Illinois Official Reports

Appellate Court

Marzouki v. Najar-Marzouki, 2014 IL App (1st) 132841

Appellate Court 

Caption

JAMEL MARZOUKI, Petitioner-Appellant, v. OLFA NAJARMARZOUKI, Respondent-Appellee.

District & No. First District, Fourth Division

Docket No. 1-13-2841

Filed May 15, 2014

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

The trial court’s denial of petitioner’s motion to stay proceedings on

respondent’s motion to allocate the parties’ marital assets was 

affirmed, since the record showed the parties’ marriage was dissolved 

by a French court, that court ordered the parties to liquidate and 

distribute the assets out of court, no proceedings were pending in the 

French court, petitioner had registered the French judgment in the 

Illinois court, and he failed to meet his burden of showing that the 

Illinois court’s denial of his motion for a stay was an abuse of 

discretion.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 13-D2-30088; the 

Hon. Mark Lopez, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Lawrence W. Byrne and Naureen Amjad, both of Pedersen & Houpt, 

of Chicago, for appellant.

Mitchell B. Gordon and Maria A. Citino Sfreddo, both of Bradford & 

Gordon, LLC, of Chicago, for appellee.
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Panel JUSTICE EPSTEIN delivered the judgment of the court, with opinion.

Justices Fitzgerald Smith and Lavin concurred in the judgment and 

opinion.

OPINION

¶ 1 Petitioner, Jamel Marzouki (Jamel), filed this interlocutory appeal, pursuant to Illinois 

Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010), from the August 14, 2013 order of the 

circuit court of Cook County denying his motion for a stay and to enjoin discovery and trial.

He further appeals all underlying orders including the July 22, 2013 order of the circuit court 

denying his motion to dismiss respondent’s motion to allocate the marital estate. For the 

reasons that follow, we conclude that we lack jurisdiction to address the circuit court’s denial 

of Jamel’s motion to dismiss, and we affirm the August 14, 2013 order denying his motion 

for a stay and to enjoin discovery and trial.

¶ 2 BACKGROUND

¶ 3 Jamel and respondent, Olfa Najar-Marzouki (Olfa), are French citizens. Both were born 

in Tunisia and married there in 1998. This was Jamel’s third marriage and Olfa’s first. Jamel 

and his first wife divorced in 1989 in France. Jamel and his second wife divorced in 1996 in 

Wisconsin. In 1999, Jamel and Olfa moved to Illinois. In 2002, the couple purchased a 

residence in Evanston, which they continue to own jointly. Jamel and Olfa have two children 

and both were born in Illinois. In July 2010, they moved with their children to France, where 

Jamel worked remotely for his Illinois-based employer. Olfa worked in France as a medical 

researcher. While in France, they rented out their Evanston residence.

¶ 4 In January 2011, Jamel filed for divorce from Olfa. In December 2011, the couple and 

their children returned to the United States. On November 26, 2012, the family judge of the 

French court entered a seven-page judgment of dissolution which states, in pertinent part:

“REASONS FOR THE DECISION

On the divorce

Articles 233 and 234 of the civil code stipulate that divorce may be requested by 

either spouse or by both when they accept the principle of terminating the marriage 

without taking into consideration the facts that caused it.

Pursuant to article 1124 of the new code of civil procedure, the judge pronounces 

divorce on the sole grounds of mutual acceptance by the spouses.

In the present case, both spouses have stated that they accept the termination of 

the marriage in the conditions provided for by article 1124 of the new code of civil 

procedure, on 28 November 2011 for Olfa NAJAR and on 27 September 2011 for 

Jamel MARZOUKI, so that the divorce is pronounced pursuant to articles 233 and 

234 of the civil code.”

¶ 5 In addition to pronouncing the divorce, the court ordered that “the parents shall exercise 

joint parental authority with the children’s usual place of residence being with their father.” 
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The court further “order[ed] the liquidation and distribution out of the spouses’ marital 

rights.” The order also “[i]nvites the parties to settle this liquidation and distribution out of 

court with the assistance of a notary of their choice.” (Emphasis in original.)

¶ 6 The instant Illinois action arose on or about February 21, 2013, when Jamel filed a 

petition in the circuit court of Cook County to enforce the foreign judgment. Also on 

February 21, 2013, Jamel filed a “Petition to Establish Child Support.” On March 29, 2013, 

Olfa filed a “Motion to Allocate Marital Estate.” On April 29, 2013, Olfa filed her response 

to Jamel’s petition to establish child support. On May 8, 2013, pursuant to section 

2-619(a)(3) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(3) (West 

2010)), Jamel filed a “Motion to Dismiss [Olfa’s] Motion to Allocate Marital Estate,” which 

the trial court denied on July 22, 2013. At some point, Jamel also filed a “Motion for Stay 

and to Enjoin Discovery and Trial on Respondent’s Motion to Allocate Marital Assets.” 

