## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Marriage of Muru

gesh , 2013 IL App (3d) 110228

Appellate Court Caption In re MARRI AGE OF DE EPAL AKSHMI MURUGESH, PetitionerAppellee , and MURUGESH KA SI L I NGAM, Responde nt-Appellant.

District & N o. Third District Docke t No. 3-11-0228

Filed Rehea ring denied Aug ust 8, 2013

September 9, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The certified questi on as t o whether the I llinois action filed by the wife of a couple who wer e citize n s and domiciliaries of India and wer e marrie d in I ndia, but lived in I llinois
, should be dismiss ed pursuant to section 2-619(a )(3) of the Code of Civil Procedur e beca use the husband filed a divorce action before t h e wi fe filed her action or pursuant to the d o ctrine of

forum non conve niens
, principles of comity or I llinois ’s polic y of avoiding duplicative litigation was answe red in the neg ative, since section 2-619(a )(3) should not be used to d i s m i s s an I llinois action in fa vor of an Indian action, the rele vant fac tors did not favor a dis m i s s al under the forum non conve niens do ct ri ne, I llinois ’s leg itimate and substantial relationship to the action prec luded dismiss al pursuant to the principles of comi ty , and nothing in the policy of avoiding duplicative actions require d dismiss al of the wife’ s petition in favor of the husband’s I ndian ac tion.

Dec ision Under Review Appea l from the C ircuit Court of W ill C ounty , No. 09-D- 452; the Hon. Robert P. Brumund, Judge , presiding

.

J udg ment Certified que stion answere d.Counsel on

Appea l Sarane C. Siewerth and Shannon R. Bur ke (ar g ued), b o t h of Schiller, DuCanto & Flec k L L P, of Chicag o, and Timoth y M. Daw, of Schiller, DuCanto & Flec k L L P, of Wheaton, for a ppellant.

J are d B. Pi nkus, Howar d A. L ondon (ar g ued), and Kather ine A. Grosh, all of Be erma

nn Pritiki n Mirabelli Swerdlov e L L P
, of Chicag o, for appellee

.

Panel J USTI CE L YTTON de livered the judgme nt of the cour t, with opinion.
J ustice Carte r conc urre d in the judgme nt and opinion.
J ustice McDa de spec ially concur red, w ith opinion.

OP INION

¶ 1 Petitioner Dee palakshmi M u r u g e s h ( D e e p a ) a

n d M u r u g e s h Kasiling am (Murug esh) we re

marr i ed in India in ear ly 1999. By September 1999, both parties wer e living in I llinois

. In Marc h 2009, Murug esh filed a petition for dissoluti on of marria g e in India. Two day s later, Dee pa filed a p et i t i o n for dissoluti on of marria g e in I llinois

. Murug esh filed a motion to d i smiss Dee pa’s petition for dissoluti on. The trial court denied the motion and cer t i fi ed a question for appea l. Murug esh filed a petition for interlocutory appea l, seeking an answe r to the ce rtified question. We answe r the c ertified que stion in t he neg ative.

¶ 2 FACTS ¶ 3 Murug esh and Dee pa are citizens of India. In 1997, Murug esh came to the United States and started a company in I llinois

. Murug esh and Dee pa wer e marrie d i n I ndia in J anuar y 1999, under the Hindu Marr iag e Act No. 25 of 1955. The marria g e was solemniz ed in India

on Aug ust 22, 1999. I n September 1999, Dee pa moved to I llinois with Murug esh. One y ear later, Murug esh and Dee pa had a child. T h e chil d was born in I llinois and has resided in I llinois since he r birth. ¶ 4 I n 2008 and 2009, Dee pa spent extended periods in India. A c c o r d in g to Murug esh, during these periods, Dee pa was living with another man and holding herse lf out as his wife. Dee pa returne d to I llinois on Marc h 10, 2009. ¶ 5 On M arc h 14, 2009, M u ru ges h filed a petition under the Hindu Marr iag e Act, seeking dissoluti on of his marria g e to Dee pa. The petition alleg ed that Dee pa committed adultery and mental crue lty

. Two day s later, Dee pa filed a petition for dissolut i o n o f marria g e in Wil l County
, I llinois
, alleg ing irrec oncilable differ ence s and ment al crue lty

. In April 2009, Murug esh filed a mot ion to dismis s t h e I l l inois divorce proce eding
, pursuant to section 2-

-2-619(a) (3) of the I llinois Cod e of Civil Procedur e (735 I L CS 5/2-619(a) (3) (West 2010)),

arguing that a divorce action wa s alrea dy pendingin I ndia. ¶ 6 The trial court held a hear ing on M u ru ges h ’s m o t i o n t o d i s m i s s. At the hea ring
, Murug esh testified that he owns two b u s i n es ses in I llinois

