ILLINOIS OFFICIAL REPORTS

Appellate Court

In re Marriage of Murugesh, 2013 IL App (3d) 110228

Appellate Court

Caption

In re MARRIAGE OF DEEPALAKSHMI MURUGESH, PetitionerAppellee, and MURUGESH KASILINGAM, Respondent-Appellant.

District & No. Third District

Docket No. 3-11-0228

Filed

Rehearing denied

August 8, 2013

September 9, 2013

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 certified question as to whether the Illinois action filed by the wife

of a couple who were citizens and domiciliaries of India and were

married in India, but lived in Illinois, should be dismissed pursuant to

section 2-619(a)(3) of the Code of Civil Procedure because the husband

filed a divorce action before the wife filed her action or pursuant to the

doctrine of forum non conveniens, principles of comityor Illinois’s policy

of avoiding duplicative litigation was answered in the negative, since

section 2-619(a)(3) should not be used to dismiss an Illinois action in

favor of an Indian action, the relevant factors did not favor a dismissal

under the forum non conveniens doctrine, Illinois’s legitimate and

substantial relationship to the action precluded dismissal pursuant to the

principles of comity, and nothing in the policy of avoiding duplicative

actions required dismissal of the wife’s petition in favor of the husband’s

Indian action.

Decision Under 

Review

Appeal from the Circuit Court of Will County, No. 09-D-452; the Hon.

Robert P. Brumund, Judge, presiding.

Judgment Certified question answered.
Counsel on

Appeal

Sarane C. Siewerth and Shannon R. Burke (argued), both of Schiller,

DuCanto & Fleck LLP, of Chicago, and Timothy M. Daw, of Schiller,

DuCanto & Fleck LLP, of Wheaton, for appellant.

Jared B. Pinkus, Howard A. London (argued), and Katherine A. Grosh,

all of Beermann Pritikin Mirabelli Swerdlove LLP, of Chicago, for

appellee.

Panel JUSTICE LYTTON delivered the judgment of the court, with opinion.

Justice Carter concurred in the judgment and opinion.

Justice McDade specially concurred, with opinion.

OPINION

¶ 1 Petitioner Deepalakshmi Murugesh (Deepa) andMurugesh Kasilingam (Murugesh) were

married in India in early 1999. By September 1999, both parties were living in Illinois. In

March 2009, Murugesh filed a petition for dissolution of marriage in India. Two days later,

Deepa filed a petition for dissolution of marriage in Illinois. Murugesh filed a motion to

dismiss Deepa’s petition for dissolution. The trial court denied the motion and certified a

question for appeal. Murugesh filed a petition for interlocutory appeal, seeking an answer to

the certified question. We answer the certified question in the negative.

¶ 2 FACTS

¶ 3 Murugesh and Deepa are citizens of India. In 1997, Murugesh came to the United States

and started a company in Illinois. Murugesh and Deepa were married in India in January

1999, under the Hindu Marriage Act No. 25 of 1955. The marriage was solemnized in India

on August 22, 1999. In September 1999, Deepa moved to Illinois with Murugesh. One year

later, Murugesh and Deepa had a child. The child was born in Illinois and has resided in

Illinois since her birth.

¶ 4 In 2008 and 2009, Deepa spent extended periods in India. According to Murugesh, during

these periods, Deepa was living with another man and holding herself out as his wife. Deepa

returned to Illinois on March 10, 2009.

¶ 5 On March 14, 2009, Murugesh filed a petition under the Hindu Marriage Act, seeking

dissolution of his marriage to Deepa. The petition alleged that Deepa committed adulteryand

mental cruelty. Two days later, Deepa filed a petition for dissolution of marriage in Will

County, Illinois, alleging irreconcilable differences and mental cruelty. In April 2009,

Murugesh filed a motion to dismiss the Illinois divorce proceeding, pursuant to section 2-

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619(a)(3) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(3) (West 2010)),

arguing that a divorce action was already pending in India.

¶ 6 The trial court held a hearing on Murugesh’s motion to dismiss. At the hearing,

Murugesh testified that he owns two businesses in Illinois. He also claimed an ownership

interest in a business in India but said that he receives no income from it. Murugesh testified

that he and Deepa have $400,000 worth of jewelry in a safe deposit box in India. He also

testified that he paid an advance for a vacant lot in India on which he and Deepa planned to

build a home. Murugesh testified that he did not have any documentation with respect to that

property because it was purchased through his father with “black money.”

