2014 IL App (1st) 1 3 2 009 No. 1

- 1 3

- 2 009 Opinion filed August 13 , 2014 Third Division

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
FIRST DISTRICT

______________________________________________________________________________ In r e MARRIAGE OF ELZBIETA LASOTA , Petitioner

- Appell ee , and JANUSZ LUTEREK, Responde n t

- Appell ant

. ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

No. 11 D 940

The Honorable D ebra B. Walker , Judge, presiding.

______________________________________________________________________________ PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justice s Neville and Mason concurred in the judgment and opinion.

OPINION ¶ 1 While Janusz Luterek ended his nine

- year marriage to Elzbieta Lasota by obtaining a judgment in Poland where the couple married, that was far from the conclusion of their dissolution proceedings, which took place in Illinois , where the y had resettled before their marriage broke down. A fter the Polish court judgment was registered in Cook County, Elzbieta sought her share of the martial property and an award of temporary maintenance and attorney fees , all issues unaddressed by the Polish court

. Janusz argued , however, that t he court in Poland1

- 13

- 2 009

- 2

- and not the circuit court in Cook County had jurisdiction to deal with the marria ge, and , in any
event, res judicata barred Elz b ieta's petition

. T he circuit court rejected Janusz's contentions and held that under the Illinois Marriage and Dissolution of Marriage Act ( the Act) (750 ILCS 5/101 et seq . (West 2012) ) , jurisdiction existed here because Janusz had not served Elzbieta with
process and Elzbieta had not ma de a general appearance before the court in Poland

. The circuit
court then ordered Janusz to pay Elzbieta temporary maintenance and interim attorney fees and held him in civil contempt when he failed to comply. ¶ 2 Janusz seeks reversal of the order of civil contempt as void due to the circuit court 's erroneous determination that Elzbieta had not appeared before the Polish court

. T he record , however, suppo rts a finding that in addition to never having been served process, Elizbieta at no time submitted herself to the jurisdiction of the Polish court for purposes of the divorce

. Therefore, w e affirm. ¶ 3 BACKGROUND ¶ 4 Elzbieta Lasota married Janusz Luterek on July 8, 2000 , in Lublin, Poland. During their marriage , the parties , who did not have children, bought a home and moved to Inverness, Illinois

. On August 27, 2007, Janusz filed a petition for dissolution of marriage in Cook County

. Janusz voluntarily d ismissed the petition in September 2007, and in April 2008, filed a petition for dissolution of marriage in Lublin, Poland. On May 2, 2008, Elzbieta filed a petition for dissolution of marriage in Cook County. On March 24, 2009, the Cook County circuit court dismissed Elzbieta's marital dissolution petition on the basis that Janusz's petition was still pending in Poland. ¶ 5 On September 8, 2009, the court in Lublin entered a judgment for dissolution of the parties' marriage. The judgment did not a ddress the division of the parties' real estate and other1

- 13

- 2 009

- 3

- assets or the issues of maintenance, debts, or other financial issues. On January 31, 2011, Elzbieta filed a petition to register the Polish judgment in Cook County. Janusz filed a motion to dismi ss alleging, in part, that the circuit court lacked jurisd iction to hear Elz b i eta's petition. On March 10, 2011, after a hearing, the circuit court denied Janusz's motion to dismiss Elzbieta's petition and the Polish judgment for dissolution of marriage w as registere d in the Cook County

c ircuit c ourt. Elzbieta claimed the marital assets included $380,000 she transferred from a bank account in Poland to bank accounts in Illinois controlled by Janusz, as well as the marital home and real estate Janusz purch ased with money from their joint bank accounts. ¶ 6 On April 1, 2011, Elzbieta filed a petition in the circuit court requesting disposition of the parties' marital property under section 503(d) of the Act (750 ILCS 5/503(d) (West 2012)).
S ection 503(d) per mits the circuit court to dispose of marital property "f ollowing dissolution of marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property ." Id

. Thus, the circuit court's authority to d ispose of the parties' marital property depended on its finding that the Polish court lacked jurisdiction over Elzbieta. ¶ 7 On May 16, 2011, Ja nusz filed a motion to dismiss Elzbieta's petition for disposition of marital property

. Janusz alleged in count I that the circuit court lacked jurisdiction under section
2

- 619(a)(1) of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2

- 619(a)(1) (West 2012)), because the parties were divorced in Poland not Illinois, and the order registeri ng the Polish judgment did not confer jurisdiction under section 503(d) of the Act (750 ILCS 5/503(d) (West 2012)) on the circuit court to dispose of marital property. In count II, Janusz sought to bar Elzbieta's petition by "other affirmative ma tter" under section 2

- 619(a)(9) of the Code (735 ILCS 5/2

- 619(a)(9) (West 2012)) , including a postnuptial agreement the parties executed that1

- 13

- 2 009

- 4

- de lineates the parties' interest s in the marital assets under Polish law and Elzbieta 's participat ion in the Polis h divorce proceeding. In count III, Janusz sought to bar Elzbieta's petition under section 2