. He also claimed an owner ship interest in a business in I ndia but said that he rec eives no income from it. Murug esh testified that he and Dee pa have $400,000 worth of jewelr y in a safe deposit box in India. He also testified that he paid an advanc e for a vaca nt lot in India on which he and Dee pa planned to build a home. Murug esh testified that he did not have any documentation with respe ct to that
proper ty beca use it was purc hased through his father with “black mone y .” ¶ 7 De ep a t es t i fi ed that except for one bank acc ount with a nominal balanc e and a sa fe deposit box containing jewelr y , al l o f the couple’ s assets are located in I llinois
, including Murug esh’s businesses, the couples’ primary bank acc ounts, their personal proper ty , and their marital r esidenc e. She testified that she did not own any land in India. ¶ 8 Since Murug esh filed his divorce action, neither he nor Dee p a h as been back to I ndia. Murug esh’s pare nts insti t uted two criminal actions ag ainst Dee pa for adultery and filed a char g e of attempted assault ag ainst Dee pa and her pare nts. I f Dee pa wer e to r eturn to India and be c onvicted of a dultery , she could fa ce up to two y ear s in prison. 1 ¶ 9 I n t h e I n d i an divorce action, Murug esh never persona lly appea red; rathe r, his f

at h er appea red by proxy on his behal f. I n an aff idavit submitt ed to the Indian court, Murug esh explained that he would be unable to appea r in court in India beca

use he was “pre occupie d” with “runninga softwa

re business in the United S tates.” Deepa ’s father participated in the I ndian divorce action on her behalf

. Murug esh’s fathe r lives in the city wher e Murug esh filed his divorce action, while Dee pa’s fathe r lives near ly 2 0 0 m i l es aw ay

. I t takes him five to seven hour s to travel that distance by car or train. ¶ 10 I n M ar ch 2 0 1 1
, t h e t ri al co u rt d en i ed Murug esh’s motion to dismiss the I llinois
proce eding

. I n its oral ruling
, the court found that (1) neither of the parties has been in India since Murug esh filed his petition, (2) all of the proce eding s in India have been by proxy , (3) except for brief periods of t ime since August 1999, the partie s h av e resided in I llinois
, (4) the parties’ only child was born in I llinois and is a citizen of the United States, (5) the only
assets of the parties located in India are a vaca nt lot, a relatively new corpor ation, a bank

acc ount, and jewelr

y , (6) the only rea son Murug esh filed his action in India was “bec ause of [Deepa’ s] alleged m arital infidelity and the conseque nces of the same under the Hindu Marr iag e Act,” (7) Murug esh eng ag ed in “for um shopping” so that he could “take advanta g e of t he Hindu Marr iag e Act,” (8) “substantially
, if not all o f t h e ev i d en ce, is located in this jurisdiction,” and (9) the only evidenc e not available in I llinois is proof of Dee pa’s infidelity
, “which is not an issue in the U nited States.” ¶ 11 On Marc h 16, 2011, Murug esh filed a motion reque sting the I llinois trial court to stay the

Mu rugesh pro vide d t h i s cou rt wit h doc um ent at ion tha t the two adu lt er y cha rges agains t 1 Deep a have bee n dis m is sed

. However, Mu rugesh and his fa mi l y ma y be abl e to re ins ta te tho se cha rges. Addi ti ona ll y, the at te m pte d ass aul t cha rges agains t Deep a and her par ent s app ear to re m ai n pen din g.

-3-I llinois proce eding s and ce rtify the followingquestion for a ppeal: “Where citizens and domiciliaries of India wer e marrie d in India under the Hi ndu Marr iag e Act of 1955 but are curr ently living in I llinois ; wher e g rounds fo r d i v o rce and/or dissoluti on are alleg ed to have arisen in both the State of I llinois and the Country of India, and that pr oof of those grounds would be loca ted in eac h jurisdiction, and the husband filed his divorce action in India befor e the wife filed a Petition for Dissolution of Marr iag e in I llinois ; wher e both c ourts have persona l a nd subject matter jurisdiction

over the respe ctive proce eding s; and wher e the India co u rt , according to the Hindu Marr iag e Act of 1955, asser ts exclusive jurisdiction to divorce parties marrie d acc ording to H indu law such that I ndia would not rec og nize an I llinois judgme nt of dissoluti on in

a contested case , should the I llinois action be dismiss ed pursuant to 735 I L CS 5/2- 619(a) (3) and/or the doctrine of forum non conve niens
, principles of comity and t he I llinois court’s e x clusive opportunity to avoid duplicative litigation? ” ¶ 12 I n Marc h 2011, Dee pa filed with the I l l i n o i s court a petition to enjoin Murug esh fr om participating in the I ndian divorce proce eding

. The trial court g rante d Dee pa’s petition to enjoin and also g rante d Murug es h ’s motion to stay the I llinois proce eding and cer tify the question for appea l. Murug esh appea led the trial court’s order enjoining him from participa ting in the Indian divorce action. We aff irmed the trial court’s decision to g rant Dee pa’s pe tition t o enjoin. In re M arriage of Murugesh , 2012 I LApp (3d) 110204- U. ¶ 13 I n Ap ri l 2 0 1 1
, Murug esh filed a petition for leave to appea l with this court, seek i n g revie w of the cer

tified question. We initially denied Murug esh’s petition for leave to appea l. Murug esh then ap p ealed to the I llinois Supreme Court. The supreme court direc ted us to

vacate our ear lier order denying Murug esh’s petition for leave to appea l and further direc ted

us to allow t h e p et i t ion for leave to appea l and answer the cer tified question. Murugesh v. Kasili ngam , No. 112555 (Sept. 28, 2011) ( supervisory order ).