¶ 7 Deepa testified that except for one bank account with a nominal balance and a safe

deposit box containing jewelry, all of the couple’s assets are located in Illinois, including

Murugesh’s businesses, the couples’ primary bank accounts, their personal property, and

their marital residence. She testified that she did not own any land in India.

¶ 8 Since Murugesh filed his divorce action, neither he nor Deepa has been back to India.

Murugesh’s parents instituted two criminal actions against Deepa for adultery and filed a

charge of attempted assault against Deepa and her parents. If Deepa were to return to India

and be convicted of adultery, she could face up to two years in prison.1

¶ 9 In the Indian divorce action, Murugesh never personally appeared; rather, his father

appeared by proxy on his behalf. In an affidavit submitted to the Indian court, Murugesh

explained that he would be unable to appear in court in India because he was “preoccupied”

with “running a software business in the United States.” Deepa’s father participated in the

Indian divorce action on her behalf. Murugesh’s father lives in the citywhere Murugesh filed

his divorce action, while Deepa’s father lives nearly 200 miles away. It takes him five to

seven hours to travel that distance by car or train.

¶ 10 In March 2011, the trial court denied Murugesh’s motion to dismiss the Illinois

proceeding. In its oral ruling, the court found that (1) neither of the parties has been in India

since Murugesh filed his petition, (2) all of the proceedings in India have been by proxy, (3)

except for brief periods of time since August 1999, the parties have resided in Illinois, (4)

the parties’ only child was born in Illinois and is a citizen of the United States, (5) the only

assets of the parties located in India are a vacant lot, a relatively new corporation, a bank

account, and jewelry, (6) the only reason Murugesh filed his action in India was “because of

[Deepa’s] alleged marital infidelity and the consequences of the same under the Hindu

Marriage Act,” (7) Murugesh engaged in “forum shopping” so that he could “take advantage

of the Hindu Marriage Act,” (8) “substantially, if not all of the evidence, is located in this

jurisdiction,” and (9) the only evidence not available in Illinoisis proof of Deepa’s infidelity,

“which is not an issue in the United States.”

¶ 11 On March 16, 2011, Murugesh filed a motion requesting the Illinoistrial court to stay the

Murugesh provided this court with documentation that the two adultery charges against

1

Deepa have been dismissed. However, Murugesh and his family may be able to reinstate those

charges. Additionally, the attempted assault charges against Deepa and her parents appear to remain

pending.

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Illinois proceedings and certify the following question for appeal:

“Where citizens and domiciliaries of India were married in India under the Hindu

Marriage Act of 1955 but are currently living in Illinois; where grounds for divorce

and/or dissolution are alleged to have arisen in both the State of Illinois and the Country

of India, and that proof of those grounds would be located in each jurisdiction, and the

husband filed his divorce action in India before the wife filed a Petition for Dissolution

of Marriage in Illinois; where both courts have personal and subject matter jurisdiction

over the respective proceedings; and where the India court, according to the Hindu

Marriage Act of 1955, asserts exclusive jurisdiction to divorce parties married according

to Hindu law such that India would not recognize an Illinois judgment of dissolution in

a contested case, should the Illinois action be dismissed pursuant to 735 ILCS 5/2-

619(a)(3) and/or the doctrine of forum non conveniens, principles of comity and the

Illinois court’s exclusive opportunity to avoid duplicative litigation?”

¶ 12 In March 2011, Deepa filed with the Illinois court a petition to enjoin Murugesh from

participating in the Indian divorce proceeding. The trial court granted Deepa’s petition to

enjoin and also granted Murugesh’s motion to stay the Illinois proceeding and certify the

question for appeal. Murugesh appealed the trial court’s order enjoining him from

participating in the Indian divorce action. We affirmed the trial court’s decision to grant

Deepa’s petition to enjoin. In re Marriage of Murugesh, 2012 IL App (3d) 110204-U.

¶ 13 In April 2011, Murugesh filed a petition for leave to appeal with this court, seeking

review of the certified question. We initially denied Murugesh’s petition for leave to appeal.

Murugesh then appealed to the Illinois Supreme Court. The supreme court directed us to

vacate our earlier order denying Murugesh’s petition for leave to appeal and further directed

us to allow the petition for leave to appeal and answer the certified question. Murugesh v.

