunction survives abatement of the dissolution proceedings and that the

trial court should have retained jurisdiction to enforce the

injunction.  Respondent argues that injunctions are terminated on

the dismissal of a cause of action, citing section 501(d)(3) of the

Marriage Act (750 ILCS 5/501(d)(3) (West 2000)).

	In New York Life, 311 Ill. App. 3d 156, the issue was whether a preliminary injunction issued in a dissolution proceeding, which

had abated upon the death of one of the parties, survived

abatement.  The trial court had enjoined the husband, Bruce Muslin,

from transferring or otherwise disposing of property of the

parties.  Bruce, however, during the dissolution proceedings,

effected a change of beneficiaries from his wife Linda Muslin and

children to that of his girlfriend Marsha Sogol.  Bruce died; the wife

never prosecuted the petition for dissolution to a final judgment. 

The plaintiffs, two insurance companies, filed an action in

interpleader against Linda Muslin and Marsha Sogol to determine

which party should receive the proceeds of policies of decedent

Bruce Muslin.  New York Life, 311 Ill. App. 3d at 157-58.

	The trial court awarded the proceeds to Sogol, and the

reviewing court reversed.  The reviewing court noted that, under

section 501(d)(3) of the Marriage Act (750 ILCS 5/501(d)(3) (West

1998)), the preliminary injunction against Bruce did not terminate

until his death.  The reviewing court further noted that, until his

death, Bruce did not have the power or the authority to change the

beneficiary of the policies because the preliminary injunction was

still in effect.  It held that, while Bruce's death abated the dissolution of marriage action, it did not abate the preliminary

injunction.  New York Life, 311 Ill. App. 3d at 160.

	To reconcile the rationale and holding in New York Life with the circumstances of the present case, we must look to the context

in which the proceedings were brought.  The New York Life action was not brought or litigated as part of the dissolution action

following the death of Bruce.  Rather, it was an independent suit

to enforce the terms of the preliminary injunction entered during

the course of the dissolution proceedings.  This is a critical

distinction.  In the present case, intervenor sought within the context of the dissolution proceeding to protect petitioner's ownership interest in the marital property accumulated during the

parties' nearly 40-year marriage but not transferred into tenancy

in common before her death.  However, because the trial court had

not entered a judgment of dissolution, the dissolution proceeding

abated following petitioner's death, and the trial court lost its

jurisdiction to decide the property issue.

	Our decision not to allow intervenor to proceed with her

litigation in the context of the dissolution proceeding is

supported by a review of two other cases.  In Koenings v. First National Bank & 

TurrustT, 145 Ill. App. 3d 14 (1986), the children of a divorced couple were permitted to bring an independent suit

outside the context of the dissolution proceedings to enforce the

terms of a property settlement agreement.  In Milenkovic v. Milenkovic, 93 Ill. App. 3d 204 (1981), the child custody provisions of the Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par.

601(b)(2)) conferred continuing jurisdiction on the trial court to award custody to an intervening neighbor, despite abatement of the

dissolution proceedings, which occurred when the husband shot the

wife.  In the present case, there was no other provision within the

Marriage Act to confer the trial court with continuing jurisdiction

to allow intervenor to proceed in her endeavor to protect and

recover her mother's assets.

	Moreover, section 501(d)(3) of the Marriage Act provides that

temporary orders terminate "when the final judgment is entered or

when the petition for dissolution of marriage *** is dismissed." 

750 ILCS 5/501(d)(3) (West 2000).  Therefore, in the context of the

instant dissolution proceeding, the injunctive orders terminated

when the trial court granted respondent's motion to dismiss

petitioner's petition for dissolution.

	In so holding, we do not imply that intervenor may not seek

alternative avenues to accommodate the wishes of petitioner.  In

her capacity as executor of petitioner's estate, intervenor may

have a cause of action for injunctive relief outside of the

Marriage Act, such as an independent suit for an injunction.  See

735 ILCS 5/11--101 et seq. (West 2000).  Additionally, although the dissolution action abated, it is possible that the issue of

respondent's alleged violation of the preliminary injunction

remains viable for resolution in a probate action.

	Section 16--1 of the Probate Act of 1975 (the Probate Act)

(755 ILCS 5/16--1 (West 2000)) allows a party to file a citation on

behalf of the estate to recover property and discover information. 

A trial court, in such proceedings, is authorized to determine all

questions of title, claims of adverse title, and right of property, and may enter such orders and judgments as the case may require.  In re Estate of Denler, 80 Ill. App. 3d 1080, 1091-92 (1980).  The validity of the court orders, and therefore any arguments

respecting their validity or violation, does not end with closure

of the dissolution case in which the orders were entered.  See New York Life, 311 Ill. App. 3d 156.  Courts have allowed suits concerning injunctions to lie in this section.  See Loftis v. Loftis, 225 Ill. App. 478 (1922) (regarding a transfer of stock purportedly belonging to an estate).

	For the foregoing reasons, we affirm the order of the circuit

court of Du Page County dismissing the cause of action but vacate

the orders calling for an accounting and a division of the marital

property.

	Affirmed in part and vacated in part.

	HUTCHINSON, P.J., with BOWMAN and GILLERAN JOHNSON, JJ., concurring.