¶ 14 ANALYSI S ¶ 15 Certified que stions ar e g overne d by I llinois Supreme Court Rule 308 (I ll. S. Ct. R. 308 (ef f. Fe b. 26, 2010)). Rule 308 allows for permissive appea l of an interlocutory order

cer tified by the trial cour

t as involving a “question of law as to which ther e is a substantial
g round for differ ence of opinion” and wher e an immediate appea l may “mater ially advanc e the ultimate termination of litigation.” I ll. S. C t. R. 308(a) (e ff. F eb. 26, 2010). ¶ 16 Pursuant to Rule 308, we are limit ed to answe ring the specifie d cer tified question. Spears

v. Association of

Illinois Electric Cooperatives
, 2013 I L App (4th) 120289, ¶ 15. We should
not look beyond the question to consider the propriety of the court’s underly ing order

. In re Estate of Lucc io
, 2012 I LApp (1st) 121153, ¶ 17. We r eview a cer tified question de novo

. Id. ¶ 17 Her e, the cer

tified question asks us to deter mine whether
, based on the fac ts of this c ase, the I llinois action should be dismiss ed pursuant to (1) section 2-619(a )(3) of the Code (735 I L CS 5/2-619(a) (3) (West 2010)), (2) t he doctr ine of forum non conve niens , (3) pr inciples of comity
, or (4) “the I llinois court’s exclusivi ty opportunity to avoid duplicative litigation.” We will address ea ch in turn.

-4-¶ 18 I . Section 2-619(a )(3) of the Code

¶ 19 Section 2-61 9 (a )( 3 ) o f t he Code allows for a stay or dismiss al of a cause of action if “ther e is another action pending betwee n the same parties for the same cause .” 735 I L CS 5/2- 619(a) (3) (West 2010). The purpose of section 2-619(a )(3) is “to av oid duplicative litigation.” Kellerman v. M CI Telecomm unications Corp. , 112 I ll. 2d 428, 447 (1986). ¶ 20 When a party bring s a motion under section 2-619(a )(3)
, the trial court has discretion to deter mine if a dismiss al is war rant ed

. Id

. A circuit court is not automatically require d to dismiss or stay a proce eding under section 2-619(a )(3) even when the “same cause ” and “same parties” require ments are met. Id. ¶ 21 The I llinois Appellate Court has twice ruled that section 2-619(a )(3) of the Code does not apply to a divorce action pending in a fore ign c ountry . See Farah v. Farah
, 25 I ll. App. 3d 481 (1975); Goldberg v. Goldberg
, 27 I ll. App. 3d 94 (1975). In Farah
, divorce proce eding s

wer e filed in both I llinois and L ebanon. F a r a h
, 25 I ll. App. 3d at 484-86. The husband moved to dismiss the I llinois proce eding s pursuant to se ction 48(1)( c) of the Civil Practice Act, the prede cessor to section 2-619(a )(3) of the Code. Id. at 486. The trial court denied the husband’s motion, and the a ppellate c ourt aff

irmed. The court stated that the full faith and

cre di t clause of the Constit ution does not require I llinois courts to rec og nize or enfor ce d ecr ees of fore ign countries. Id. at 493. The court held, “[ i] f a final j udg ment enter ed by a fore ign c ourt nee d not be enforce d by the courts of I llinois under Const itutional principles of full faith and cre dit, then it should nece ssarily follow a fortiori that the mere pendenc y of

a prior action in the court of a fore ign country should not constitute a bar t o fu rther
proce eding s befor e this court.” Id. ¶ 22 I n Goldberg , divorce actions we re pending in both I llinois and I srae l. Goldberg , 27 I ll. App. 3d at 97. The wife filed a motion to di s m i s s t h e I llinois action, pursuant to section 48(1)( c) of the Civil Practice Act. Id. The trial court denied t h e motion, and the appellate
court aff irmed. Id. Citi ng its rec ent d ec i s i o n in Farah
, the court held that section 48(1)( c) (now section 2-619(a )(3) of the Code) does not apply to actions pending in fore ign countries. Id. Following Farah ’s holding that “the mere pendenc y of a prior action in the court of a fore ign country would not constitute a bar to further proce eding s befor e a n I llinois court,” the court in Goldberg ruled that the trial court corr ectly ref used to dismiss the I llinois action beca use of the pr ocee dings in the I srae li court. Id. at 98. ¶ 23 W e agr ee wi t h t h e re asoning and analy ses of Farah and Goldberg

. The purpose o f section 2-619(a)( 3) i s “to avoid duplicative li tigation.” Kellerman
, 112 I ll. 2d at 447. This
purpose can be achie ved only if the decr ee from the fore ign tribunal will be rec og nized and enfor ced in I llinois

. A decree from another j urisdiction will be rec og nized and enfor ced in I llinois if it is entitled to full faith and cre dit. See Miner v. Gillette Co.
, 87 I ll. 2d 7, 15 (1981). The full faith and credit cla use applies to judg ments issued by sister states. S ee id. I t does not normally apply to divorce judgme nts issued by fore ign countries. S ee C l u b b v. Clubb
, 402 I ll. 390
, 3 9 9 -4 00 (1949); In re Marriage of Mullins
, 135 I ll. App. 3d 279, 281 (1985); Farah
, 25 I ll. App. 3d at 4 9 3 ; Ha g er v. Hager
, 1 I ll. App. 3d 1047, 1050 (1971); Roberts v. Roberts
, 11 I ll. App. 2d 86, 92 (1956). But see Janssen v. Janssen
, 269 I ll. App.