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

- 619(a)(3) (West 2012) ) , because on December 10, 2008, she filed in the Polish court a "petition to obtain payment , " which is s till pending and involves the same funds she now claims in the petition she filed in Cook County. ¶ 8 On September 16, 2011, the circuit court, after hearing arguments, dismissed counts II and III but found the evidence insufficient to rule on count I , alleging lack of jurisdiction. The court noted that under section 503(d) of the Act (750 ILCS 5/503(d) (West 2012)) , the court ha d subject matter jurisdiction to dispose of marital property if the Polish court lacked either personal jurisdiction over Elz bieta or jurisdiction to dispose of the property

. The court gave the parties 60 days to submit additional and relevant documents relating to the Polish dissolution of marriage proceedings and memorandums regarding the Polish court's personal jurisdiction over Elzbieta. ¶ 9 On March 16, 2012, having considered the supplemental evidence, the circuit court issued a well

- reasoned memorandum and order denying the remaining count I of Janusz's motion to dismiss

. The circuit court determine d under the doctrine of comity to follow the laws of Illinois because they provided greater due process safeguards than the laws of Poland

. The circuit court concluded that the Polish court did not have personal jurisdiction over Elzbieta because she had not been properly served with Janusz's p etition for d issolution of m arriage under section 2

- 203 (a) of the Code (735 ILCS 5/2

- 203 (a) (West 2012)) and no evidence in the record indicated that Elzbieta filed an appearance o r the equivalent of an appearance in the Pol ish dissolution of marriage proceeding

. The court also found that none of the documents submitted by Janusz , including answers to interrogatories and transcripts from proceedings in which Elzbieta and her Polish attorney did not appear or in which Elzbiet a's Polish attorney sought to1

- 13

- 2 009

- 5

- suspend the proceeding, show ed that Elzbieta submitted to the jurisdiction of the Polish court or waived her objection to personal jurisdiction under section 2

- 301 (a

- 5) of the Code (735 ILCS 5/2

- 301 (a

- 5) (West 2012))

. Thus, t he court found it had subject matter jurisdiction under section 503 (d) of the Act (750 ILCS 5/503(d) (West 2012)) to rule on her petition

. ¶ 10 On April 4, 2012, Janusz moved for reconsideration

. He a ttached to his motion a document entitled " R espondent's M otion and A nswer to P etition" from the Polish proceeding

. According to Jan u s z's motion, a translation of the petition ( a translation Elzbieta disputed) show ed that Elzbieta, through her Polish attorney, asked for dissolution of marriage due to the exclus ive fault of Janusz and for attorney fees. Janusz contended that this document established that Elzbieta consent ed to the Polish court's jurisdiction and deprive d the circuit court of jurisdiction. ¶ 11 The circuit court first n ot ed that Janusz fail ed to ci te legal authority for his motion to reconsider, which offered grounds for st r iking it sua sponte
. Instead, the court opted to address the merits of the motion under section 2

- 1203 (a) of the Code , which permits a party, within 30 days of the entry of a judgment in a non j ury case, to file a motion for a rehearing or retrial or a modification or vacation of the judgment. 735 ILCS 5/2

- 1203 (a) (West 2012)

. The court determined that it could not consider the petition attached to the motion, purported to be Elzbieta's consent to the dissolution of her marriage in Poland, because Janusz failed to exercise due diligence in obtaining the document and provid ing it to the court before the March 16, 2012, ruling. The circuit court stated further that even if Janu sz had exercised due diligence in producing El z bieta's response, it would not have changed the court's ruling

— " [t]he document as translated by Janusz (which Elzbieta argues is an inaccurate translation) contains multiple1

- 13

- 2 009

- 6

- statements which indicate Elzbieta objected to the Polish court's jurisdiction over the dissolution of marriage proceedings." Thus, the circuit court denied the motion to reconsider. ¶ 12 O n October 23, 2011, Elzbieta filed a petition s eeking temporary maintenance under section 504 (a) of the Act (750 ILCS 5/ 5 04 (a) (West 2012) ) , and interim and prospective attorney fees under section s 501(c

- 1) and 508(a) of the Act (750 ILCS 5/ 501(c

- 1), 508 (a) (West 2012))

. On August 10, 2012, Janusz moved to dismiss Elzbieta's petition , again arguing that the Polish judgment was final in all respects and that under the principle of res judicata , the circuit court lacked jurisdiction to grant the temporary relief requested

. ¶ 13 On September 14, 2012, the circuit court amended its order to include its jurisdiction to award both temporary maintenance and interim attorney fees. The court noted that section 504 permits the circuit court to award temporary or permanent maintenance "following dissolution of the marriage by a court which lacked personal juri sdiction." 750 ILCS 5/504(a) (West 2012).
B ased on its earlier finding that the Polish court lacked jurisdiction over Elzbieta , the circuit
court held it likewise had jurisdiction to award temporary maintenance. The same reasoning applied to awarding in terim attorney fees under section 508(a), which permits an award for the maintenance or defens e of any proceeding under the Act