Kasilingam, No. 112555 (Sept. 28, 2011) (supervisory order).

¶ 14 ANALYSIS

¶ 15 Certified questions are governed by Illinois Supreme Court Rule 308 (Ill. S. Ct. R. 308

(eff. Feb. 26, 2010)). Rule 308 allows for permissive appeal of an interlocutory order

certified by the trial court as involving a “question of law as to which there is a substantial

ground for difference of opinion” and where an immediate appeal may “materially advance

the ultimate termination of litigation.” Ill. S. Ct. R. 308(a) (eff. Feb. 26, 2010).

¶ 16 Pursuant to Rule 308, we are limited to answering the specified certified question. Spears

v. Association of Illinois Electric Cooperatives, 2013 IL App (4th) 120289, ¶ 15. We should

not look beyond the question to consider the propriety of the court’s underlying order. In re

Estate of Luccio, 2012 IL App (1st) 121153, ¶ 17. We review a certified question de novo.

Id.

¶ 17 Here, the certified question asks us to determine whether, based on the facts of this case,

the Illinois action should be dismissed pursuant to (1) section 2-619(a)(3) of the Code (735

ILCS 5/2-619(a)(3) (West 2010)), (2) the doctrine of forum non conveniens, (3) principles

of comity, or (4) “the Illinois court’s exclusivity opportunity to avoid duplicative litigation.”

We will address each in turn.

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

¶ 19 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.” 735 ILCS 5/2-

619(a)(3) (West 2010). The purpose of section 2-619(a)(3) is “to avoid duplicative

litigation.” Kellerman v. MCI Telecommunications Corp., 112 Ill. 2d 428, 447 (1986).

¶ 20 When a party brings a motion under section 2-619(a)(3), the trial court has discretion to

determine if a dismissal is warranted. Id. A circuit court is not automatically required to

dismiss or stay a proceeding under section 2-619(a)(3) even when the “same cause” and

“same parties” requirements are met. Id.

¶ 21 The Illinois Appellate Court has twice ruled that section 2-619(a)(3) of the Code does not

apply to a divorce action pending in a foreign country. See Farah v. Farah, 25 Ill. App. 3d

481 (1975); Goldberg v. Goldberg, 27 Ill. App. 3d 94 (1975). In Farah, divorce proceedings

were filed in both Illinois and Lebanon. Farah, 25 Ill. App. 3d at 484-86. The husband

moved to dismiss the Illinois proceedings pursuant to section 48(1)(c) of the Civil Practice

Act, the predecessor to section 2-619(a)(3) of the Code. Id. at 486. The trial court denied the

husband’s motion, and the appellate court affirmed. The court stated that the full faith and

credit clause of the Constitution does not require Illinois courts to recognize or enforce

decrees of foreign countries. Id. at 493. The court held, “[i]f a final judgment entered by a

foreign court need not be enforced by the courts of Illinois under Constitutional principles

of full faith and credit, then it should necessarily follow a fortiori that the mere pendency of

a prior action in the court of a foreign country should not constitute a bar to further

proceedings before this court.” Id.

¶ 22 In Goldberg, divorce actions were pending in both Illinois and Israel. Goldberg, 27 Ill.

App. 3d at 97. The wife filed a motion to dismiss the Illinois action, pursuant to section

48(1)(c) of the Civil Practice Act. Id. The trial court denied the motion, and the appellate

court affirmed. Id. Citing its recent decision 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 foreign countries.

Id. Following Farah’s holding that “the mere pendency of a prior action in the court of a

foreign country would not constitute a bar to further proceedings before an Illinois court,”

the court in Goldberg ruled that the trial court correctly refused to dismiss the Illinois action

because of the proceedings in the Israeli court. Id. at 98.

¶ 23 We agree with the reasoning and analyses of Farah and Goldberg. The purpose of

section 2-619(a)(3) is “to avoid duplicative litigation.” Kellerman, 112 Ill. 2d at 447. This

purpose can be achieved only if the decree from the foreign tribunal will be recognized and

enforced in Illinois. A decree from another jurisdiction will be recognized and enforced in

Illinois if it is entitled to full faith and credit. See Miner v. Gillette Co., 87 Ill. 2d 7, 15

(1981). The full faith and credit clause applies to judgments issued by sister states. See id.