-5-233, 242 (1933) (while divorce decr ees are not automatically entitled to full faith and cre dit,

an I llinois court may , based on “comity
, public policy or o ther rea sons, g ive full faith and

cre dit to such decre es if it is so disposed”). ¶ 24 Where a fore ign judgme nt is not rec og nized in I llinois
, an I llinois court must litigate the
controve rsy

. I n such a case , duplicative litigation cannot be avoided, and section 2-619(a )(3)
cannot be applied to dismiss the I llinois action. I f a fore ign court’s judgme nt is rec og nized in I llinois , section 2-619( a)( 3) may be prope rly

employ ed to avoid duplicative litig ation. ¶ 25 Howeve r, Murug esh cites a fede ral court case that has called into question the continued viabi l i t y of Farah and Goldberg since the I llinois leg islature’s enac tment of the Uniform For eig n Money -Judgments Recog nition Ac t (Recognition Act) (735 I L CS 5/12-618 et seq. (West 2010)). See Ball v. Dee re & Co.
, 684 F. Supp

. 1 4 5 5
, 1 4 5 7 (C.D. I ll. 1988). The Recog nition Act provides that with cer tain exceptions, a “for eig n judgme nt” is enfor cea ble “in the same manner as the judgme n t o f a s i s t er state which is entitled to full faith and

cre dit.” 735 I L CS 5/12-620 (West 2010)

. But, the Recog nition Act’s definition of “for eig n judgme nt” is “any judgme nt o f a fore ign state g ranting or denying rec overy of a sum of
money , other than *** a judgme nt for support in matrimonial or family matters.” 735 I L CS 5/12-618(b) ( West 2010). Thus, the Recog nition Act doe s not a pply to a divorce judgme nt enter ed by a fore ign court. Philips Electronics, N.V. v. New Hampshire Insurance Co.
, 295 I ll. App. 3d 895, 903 (1998) (c iting Nardi v. Segal , 90 I ll. App. 2d 432, 437 (1967)). ¶ 26 Be cause I llinois courts are not require d to rec og nize or enfor ce divorce judgme nts f rom fore ign countries, the p u rp o s e o f section 2-619(a )(3) of the Code to “avoid duplicative litigation” is not achie ved by dismiss ing an I llinois dissoluti on action in fa vor of a fore ign dissoluti on action. Section 2-619(a )(3) of the Code should, there fore
, not be used to dismiss the I llinois dissoluti on action in favor of the Indian action. See Farah
, 25 I ll. App. 3d at 493; Goldberg , 27 I ll. App. 3d at 97.

¶ 27 I I

. Forum Non Conveniens ¶ 28 F

o r u m n o n co n ve n i en s i s an “equitable doctrine founded in cons i d er at i o n s o f fundame ntal fairne ss and the sensible and eff ective administration of justice.” Langenhorst v. Norfolk Southern Ry. Co. , 219 I ll. 2d 430, 441 (2006). The doctrine pe rmits a trial court to transfe r a c ase when trial in anothe r for um would better ser

ve the e nds of justice. Id. ¶ 29 The burden is on the party asking for the d i s m i s s al t o s h ow that the rele vant fa ctors strong ly favor transfe r. Id. at 442. A defe ndant seeking transfe r is require d to show not only that the pl aint iff’s choice of forum is inconvenient but that the defe ndant’s choice is the substantially

more a ppropriate forum. In re Marriage of M ather
, 408 I ll. App. 3d 853, 857 (2011). Unless the defe ndant demonstrat e s th at the rele vant considera tions “over

whelming ly fa vor” a dismiss al, the court should deny the defe ndant’s motion. W oodward v. Bridgestone/Firestone, Inc

. , 368 I ll. App. 3d 827, 833 (2006). ¶ 30 Befo re we i gh i n g t h e rele vant fac tors to consider in deciding a forum non conve niens motion, a court must first decide how much defe renc e to g ive the plaintiff’s choice of forum. Langenhorst
, 219 I ll. 2d at 448. The plain t i ff’s ch oice of forum is a substantial fac tor in deciding a

forum non conve niens motion and should be acc orded substantial defe renc e when

-6-it is where the pla intiff resides. Id. ; see Mather , 408 I ll. App. 3d at 858.