Jamel has included an undated copy of the motion in the appendix to his brief but also 

concedes that there is no copy in the record. Jamel filed his motion to stay under section 

2-619(a)(3) of the Code (735 ILCS 5/2-619(a)(3) (West 2010)) and section 501 of the Illinois 

Marriage and Dissolution of Marriage Act, which provides for a preliminary injunction under 

certain circumstances (750 ILCS 5/501 (West 2010)). After a hearing, the trial court denied 

this motion. The record contains no transcript of the hearing. Jamel filed this interlocutory 

appeal on August 13, 2013.

¶ 7 JURISDICTION

¶ 8 This court has jurisdiction to review appeals from final judgments only, unless a supreme 

court rule or statute provides appellate jurisdiction. Van Der Hooning v. Board of Trustees of

the University of Illinois, 2012 IL App (1st) 111531, ¶ 6. Jamel filed this appeal pursuant to 

Illinois Supreme Court Rule 307(a)(1), which states that “[a]n appeal may be taken to the 

Appellate Court from an interlocutory order of court *** granting, modifying, refusing, 

dissolving, or refusing to dissolve or modify an injunction.” Ill. S. Ct. R. 307(a)(1) (eff. Feb. 

26, 2010). This court has consistently held that a stay is injunctive in nature and a stay order 

is immediately appealable under Rule 307(a)(1). Hastings Mutual Insurance Co. v. Ultimate 

Backyard, LLC, 2012 IL App (1st) 101751, ¶ 28; TIG Insurance Co. v. Canel, 389 Ill. App. 

3d 366, 371 (2009). We have appellate jurisdiction to review the interlocutory order of

August 14, 2013, denying Jamel’s motion to stay.

¶ 9 Jamel also seeks to appeal “all underlying orders including the order entered July 22, 

2013 denying [his] Motion to Dismiss.” This order is not appealable. “ ‘An appeal under 

Rule 307 does not open the door to a general review of all orders entered by the trial court up 

to the date of the order that is appealed.’ [Citation.]” Rosinia v. Gusmano, 90 Ill. App. 3d 

882, 887 (1980). A trial court’s denial of a motion to dismiss is an interlocutory order, but it 

is one that is not final and appealable. Desnick v. Department of Professional Regulation, 171 

Ill. 2d 510, 540-41 (1996); Van Der Hooning, 2012 IL App (1st) 111531, ¶¶ 6-7. This court is 

without jurisdiction to consider whether the circuit court erred in denying Jamel’s motion to 

dismiss.

¶ 10 ILLINOIS SUPREME COURT RULE 341

¶ 11 Olfa has argued that this appeal should be dismissed based on Jamel’s failure to adhere to 

the requirements set forth in Illinois Supreme Court Rule 341. Ill. S. Ct. R. 341 (eff. Feb. 6, 
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2013). Rule 341 provides that all briefs should contain a statement of facts section which 

includes “appropriate reference to the pages of the record on appeal.” Ill. S. Ct. R. 341(h)(6) 

(eff. Feb. 6, 2013). Rule 341 further requires that the brief contain an argument “which shall 

contain the contentions of the appellant and the reasons therefor, with citation of the 

authorities and the pages of the record relied on.” Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013).

We agree with Olfa that Jamel’s brief does not comply with these requirements.

¶ 12 As we have explained:

“Our rules of procedure are rules and not merely suggestions. [Citation.]

Consequently, Rule 341’s mandates detailing the format and content of appellate 

briefs are compulsory. [Citation.] *** Where an appellant’s brief contains numerous 

Rule 341 violations and, in particular, impedes our review of the case at hand because 

of them, it is our right to strike that brief and dismiss the appeal. [Citations.]

Ultimately, we are not a depository in which the appellant may dump the burden of 

argument and research for his cause on appeal. [Citation.]” (Internal quotation marks 

omitted.) Rosestone Investments, LLC v. Garner, 2013 IL App (1st) 123422, ¶ 18.

As Olfa correctly notes, although an appellant may present evidence favorable to his position 

in the statement of facts, he cannot do so at the cost of this court’s understanding of the case.

See In re R.G., 165 Ill. App. 3d 112, 115 (1988); Midland Hotel Corp. v. Reuben H. 