It does not normally apply to divorce judgments issued by foreign countries. See Clubb v.

Clubb, 402 Ill. 390, 399-400 (1949); In re Marriage of Mullins, 135 Ill. App. 3d 279, 281

(1985); Farah, 25 Ill. App. 3d at 493; Hager v. Hager, 1 Ill. App. 3d 1047, 1050 (1971);

Roberts v. Roberts, 11 Ill. App. 2d 86, 92 (1956). But see Janssen v. Janssen, 269 Ill. App.

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233, 242 (1933) (while divorce decrees are not automatically entitled to full faith and credit,

an Illinois court may, based on “comity, public policy or other reasons, give full faith and

credit to such decrees if it is so disposed”).

¶ 24 Where a foreign judgment is not recognized in Illinois, an Illinois court must litigate the

controversy. In such a case, duplicative litigation cannot be avoided, and section 2-619(a)(3)

cannot be applied to dismiss the Illinois action. If a foreign court’s judgment is recognized

in Illinois, section 2-619(a)(3) may be properly employed to avoid duplicative litigation.

¶ 25 However, Murugesh cites a federal court case that has called into question the continued

viability of Farah and Goldberg since the Illinois legislature’s enactment of the Uniform

Foreign Money-Judgments Recognition Act (Recognition Act) (735 ILCS 5/12-618 et seq.

(West 2010)). See Ball v. Deere & Co., 684 F. Supp. 1455, 1457 (C.D. Ill. 1988). The

Recognition Act provides that with certain exceptions, a “foreign judgment” is enforceable

“in the same manner as the judgment of a sister state which is entitled to full faith and

credit.” 735 ILCS 5/12-620 (West 2010). But, the Recognition Act’s definition of “foreign

judgment” is “any judgment of a foreign state granting or denying recovery of a sum of

money, other than *** a judgment for support in matrimonial or family matters.” 735 ILCS

5/12-618(b) (West 2010). Thus, the Recognition Act does not apply to a divorce judgment

entered by a foreign court. Philips Electronics, N.V. v. New Hampshire Insurance Co., 295

Ill. App. 3d 895, 903 (1998) (citing Nardi v. Segal, 90 Ill. App. 2d 432, 437 (1967)).

¶ 26 Because Illinois courts are not required to recognize or enforce divorce judgments from

foreign countries, the purpose of section 2-619(a)(3) of the Code to “avoid duplicative

litigation” is not achieved by dismissing an Illinois dissolution action in favor of a foreign

dissolution action. Section 2-619(a)(3) of the Code should, therefore, not be used to dismiss

the Illinois dissolution action in favor of the Indian action. See Farah, 25 Ill. App. 3d at 493;

Goldberg, 27 Ill. App. 3d at 97.

¶ 27 II. Forum Non Conveniens

¶ 28 Forum non conveniens is an “equitable doctrine founded in considerations of

fundamental fairness and the sensible and effective administration of justice.” Langenhorst

v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 441 (2006). The doctrine permits a trial court

to transfer a case when trial in another forum would better serve the ends of justice. Id.

¶ 29 The burden is on the party asking for the dismissal to show that the relevant factors

strongly favor transfer. Id. at 442. A defendant seeking transfer is required to show not only

that the plaintiff’s choice of forum is inconvenient but that the defendant’s choice is the

substantially more appropriate forum. In re Marriage of Mather, 408 Ill. App. 3d 853, 857

(2011). Unless the defendant demonstratesthat the relevant considerations “overwhelmingly

favor” a dismissal, the court should deny the defendant’s motion. Woodward v.

Bridgestone/Firestone, Inc., 368 Ill. App. 3d 827, 833 (2006).

¶ 30 Before weighing the relevant factors to consider in deciding a forum non conveniens

motion, a court must first decide how much deference to give the plaintiff’s choice of forum.

Langenhorst, 219 Ill. 2d at 448. The plaintiff’s choice of forum is a substantial factor in

deciding a forum non conveniens motion and should be accorded substantial deference when

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it is where the plaintiff resides. Id.; see Mather, 408 Ill. App. 3d at 858.

¶ 31 A court must then consider both private and public interest factors in deciding a forum

non conveniens motion. Langenhorst, 219 Ill. 2d at 443. 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.” Id. The public interest factors include: “(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 byadding litigation to alreadycongested court dockets.”