¶ 31 A cour

t must t hen conside r both private a nd public interest fa ctors in dec iding a forum

non conve niens motion. Langenhorst
, 219 I ll. 2d at 443. The private interest fac tors include: “(1) the convenie nce of the parties; (2) the relative ease of acc ess to source s of testimonial, documentar

y , and rea l evidenc e; and (3) all other prac tical problems that make trial of a case easy , expeditious and inexpensive.” Id. The public interest fac tors include: “(1) the interest in deciding controve rsies locally ; (2) the unfairne ss of imposing trial expense and the burden

o f j u ry duty on residents of a forum that has littl e connec tion to the litigation; and (3) the

a d mi n is tr ative difficulties prese nted by adding litigation to alre ady cong ested court docket s

. ” Id. at 443-44. ¶ 32 He re , al l o f the rele vant fac tors weig h ag ainst dismiss al of t h e I l l i n o i s d i v o rc e proce eding

. First, we must g ive substantial defe renc e to Dee pa’s chosen forum particula rly since she filed her action in the same county in which she and Murug esh reside. See Mather
, 408 I ll. App. 3d at 858. ¶ 33 Simi larly
, the first private interest fac tor, t h e co n v en i en ce o f the parties, also favor s I llinois since both parties reside and can easily appea r in court in this state. Neither Murug esh

nor Dee pa has persona lly appea red in court in India. Indeed, Murug esh filed an aff idavit with the I ndian court stating that he would not be able to persona lly appea r there beca

use he was “pre occupie d” with hi s life and business in the United St ates. This fac tor does not support dismiss al. ¶ 34 The ne x t private intere st factor
, ease of acc ess to evidenc e, also fa vors I llinois beca

use most of the rele vant proofs in this case are located here

. Although Murug esh argues that there

are witnesses i n I ndia, t hose wit nesses are releva nt o n l y to Dee pa’s alleg ed infidelit y

. The

rema inder of the evidence in this case , including the proper ty and assets of t he parties, the divorce g rounds claimed by Dee pa, and any issues rela ted to their child, are almost entirely located in I llinois

. We ag ree with the trial court that “substantially
, if not all of the evidenc e, is located in this jurisdiction.” This factor doe s not support dismi ssal of the I llinois action. ¶ 35 The final private interest fac tor, prac tical issues for th e p ar t i es , al s o weig hs ag ainst dismiss al. I n this c ase, the main issue is travel to the loca l county court a nd trave l to I ndia. A trial in I ndia would not be easy or inexpensive, particula rly to Dee pa, who has participated in the proce eding s there only throug h her fathe r, who has to trave l s ev er al hours to attend
court. On the other hand, a trial in I llinois would be much easie r and less expensive for both Dee pa and Murug esh beca use they can easily trave l to court in the county in which they both reside. ¶ 36 The public interest fac tors also do not support dismi ssal of the I llinois action. The first public interest fa ctor, the interest in deciding controve rsies l ocally , weig hs heavily ag ainst d i s m i s s i n g the I llinois divorce case beca use there is a strong public policy in favor of deciding mari t al controve rsies locally

. See In re Marriage of Ricard
, 2012 I L App (1st) 111757, ¶ 57. I n domestic rela tions case s, there is a strong tie to the county wher e the marital home is located and wher e the children of the marria g e reside. Id. Her e, the marital home and the par ties’ child ar e located in I llinois . Thus, I llinois is an appropr iate for um. ¶ 37 The sec o n d p u b l i c i n t er es t fac tor, the unfairne ss of imposing trial expenses and the

-7-b u rd en o f jury duty on residents of a forum that has l ittle connec tion to the l itigation, a l s o

weig hs ag ainst dismiss ing the I llinois action. Although this is not a jury matter, I llinois has

a strong connec tion to the parties and their marria g e, since the parties have resided in I llinois for almost all of their mar ried lives. See id. Be cause of the pa rties’ strong connec tion with I llinois
, it would not be unfair to impose the expense of a trial on I llinois residents. The final public interest fac tor, compar ative cong estion in the respe ctive courts, also does not support dismiss al beca

use Murug esh prese nted no evidenc e that there is more cong estion in I llinois courts than Indian cour

ts. See id. ¶ 59. ¶ 38 Ba sed on all of the rele vant fac tors, dismiss ing the I llinois case pursuant to the doctrine of forum non conve niens would not be appr opriate.

¶ 39 I I I . Comit y ¶ 40 Comit y is “a rec og nition which one nation allows within it s territory to the l eg islative, executive or judicial acts of another nation, having due reg ard both to the international duty and convenie nce and to the rig hts of its own cit i z en s wh o are under the protec tion of its laws.” Clubb
, 402 I ll. at 3 9 9 -4 0 0

. Under the doctrine of comity
, courts may , but are not require d to, defe r to the laws or interests of a fore ign co u n t ry and decline to exercise j u ri s d i cti on that is otherwise proper ly asser ted. Performance Network Solutions, Inc. v. Cyberklix US, Inc.
, 2012 I L Ap p (1 s t ) 1 1 0 1 37, ¶ 34. When a proper ly filed action has a leg itimate and substantial relationship to I llinois
, the action should not be dismiss ed pur s uant to principles of comity

. See W hittmanhart, Inc. v. CA, Inc.
, 402 I ll. App. 3d 848, 855 (2010). ¶ 41 Recog nition of a fore ign judgme nt may be withheld wher e (1) it is contra ry to the public policy of the state wher e the rec og nition is soug ht, ( 2) the country in which the dec ree was rende red does not rec og nize Americ an decr ees, or (3) the judgme nt was obtained in bad faith, by fra ud or by taking advanta g e of the fore ign law. Hager v. Hager
, 1 I ll. App. 3d 1047, 1051 (1971). Courts considering whether to g ive comity to a fore ign judgme nt should also consider whether the fore ign court “ca n do complete justice to those aff ecte d by the decr ee.” Codo, Bonds, Zumstein & Ko n z elman, P.C. v. Fede ral Deposit Insurance Corp.
, 148 I ll. App. 3d 698, 703 (1986). I llinois courts have ref used to rec og nize divorce de cre es ente red by fore ign countries under principles of comity