Donnelley Corp., 149 Ill. App. 3d 53, 57 (1986). Additionally, “[i]t is axiomatic that [a] 

reviewing court is entitled to have the issues clearly defined and supported by pertinent 

authority and cohesive arguments [citation], and that failure to develop an argument results in 

waiver. [Citation.]” (Internal quotation marks omitted.) Sexton v. City of Chicago, 2012 IL 

App (1st) 100010, ¶ 79. In view of these principles, we believe that we are entitled to strike 

Jamel’s brief or dismiss his appeal based on his violations of Rule 341. We choose not to do 

so, however, and, in our discretion, will review this appeal. A reviewing court has the choice 

to review the merits, even in light of multiple Rule 341 mistakes. Rosestone Investments, 

LLC, 2013 IL App (1st) 123422, ¶ 19 (citing In re Estate of Jackson, 354 Ill. App. 3d 616,

620 (2004)).

¶ 13 STANDARD OF REVIEW

¶ 14 When a party brings a motion under section 2-619(a)(3) of the Code, the trial court has 

discretion to determine if a dismissal or stay is warranted. In re Marriage of Murugesh, 2013 

IL App (3d) 110228, ¶ 20. Thus, we review the trial court’s order denying a motion to stay 

under the abuse of discretion standard. Hastings Mutual Insurance Co., 2012 IL App (1st) 

101751, ¶ 29. “In determining whether the circuit court abused its discretion, this court 

should not decide whether it agrees with the circuit court’s decision, but rather, should 

determine whether the circuit court acted arbitrarily without the employment of conscientious 

judgment or *** exceeded the bounds of reason and ignored recognized principles of law so 

that substantial prejudice resulted. [Citation.]” (Internal quotation marks omitted.) Id. Under 

the abuse of discretion standard, the reviewing court’s role is not to substitute its judgment 

for that of the trial court, or even to determine whether the trial court acted wisely. Midas 

International Corp. v. Mesa, S.p.A., 2013 IL App (1st) 122048, ¶ 22.
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¶ 15 ANALYSIS

¶ 16 “Section 2-619(a)(3) of the Code allows for a stay or dismissal of a cause of action if 

‘there is another action pending between the same parties for the same cause.’ [Citation.]” 

In re Marriage of Murugesh, 2013 IL App (3d) 110228, ¶ 19. “The purpose of section 

2-619(a)(3) is ‘to avoid duplicative litigation.’ [Citation.]” Id. Even when the “same cause”

and “same parties” requirements are met, a circuit court is not automatically required to 

dismiss or stay a proceeding under section 2-619(a)(3). In re Marriage of Murugesh, 2013 IL 

App (3d) 110228, ¶ 20; accord May v. SmithKline Beecham Clinical Laboratories, Inc., 304 

Ill. App. 3d 242, 247 (1999) (“A motion to stay need not be automatically granted simply 

because the same cause involving the same parties is pending in another jurisdiction.” (citing 

Kellerman v. MCI Telecommunications Corp., 112 Ill. 2d 428, 446 (1986))). Our supreme 

court has explained that, notwithstanding the policy of avoiding duplicative litigation, 

“multiple actions in different jurisdictions *** may be maintained where the circuit court, in 

a sound exercise of its discretion, determines that both actions should proceed.” A.E. Staley 

Manufacturing Co. v. Swift & Co., 84 Ill. 2d 245, 253 (1980).

¶ 17 A party seeking a stay bears the burden of proving adequate justification for the stay.

May v. SmithKline Beecham Clinical Laboratories, Inc., 304 Ill. App. 3d 242, 246 (1999).

The party seeking the stay must justify it by clear and convincing circumstances outweighing 

its potential harm to the opposing party. Reed v. Doctor’s Associates, Inc., 331 Ill. App. 3d 

618, 627 (2002). To that end, he “must make out a clear case of hardship or inequity in being 

required to go forward, if there is even a fair possibility that the stay for which he prays will 

work damage to someone else. [Citation.]” (Internal quotation marks omitted.) May, 304 Ill. 

App. 3d at 246-47.

¶ 18 Jamel argues that a stay “would be appropriate to allow the French court to complete its 

proceedings.” As Olfa notes, section 2-619 states in pertinent part that a “[d]efendant may 

*** file a motion for dismissal of the action or other appropriate relief.” (Emphasis in 

original.) Olfa contends that “[b]ecause Jamel is the petitioner in this matter, his request for a 

dismissal of Olfa’s [motion] based on ‘pending proceedings’ in France is disingenuous.”

(Emphasis added.) She also argues that, by filing this action, Jamel has asked the circuit court 

to “accept jurisdiction over all matters contained in the Judgment, not just an isolated part of 

the Judgment that serves his interests.” As Olfa correctly notes, Jamel seeks only a partial 

dismissal and wants the Illinois court “to retain jurisdiction of this matter to adjudicate his 

claims, such as child support.” She further notes that Jamel’s request for child support was 

denied by the French court. As to Jamel’s motion for a stay, Olfa notes that he made this 

request in order “to see how those French court proceedings progress.” However, Olfa 

contends that “[a] stay of the proceedings in Illinois would simply give Jamel the opportunity 

to take affirmative steps to institute further proceedings in France in an attempt to frustrate 

the Circuit Court’s exercise of jurisdiction in this matter.”