Id. at 443-44.

¶ 32 Here, all of the relevant factors weigh against dismissal of the Illinois divorce

proceeding. First, we must give substantial deference to Deepa’s chosen forum particularly

since she filed her action in the same county in which she and Murugesh reside. See Mather,

408 Ill. App. 3d at 858.

¶ 33 Similarly, the first private interest factor, the convenience of the parties, also favors

Illinoissince both parties reside and can easily appear in court in this state. NeitherMurugesh

nor Deepa has personally appeared in court in India. Indeed, Murugesh filed an affidavit with

the Indian court stating that he would not be able to personally appear there because he was

“preoccupied” with his life and business in the United States. This factor does not support

dismissal.

¶ 34 The next private interest factor, ease of access to evidence, also favors Illinois because

most of the relevant proofs in this case are located here. Although Murugesh argues that there

are witnesses in India, those witnesses are relevant only to Deepa’s alleged infidelity. The

remainder of the evidence in this case, including the property and assets of the parties, the

divorce grounds claimed by Deepa, and any issues related to their child, are almost entirely

located in Illinois. We agree with the trial court that “substantially, if not all of the evidence,

is located in this jurisdiction.” This factor does not support dismissal of the Illinois action.

¶ 35 The final private interest factor, practical issues for the parties, also weighs against

dismissal. In this case, the main issue is travel to the local county court and travel to India.

A trial in India would not be easy or inexpensive, particularly to Deepa, who has participated

in the proceedings there only through her father, who has to travel several hours to attend

court. On the other hand, a trial in Illinois would be much easier and less expensive for both

Deepa and Murugesh because they can easily travel to court in the county in which they both

reside.

¶ 36 The public interest factors also do not support dismissal of the Illinois action. The first

public interest factor, the interest in deciding controversies locally, weighs heavily against

dismissing the Illinois divorce case because there is a strong public policy in favor of

deciding marital controversies locally. See In re Marriage of Ricard, 2012 IL App (1st)

111757, ¶ 57. In domestic relations cases, there is a strong tie to the county where the marital

home is located and where the children of the marriage reside. Id. Here, the marital home and

the parties’ child are located in Illinois. Thus, Illinois is an appropriate forum.

¶ 37 The second public interest factor, the unfairness of imposing trial expenses and the

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burden of jury duty on residents of a forum that has little connection to the litigation, also

weighs against dismissing the Illinois action. Although this is not a jury matter, Illinois has

a strong connection to the parties and their marriage, since the parties have resided in Illinois

for almost all of their married lives. See id. Because of the parties’ strong connection with

Illinois, it would not be unfair to impose the expense of a trial on Illinois residents. The final

public interest factor, comparative congestion in the respective courts, also does not support

dismissal because Murugesh presented no evidence that there is more congestion in Illinois

courts than Indian courts. See id. ¶ 59.

¶ 38 Based on all of the relevant factors, dismissing the Illinois case pursuant to the doctrine

of forum non conveniens would not be appropriate.

¶ 39 III. Comity

¶ 40 Comity is “a recognition which one nation allows within its territory to the legislative,

executive or judicial acts of another nation, having due regard both to the international duty

and convenience and to the rights of its own citizens who are under the protection of its

laws.” Clubb, 402 Ill. at 399-400. Under the doctrine of comity, courts may, but are not

required to, defer to the laws or interests of a foreign country and decline to exercise

jurisdiction that is otherwise properly asserted. Performance Network Solutions, Inc. v.

Cyberklix US, Inc., 2012 IL App (1st) 110137, ¶ 34. When a properly filed action has a

legitimate and substantial relationship to Illinois, the action should not be dismissed pursuant

to principles of comity. See Whittmanhart, Inc. v. CA, Inc., 402 Ill. App. 3d 848, 855 (2010).

¶ 41 Recognition of a foreign judgment may be withheld where (1) it is contrary to the public

policy of the state where the recognition is sought, (2) the country in which the decree was

rendered does not recognize American decrees, or (3) the judgment was obtained in bad faith,

by fraud or by taking advantage of the foreign law. Hager v. Hager, 1 Ill. App. 3d 1047, 1051

(1971). Courts considering whether to give comity to a foreign judgment should also

consider whether the foreign court “can do complete justice to those affected by the decree.”