. See Clubb
, 402 I ll. at 399-400; Mullins
, 135 I ll. App. 3d at 281; Farah , 25 I ll. App. 3d at 492; Hager
, 1 I ll. App. 3d at 1052; Nardi
, 90 I ll. App. 2d at 434-46. ¶ 42 The doctrine of comity does not support dismiss al of the I llinois case for sever al re asons. First, I llinois has a signific ant and substantial interest in t h e p ar t i es and the dissoluti on of their marria g e since they are both residents of I llinois

. See Ricard
, 2012 I L App (1st) 111757, ¶ 57. Second, as stated in the cer tified question, “India would not rec og nize an I l l i n o is judgme nt of dissoluti o n in a contested case .” Be cause Indian courts will not rec og nize an I llinois divorce decr ee, it would be inappropria te for an I llinois court to rec og nize the Indian divorce decr ee under principles of comity

. See Clubb
, 402 I ll. at 395 (“[T]he comity of this country does not require that judgme nts of a fore ign country be rec og nized as conclusive in this c ountry , wher e such fore ign country does not g ive like eff ect to our own judgme nts.”). Third, the trial court found that Murug esh fi l ed h i s divorce action in India solely to “take

-8-advanta g e of the Hindu Marr iag e Act” beca use it is more favor able to him. Since Murug esh fil ed h i s ac t i o n i n I ndia as a means to take advanta g e of fore ign law, we should not g rant comity to the I ndian cour

t’s judgme nt. See Hager , 1 I ll. App. 3d at 1051. ¶ 43 Finally
, complete relief can only be provided to the parties by an I llinois court. Pursuant
to the Uniform Child-Cust ody J urisdiction and Enforc ement Act (Ac t), a court can make an initial child custody deter mination only if it is located in the “home state of the child.” 750 I L CS 36/201(a) (West 2010). The Act de fi n es a child’s “home state” as the s tate in which the child has lived with a pare nt for at l east six consec utive months. 750 I L CS 36/102(7) (West 2010). Since the parties’ child has lived in I llinois her entire life, only an I llinois court

can ma ke an initial child custody deter mination with respect to her

. ¶ 44 Un d er the fac ts and circ umstances prese nted in the cer tified question, the I llinois trial
court wa s not require d to dismi ss the I llinois action pursua nt to principles of comity

.

¶ 45 I V. “I llinois court’s e x clusive opportunity to avoid duplicative litigation” ¶ 46 I t is the policy of I llinois to avoid duplicative litigation. See Combined Insurance Co. of A me r i ca v. Certain Underwriters at Lloyd’s, London
, 356 I ll. App. 3d 749, 756 (2005 ). Howeve r, that policy does not require I llinois court s t o fo rce litigants into the courts of another jurisdiction. International Games, Inc. v. Sims
, 111 I ll. App. 3d 922, 926 (1982) (citing A.E. Staley M

anufacturing Co. v. Swif

t & Co. , 84 I ll. 2d 245, 253 (1980)). ¶ 47 We find nothing about I llinois ’s policy of avoiding duplicative litigation that require d the trial court to dismiss the I llinois action in favor of t he I ndian di vorce action. As explained above, I llinois has a strong interest in dec iding this dissoluti on action betwe en two I llinois residents. See Ricard
, 2012 I L App (1st) 111757, ¶ 57. The trial court proper ly deter mined that it would be inappropriate to forc e Dee pa to litigate the dissoluti on action i n a fore ign country wher e neither

she nor Murug esh re side.

¶ 48 CONCL USI ON ¶ 49 For the rea sons set forth above, we answe r the cer tified question in the neg ative. Section 2-619(a )(3) of the Code, the doctrine of forum non conve niens
, principles of comity
, and “the I llinois court’s exclusive opportunity to avoid duplicative litigation” do not require the trial court to dismiss thi s I llinois dissoluti on action involving two I llinois residents. ¶ 50 The c ertified que stion of the circ uit court of Will C ounty is answer ed.

¶ 51 Certified que stion answere d.

¶ 52 J USTI CE McDADE, spe cially concur ring

. ¶ 53 I ag ree with the majority that the cer tified question should be answe red in the neg ative; howeve r, I write separa

tely for two r easons. F irst, I believe that as a matter of law, section 2-619(a )(3) of the Code of Civil Procedur e may be used to dismiss an I llinois dissoluti on of marria g e action when there is alre ady a dissoluti on action pending in a fore ign country

.