¶ 19 We first note that Jamel has failed to include in the record a copy of his motion to stay or 

a copy of the transcript of the hearing on his motion. “[A]n appellant has the burden to 

present a sufficiently complete record of the proceedings at trial to support a claim of error, 

and in the absence of such a record on appeal, it will be presumed that the order entered by 

the trial court was in conformity with law and had a sufficient factual basis.” Foutch v. 

O’Bryant, 99 Ill. 2d 389, 391-92. “Any doubts which may arise from the incompleteness of 

the record will be resolved against the appellant.” Id. at 392. “An issue relating to a circuit 
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court’s factual findings and basis for its legal conclusions obviously cannot be reviewed 

absent a report or record of the proceeding.” Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 

156 (2005). “From the very nature of an appeal it is evident that the court of review must 

have before it the record to review in order to determine whether there was the error claimed 

by the appellant.” Foutch, 99 Ill. 2d at 391.

¶ 20 In light of the principles enunciated in Corral and Foutch, we justifiably could hold that 

we are unable to conduct a meaningful review of this appeal and presume that the trial 

court’s ruling on Jamel’s motion for a stay had a sufficient legal and factual basis. However, 

the failure of an appellant to include a transcript of proceedings is not necessarily fatal where 

the record contains sufficient documents to allow meaningful review of the merits of the 

appeal. See, e.g., Whitmer v. Munson, 335 Ill. App. 3d 501, 511-12 (2002) (and cases cited 

therein). With respect to the missing motion, Jamel stated in his brief that he was waiting for 

the trial court to rule on his proposed stipulation that the motion be included in the record.

However, Jamel has not filed, nor requested that he be allowed to file, a supplemental record 

containing a copy of the motion. Although Jamel included a copy of the motion in the 

appendix attached to his brief, this is not the proper method of supplementing the record. See, 

e.g., Pikovsky v. 8440-8460 North Skokie Boulevard Condominium Ass’n, 2011 IL App (1st) 

103742, ¶ 16 (“a reviewing court will not supplement the record on appeal with the 

documents attached to the appellant’s brief on appeal as an appendix, where there is no 

stipulation between the parties to supplement the record and there was no motion in the 

reviewing court to supplement the record with the material”). Nonetheless, we believe the 

parties have stipulated that the motion is part of the record. Notably, Olfa has cited to the 

motion contained in Jamel’s appendix to his brief. Moreover, the record contains a copy of 

the judgment entered by the French court, Jamel’s petition to register that judgment, and a 

copy of the trial court’s ruling on the motion to dismiss explaining its findings. Thus, we 

conclude that the record contains sufficient documents to adequately apprise this court of the 

evidence presented to the trial court when it made its decision to deny Jamel’s motion for a 

stay. We will therefore address the merits of the appeal.

¶ 21 We now conclude that the circuit court’s ruling was legally correct based on the plain 

language of the judgment of dissolution entered by the French court, which the circuit court 

had considered three weeks earlier in ruling on Jamel’s motion to dismiss. As the circuit 

court stated: “Based upon Jamel’s request that the 11-26-12 French Judgment for Dissolution 

of Marriage be registered and enrolled in Cook County, Illinois, this Honorable Court has 

both subject matter and personal jurisdiction over this cause.” The court concluded that 

“[b]ased upon Jamel’s registration and enrollment of the French Judgment for Dissolution of 

Marriage in Cook County, Illinois, Jamel has waived his claim that the French courts have 

retained subject matter or personal jurisdiction.” The circuit court further found that there 

were no pending proceedings in the French court. Also, as we have noted, the French court 

ordered the “liquidation and distribution out of the spouses’ marital rights” and merely 

invited the parties “to settle this liquidation and distribution out of court with the assistance 

of a notary of their choice.”

¶ 22 The French court has already issued its judgment and Jamel has instituted this Illinois 

action to register and enroll that foreign judgment in Cook County. Based on the record 

before this court, including the plain language of the judgment of dissolution entered by the 

French court, Jamel has failed to show that there is another action currently pending in the 
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French court. Therefore, Jamel has failed to meet his burden on appeal of showing that the 

circuit court abused its discretion in denying his motion for a stay of Olfa’s motion to 

allocate the marital assets. As there is no basis for concluding that the trial court abused its 

discretion, we must affirm the circuit court’s order.

¶ 23 CONCLUSION

¶ 24 For the foregoing reasons, we affirm the circuit court’s August 14, 2013 order denying 

Jamel’s motion to stay Olfa’s motion to allocate marital assets.

¶ 25 Affirmed.