Codo, Bonds, Zumstein & Konzelman, P.C. v. Federal Deposit Insurance Corp., 148 Ill.

App. 3d 698, 703 (1986). Illinois courts have refused to recognize divorce decrees entered

by foreign countries under principles of comity. See Clubb, 402 Ill. at 399-400; Mullins, 135

Ill. App. 3d at 281; Farah, 25 Ill. App. 3d at 492; Hager, 1 Ill. App. 3d at 1052; Nardi, 90

Ill. App. 2d at 434-46.

¶ 42 The doctrine of comity does not support dismissal of the Illinois case for several reasons.

First, Illinois has a significant and substantial interest in the parties and the dissolution of

their marriage since theyare both residents of Illinois. See Ricard, 2012 ILApp (1st) 111757,

¶ 57. Second, as stated in the certified question, “India would not recognize an Illinois

judgment of dissolution in a contested case.” Because Indian courts will not recognize an

Illinois divorce decree, it would be inappropriate for an Illinois court to recognize the Indian

divorce decree under principles of comity. See Clubb, 402 Ill. at 395 (“[T]he comity of this

country does not require that judgments of a foreign country be recognized as conclusive in

this country, where such foreign country does not give like effect to our own judgments.”).

Third, the trial court found that Murugesh filed his divorce action in India solely to “take

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advantage of the Hindu Marriage Act” because it is more favorable to him. Since Murugesh

filed his action in India as a means to take advantage of foreign law, we should not grant

comity to the Indian court’s judgment. See Hager, 1 Ill. App. 3d at 1051.

¶ 43 Finally, complete relief can only be provided to the parties by an Illinois court. Pursuant

to the Uniform Child-Custody Jurisdiction and Enforcement Act (Act), a court can make an

initial child custody determination only if it is located in the “home state of the child.” 750

ILCS 36/201(a) (West 2010). The Act defines a child’s “home state” as the state in which

the child has lived with a parent for at least six consecutive months. 750 ILCS 36/102(7)

(West 2010). Since the parties’ child has lived in Illinois her entire life, only an Illinois court

can make an initial child custody determination with respect to her.

¶ 44 Under the facts and circumstances presented in the certified question, the Illinois trial

court was not required to dismiss the Illinois action pursuant to principles of comity.

¶ 45 IV. “Illinois court’s exclusive opportunity to avoid duplicative litigation”

¶ 46 It is the policy of Illinois to avoid duplicative litigation. See Combined Insurance Co. of

America v. Certain Underwriters at Lloyd’s, London, 356 Ill. App. 3d 749, 756 (2005).

However, that policy does not require Illinois courts to force litigants into the courts of

another jurisdiction. International Games, Inc. v. Sims, 111 Ill. App. 3d 922, 926 (1982)

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

¶ 47 We find nothing about Illinois’s policyof avoiding duplicative litigation that required the

trial court to dismiss the Illinois action in favor of the Indian divorce action. As explained

above, Illinois has a strong interest in deciding this dissolution action between two Illinois

residents. See Ricard, 2012 IL App (1st) 111757, ¶ 57. The trial court properly determined

that it would be inappropriate to force Deepa to litigate the dissolution action in a foreign

country where neither she nor Murugesh reside.

¶ 48 CONCLUSION

¶ 49 For the reasons set forth above, we answer the certified question in the negative. Section

2-619(a)(3) of the Code, the doctrine of forum non conveniens, principles of comity, and “the

Illinois court’s exclusive opportunity to avoid duplicative litigation” do not require the trial

court to dismiss this Illinois dissolution action involving two Illinois residents.

¶ 50 The certified question of the circuit court of Will County is answered.

¶ 51 Certified question answered.

¶ 52 JUSTICE McDADE, specially concurring.

¶ 53 I agree with the majority that the certified question should be answered in the negative;

however, I write separately for two reasons. First, I believe that as a matter of law, section

2-619(a)(3) of the Code of Civil Procedure may be used to dismiss an Illinois dissolution of

marriage action when there is already a dissolution action pending in a foreign country.

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Second, I disagree with the majority’s approach to answering the certified question.