-9-Second, I disag ree with the majority ’s appr oach to a nsweringthe ce rtified question. ¶ 54 First, I believe the majority ’s interpre tation of section 2-619(a )(3) is unduly restric tive:

a trial court should not be prec luded from using section 2-619(a )(3) when there is a dissoluti on proce eding alre ady pendin g i n a fore ign country

. I acknow ledg e that I llinois
statutes do not require that fore ign dissoluti on of marria g e decr ee s b e g iven full faith and

cre dit: the Uniform For eig n Money -Judgments Recog nition Act (Recognition Act) does not apply to divorce or domestic relations matters (see 735 I L CS 5/12-618(b) (West 2010)), and 2 while the I llinois Marr iag e and Dissolution of Marr iag e Act allo ws fo r en forcement of dissoluti on ju d gm en t s from other states, i t does not specific ally mention fore ign countries (see 750 I L CS 5/511(c) (West 2012)). Howeve r, even though a fore ign country ’s dissoluti on judgme nt is not entitled to be enfor ced in I llinois as a matter of rig ht, in cer tain instances it
may still preve nt duplica

tive litigation and justify a decision to dismiss an I llinois action in favor of a f oreig n proce eding

. ¶ 55 As the majority acknow ledg es, a fo re i gn d i v o rc e judgme nt may be rec og nized and enfor ced in I llinois under the principle of comity

. See Janssen v. Janssen
, 269 I ll. App. 233, 242 (1933). See also Ransom v. A.B. Dick Co.
, 289 I ll. App. 3d 663, 669 (1997) (comity may be gi v en to an act of a fore ign court as long as the fore ign court possessed competent jurisdiction and if the l aws and public policy of t he forum s t at e are not violated). W here a fore ign proce eding is not entitled t o fu l l faith and cre dit but may be rec og nized under the principle of comity
, a trial court may use section 2-619(a )(3) to dismiss an I llinois action. See Philips Electronics, N.V. v. New Hampshire Insurance Co.
, 295 I ll. App. 3d 895, 904 (1998) (eve n if the Recog nition Act did not apply to a judgme nt enter ed by an Eng lish court, the decr ee could be rec og nized under principles of comity
, and there fore it wa s p ro p er t o consider whether the I llinois action should b e dismiss ed in favor of the pending Eng lish action). I n instances wher e a fore ign divorce decr ee may be rec og nized in I llinois
, then it could preve nt duplicative litigation to stay or dismiss an I llinois action in favor of the fore ign country ’s proceeding

. Acc ording ly , allowing the trial court the di scre tion to use section 2- 619(a) (3) when there is a dissoluti on proce eding alre ady pending in a fore ign country would be consistent with the purpose of the statut e. S ee Kellerman v. MCI Telecomm unications Corp.
, 112 I ll. 2d 428, 447 (1986) (“Sec tion 2-619(a )(3) is desig ned to avoid duplicative litigation and is to be a

pplied to car

ry out that purpose.”)

. ¶ 56 To the extent that this is inconsistent with Farah and Goldberg
, I would find that those

case s, while corr ectly decide d, g o too far in establishing a rule that an I llinois d i s s o l u tion action cannot be stay ed or dismiss ed in favor of a fore ign country ’s dissoluti on proce eding

. I n both Farah and Goldberg
, the appellate cour t af fi rm ed the trial court’s denial of the appellant’ s motion to dismiss

. Farah v. Farah
, 25 I ll. App. 3d 481, 493 (197 5 ); Goldberg

v. Goldberg
, 27 I ll. App. 3d 94, 97-98 (1975). Both courts decide d to aff irm the trial court’s

I n 20 12, t he Re cognit ion Act was rep eal ed and rec odi fi ed, wit h several cha nges. Se e 73 5 2
I LCS 5/1 2- 661 et seq

. (W est 2012 ). T he cur re nt versi on of the Reco gniti on Act st il l exe m pts for ei gn j udgm ent s in con nec ti on wit h divor ce or domesti c re la ti ons m at te rs , however. See 735 I LCS 5/12- 663( b)( 3) (W est 201 2).

-10-order on th e basis that I llinois was not require d to rec og nize the judgme nt of a fore ign

country ’s court. Farah
, 2 5 I ll. App. 3d at 493; Goldberg
, 27 I ll. App. 3d at 97-98. Whil e neither case speaks to the standard of revie w the court was applying, under curr ent prac tice

a trial court’s denial of a motion to dismiss under this statute would be revie wed for an abuse of discretion. See Kapoor v. Fujisawa Pharmace utical Co.
, 298 I ll. App. 3d 780, 786 (1998). Whether a fore ign judgment would be enforce able in I llinois is an important fa ctor for the trial court to consider when fac ed with a motion to dismiss an I llinois action in favor of the fore ign dissoluti on proce eding

. There fore
, I would rea d Farah and Goldberg as establishing that it is not an abuse of discretion to deny a motion to dismiss in favor of a fore ign country ’s dissoluti on of marria g e proce eding when that judgme nt would not be enfor cea ble in I llinois

. This does not mean, howeve r, that the trial court cannot exercise its discretion to dismiss an I llinois action if the trial court believes the fore ign judgme nt would be enfor cea ble under the principle of c omity

and the other

circ umstances wa

rra nt dismi ssal. ¶ 57 Other consider at i o n s al s o s u p p o rt giving trial courts the ability to apply section 2- 619(a) (3) when there is a fore ign dissoluti on of marria g e case pending

. The doctrine of forum

non conve niens allows the di smissal of a dissoluti on action in favor of a fore ign country ’s forum. See In re Marriage of Ricard
, 2012 I L App (1st) 111757, ¶¶ 39-41 (finding that forum

non conve niens d o es n o t require that the alterna te forum be domestic in a dissoluti on of marria g e case ). Whil e forum non conve niens and section 2-619(a )(3) are distinct, they are “interr elated proce dural device s which may and should be used toge ther when another action is pe nding and defe ndant fee ls that one forum is inconvenient.” A.E. Staley Manufacturing Co. v. Swift & Co.
, 84 I ll. 2d 245, 251 (1980). Given the close connec tion betwee n these two proce dural device s, it would be confusing and inconsistent f or one to a

pply when there is a fore ign divorce case pending while the other cannot. Finally
, it is important to rec og nize that section 2-619(a )(3) is discretionar y in nature

. See Staley
, 84 I ll. 2d at 253. I see no rea son to summarily limit
, as Farah and Goldberg purport to do and as d o es t h e majority
, the discret i o n o f the trial court in these situations. There fore
, I would find that section 2- 619(a) (3) may

be invoked whe re the re is a dissolution of marr iag e ca se alre ady pendingin a for eig n country

. ¶ 58 My other conce rn is with the majority ’s approa ch to answe ring the cer tified questio n. The majority states that the cer ti fi ed question calls for us to deter mine whether
, “base d on the fac ts of this case ,” the I llinois action should be dismiss ed pursuant to section 2-619(a )(3)
, forum non conve niens
, comity
, or the I llin o i s co u rt ’s exclusive opportunity to avoid duplicative litigation. See supra ¶ 17. The majority then g oes on to cite fac ts from the underlying case –fac ts which are not set forth in the cer tified question–to bolster its decision that dismiss al is not re quired unde r the four specifie d g rounds. See, e.g. , supra ¶¶ 33, 42. I disag ree with this approa ch. I t would be improper for a cer tified question to mere ly call for th e ap p el late court to apply the l aw to the underly ing fac ts of a case

. See Thomas v. Page
, 361 I ll. App. 3d 484, 494-95 (2005). Pursuant to I llinois Supreme Court Rule 308, a cer tified question should prese nt a question of law about which substantial g rounds for disag ree ment exis t. See I ll. S. Ct. R. 308(a) (ef f. Fe b. 26, 2010); Solon v. Midwest Medic al Rec ords Ass’n, Inc.
, 236 I ll. 2d 433, 439 (2010). Rule 308 “wa s never intended to serve as a vehicle to appea l interlocutory

order s involving l ittle more than an application of t he law to the fac ts

-11-of a specific case .” Thomas
, 3 6 1 I ll. App. 3d at 494. I t is partly for this rea son that the 3 revie wing court should confine its decision to answe ring the cer tified question itself and not expand the question under revie w. See Fosse v. Pensabene
, 362 I ll. App. 3d 172, 177 (2005). ¶ 59 By answe ring the question “base d on the fac ts of this case ,” the majority does not me rely

answe r the cer

tified question, but instead expands the question under revie w. As far as is
prac ticable, I would answe r the cer tified question as an abstrac t question of law, using only the fac tual predic ates specifie d in the question it s el f. M y answer would still be neg ative: dismiss al is not require d, as a matter of law, under any of the four g rounds. This is beca use

a trial court may exercise broad discret i o n in making a deter mination on any of g rounds stated, taking into acc ount the specific fac ts of the case , and nothing in the cer tified question itself leads me to conclude that ref us i n g t o dismiss the I llinois action would constitute an abuse of discretion. ¶ 60 An appellate court may , in the interests of justice and the n ee d t o re ach an equitable result, review t he propriety of t he underlying order that g ave rise t o the ce rt i fi ed question. Townsend v. Sears, Roebuc k & Co.
, 227 I ll. 2d 147, 153 (2007). I f t h is court chose to expressly revie w the merits of the trial court’s underly ing order –as I believe the majority has, in eff ect, done here –at that point it would be proper to consider fac ts from the proce eding which are not prese nt in the cer tified question. I t is worth noting that both parties have briefe d the merits of the trial court’s order deny ing Murug esh’s motion to dismiss as a matter separ ate f rom the ce rtified question. I believe it would be wise to rule on the merits of this

o rd er : n o t o nly has this court been fully briefe d on the rele vant fac ts and law, but ruli n g conclusively on the motion to dismiss would make our decision the law of the case and
preve nt the parties from arguing the issue ag ain once a final judgme nt is enter ed. Thus, ruling

on the court’s underlying order would allow both the trial court and the parties to move on, and it would preve nt the u s e of any more judicial resour ces on this issue. Acc ording ly
, I would rea ch the merits of the trial court’s decision, althoug h only as a separ ate issue. For the

rea sons discussed in the majority ’s o p i n i o n , I woul d find that it was not an abuse of discretion to deny

Murug esh’s motion to dismi ss.

I nde ed, I bel ie ve t he cer ti fi ed que st ion it sel f verges on imprope r bec aus e of the ext ent to 3 whic h it inc orp ora te s and re li es on the spe ci fi c fa ct s o f t h i s c a s e , ins te ad of pre sen ti ng a pur e que st ion of

la w.

-12-