¶ 54 First, I believe the majority’s interpretation of section 2-619(a)(3) is unduly restrictive:

a trial court should not be precluded from using section 2-619(a)(3) when there is a

dissolution proceeding already pending in a foreign country. I acknowledge that Illinois

statutes do not require that foreign dissolution of marriage decrees be given full faith and

credit: the Uniform Foreign Money-Judgments Recognition Act (Recognition Act) does not

apply to divorce or domestic relations matters (see 735 ILCS 5/12-618(b) (West 2010)), and 2

while the Illinois Marriage and Dissolution of Marriage Act allows for enforcement of

dissolution judgments from other states, it does not specifically mention foreign countries

(see 750 ILCS 5/511(c) (West 2012)). However, even though a foreign country’s dissolution

judgment is not entitled to be enforced in Illinois as a matter of right, in certain instances it

may still prevent duplicative litigation and justify a decision to dismiss an Illinois action in

favor of a foreign proceeding.

¶ 55 As the majority acknowledges, a foreign divorce judgment may be recognized and

enforced in Illinois under the principle of comity. See Janssen v. Janssen, 269 Ill. App. 233,

242 (1933). See also Ransom v. A.B. Dick Co., 289 Ill. App. 3d 663, 669 (1997) (comitymay

be given to an act of a foreign court as long as the foreign court possessed competent

jurisdiction and if the laws and public policy of the forum state are not violated). Where a

foreign proceeding is not entitled to full faith and credit but may be recognized under the

principle of comity, a trial court may use section 2-619(a)(3)to dismiss an Illinois action. See

Philips Electronics, N.V. v. New Hampshire InsuranceCo., 295 Ill. App. 3d 895, 904 (1998)

(even if the Recognition Act did not apply to a judgment entered by an English court, the

decree could be recognized under principles of comity, and therefore it was proper to

consider whether the Illinois action should be dismissed in favor of the pending English

action). In instances where a foreign divorce decree may be recognized in Illinois, then it

could prevent duplicative litigation to stay or dismiss an Illinois action in favor of the foreign

country’s proceeding. Accordingly, allowing the trial court the discretion to use section 2-

619(a)(3) when there is a dissolution proceeding already pending in a foreign country would

be consistent with the purpose of the statute. See Kellerman v. MCI Telecommunications

Corp., 112 Ill. 2d 428, 447 (1986) (“Section 2-619(a)(3) is designed to avoid duplicative

litigation and is to be applied to carry out that purpose.”).

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

cases, while correctly decided, go too far in establishing a rule that an Illinois dissolution

action cannot be stayed or dismissed in favor of a foreign country’s dissolution proceeding.

In both Farah and Goldberg, the appellate court affirmed the trial court’s denial of the

appellant’s motion to dismiss. Farah v. Farah, 25 Ill. App. 3d 481, 493 (1975); Goldberg

v. Goldberg, 27 Ill. App. 3d 94, 97-98 (1975). Both courts decided to affirm the trial court’s

In 2012, the Recognition Act was repealed and recodified, with several changes. See 735

2

ILCS 5/12-661 etseq. (West 2012). The current version of the Recognition Actstill exemptsforeign

judgments in connection with divorce or domestic relations matters, however. See 735 ILCS 5/12-

663(b)(3) (West 2012).

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order on the basis that Illinois was not required to recognize the judgment of a foreign

country’s court. Farah, 25 Ill. App. 3d at 493; Goldberg, 27 Ill. App. 3d at 97-98. While

neither case speaks to the standard of review the court was applying, under current practice

a trial court’s denial of a motion to dismiss under this statute would be reviewed for an abuse

of discretion. See Kapoor v. Fujisawa Pharmaceutical Co., 298 Ill. App. 3d 780, 786 (1998).

Whether a foreign judgment would be enforceable in Illinois is an important factor for the

trial court to consider when faced with a motion to dismiss an Illinois action in favor of the

foreign dissolution proceeding. Therefore, I would read Farah and Goldberg as establishing

that it is not an abuse of discretion to deny a motion to dismissin favor of a foreign country’s

dissolution of marriage proceeding when that judgment would not be enforceable in Illinois.

This does not mean, however, that the trial court cannot exercise its discretion to dismiss an

Illinois action if the trial court believes the foreign judgment would be enforceable under the

principle of comity and the other circumstances warrant dismissal.

¶ 57 Other considerations also support giving trial courts the ability to apply section 2-

619(a)(3) when there is a foreign dissolution of marriage case pending. The doctrine of forum

non conveniens allows the dismissal of a dissolution action in favor of a foreign country’s

forum. See In re Marriage of Ricard, 2012 ILApp (1st) 111757, ¶¶ 39-41 (finding that forum

non conveniens does not require that the alternate forum be domestic in a dissolution of

marriage case). While forum non conveniens and section 2-619(a)(3) are distinct, they are

“interrelated procedural devices which may and should be used together when another action

is pending and defendant feels that one forum is inconvenient.” A.E. Staley Manufacturing

Co. v. Swift &Co., 84 Ill. 2d 245, 251 (1980). Given the close connection between these two

procedural devices, it would be confusing and inconsistent for one to apply when there is a

foreign divorce case pending while the other cannot. Finally, it is important to recognize that

section 2-619(a)(3) is discretionary in nature. See Staley, 84 Ill. 2d at 253. Isee no reason to

summarily limit, as Farah and Goldberg purport to do and as does the majority, the

discretion of the trial court in these situations. Therefore, I would find that section 2-

619(a)(3) may be invoked where there is a dissolution of marriage case already pending in

a foreign country.

¶ 58 Myother concern is with the majority’s approach to answering the certified question. The

majority states that the certified question calls for us to determine whether, “based on the

facts of this case,” the Illinois action should be dismissed pursuant to section 2-619(a)(3), 

forum non conveniens, comity, or the Illinois court’s exclusive opportunity to avoid

duplicative litigation. See supra ¶ 17. The majority then goes on to cite facts from the

underlying case–facts which are not set forth in the certified question–to bolster its decision

that dismissal is not required under the four specified grounds. See, e.g., supra ¶¶ 33, 42. I

disagree with this approach. It would be improper for a certified question to merely call for

the appellate court to apply the law to the underlying facts of a case. See Thomas v. Page,

361 Ill. App. 3d 484, 494-95 (2005). Pursuant to Illinois Supreme Court Rule 308, a certified

question should present a question of law about which substantial grounds for disagreement

exist. See Ill. S. Ct. R. 308(a) (eff. Feb. 26, 2010); Solon v. Midwest Medical Records Ass’n,

Inc., 236 Ill. 2d 433, 439 (2010). Rule 308 “was never intended to serve as a vehicle to

appeal interlocutory orders involving little more than an application of the law to the facts

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of a specific case.” Thomas, 361 Ill. App. 3d at 494. It is partly for this reason that the 3

reviewing court should confine its decision to answering the certified question itself and not

expand the question under review. See Fosse v. Pensabene, 362 Ill. App. 3d 172, 177 (2005).

¶ 59 By answering the question “based on the facts of this case,” the majority does not merely

answer the certified question, but instead expands the question under review. As far as is

practicable, I would answer the certified question as an abstract question of law, using only

the factual predicates specified in the question itself. My answer would still be negative:

dismissal is not required, as a matter of law, under any of the four grounds. This is because

a trial court may exercise broad discretion in making a determination on any of grounds

stated, taking into account the specific facts of the case, and nothing in the certified question

itself leads me to conclude that refusing to dismiss the Illinois action would constitute an

abuse of discretion.

¶ 60 An appellate court may, in the interests of justice and the need to reach an equitable

result, review the propriety of the underlying order that gave rise to the certified question.

Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 153 (2007). If this court chose to

expressly review the merits of the trial court’s underlying order–as I believe the majority has,

in effect, done here–at that point it would be proper to consider facts from the proceeding

which are not present in the certified question. It is worth noting that both parties have

briefed the merits of the trial court’s order denying Murugesh’s motion to dismiss as a matter

separate from the certified question. I believe it would be wise to rule on the merits of this

order: not only has this court been fully briefed on the relevant facts and law, but ruling

conclusively on the motion to dismiss would make our decision the law of the case and

prevent the parties from arguing the issue again once a final judgment is entered. Thus, ruling

on the court’s underlying order would allow both the trial court and the parties to move on,

and it would prevent the use of any more judicial resources on this issue. Accordingly, I

would reach the merits of the trial court’s decision, although only as a separate issue. Forthe

reasons discussed in the majority’s opinion, I would find that it was not an abuse of

discretion to deny Murugesh’s motion to dismiss.

Indeed, I believe the certified question itself verges on improper because of the extent to 3

which it incorporates and relies on the specific facts of this case, instead of presenting a pure

question of law.

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