. 750 ILCS 5/508(a) (West 2012). ¶ 14 On April 26, 2013, after an evidentiary hearing , the circuit court ordered Janusz to pay
Elz bieta $30,000 in attorney fees and monthly maintenance in the amount of $1,500 plus $1,000
per month toward the $27,000 retroactive judgment entered in Elzbieta's favor , commencing on May 1, 2013

. On May 29, 2013, after Janusz faile d to pay Elzbieta the m onthly and retroactive maintenance on May 1, the circuit court held Janusz in civil contempt. ¶ 15 On June 5, 2013, Janusz filed a notice of appeal from the circuit court 's March 16, 2012 , order denying his motion to dismiss Elzbieta's petition for disposition of property, the July 13,1

- 13

- 2 009

- 7

- 2012, order denying Janusz's motion to reconsider , the September 14, 2012, order finding it had jurisdiction to award temporary maintenance and interim attor ney fees, and the May 29, 2013, order holding him in civil contempt

. On June 24, the circuit court approved a $30,000 appeal bond and directed the money be held by the Cook County circuit court clerk until the end of the appeal. T he court also awarded El zbieta $17,500 in appellate attorney fee s but stayed the payment pending the mandate of the appellate court

. ¶ 16 ANALYSIS ¶ 17 Personal Jurisdiction ¶ 18 The circuit court's a uthority to dispose of the parties' marital property , t o order Janusz to
pay maintenance and attorney fees , and to hold him in contempt for disobeying its order is governed by s ection s 503(d) and 504(a) of the Act ( 750 ILCS 5/503(d), 504(a) (West 2012)) and
turns , here, on the circuit court's finding the Polish court without jurisd iction over Elzbieta when it entered its judgment dissolving the parties' marriage. Section 503(d) provides , "[ i ] n a proceeding for disposition of property following dissolution of marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse's non

- marital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors ***." (Emphasis added.) 750 ILCS 5/503(d) (West 2012).

¶ 19 Section 504 (a) similarly states :

" In a proceeding *** for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the cour t may grant a1

- 13

- 2 009

- 8

- temporary or permanent maintenance award for either spouse in amounts and for periods of time as the court deems just ***." 750 ILCS 5/504(a) (West 2012). ¶ 20 According to Janusz , the circuit court erred in finding it had personal jurisdiction under sections 503(d) and 504(a) of the Act ( 750 ILCS 5/503(d), 504(a) (West 2012)) to grant the relief requested by El z bieta . Although Janusz concedes that Elzbieta was not p roperly served under section 2

- 2 03 of the Code (735 ILCS 5/2

- 203 (West 2012)), he maintains she generally appeared and participated in the Polish proceeding to such an extent that she submitted herself to the Polish court's jurisdiction. Janusz points to powers of attorney Elzbieta gave two Polish lawyers to represent her , the plead ings those lawyers filed on her behalf, and a transcript from a September 8, 2009 hearing in Poland in which Elzbieta allegedly consented to an uncontested dissolution of marriage and agreed that each party should pay his or her own attorney fees.
Janusz contends Elzbieta's participation in the Polish proceeding through her attorneys constitutes a submission to jurisdiction and forfeiture of her right to later contest personal jurisdiction. He cites several Illinois decisions indicating that a party waive s objection to personal jurisdiction by participating in a proceeding and , thereby , acknowledging th e case. See, e.g., In re M arriage of Gorman , 284 Ill. App. 3d 171, 178 (1996) (finding that circuit court had personal jurisdiction in dissolution action o ver wife who was not served with a summons but who recognized and participated in the case by signing and returning the forms necessary to the dissolution of marriage proceedings, including the j udgment and settlement a greement ). He asks for reversal of the denial of his motion to dismiss Elzbieta's petition, the order granting her temporary maintenance and attorney fees, and the order holding him in contempt. ¶ 21 When the trial court bases its decision regarding personal jurisdiction over a party sole ly on documentary evidence, we review a trial court's dismissal for lack of personal jurisdiction de1

- 13

- 2 009

- 9

- novo. McNally v. Morrison , 408 Ill. App. 3d 248, 254 (2011). But when the trial court conducts an evidentiary hearing and hears testimony on jurisdiction al issues, as here , a manifest weight of the evidence standard has historically been applied. Madison Miracle Productions, LLC v. MGM Distribution Co. , 2012 IL App (1st) 112334 , ¶ 33 . Under this standard, this court should reverse a trial court's determi nation “only when the opposite conclusion is clearly evident or where the factual findings upon which it is based are unreasonable, arbitrary, or not based on the evidence.” 1350 Lake S hore Associates v. Randall , 401 Ill. App. 3d 96, 102 (2010). ¶ 22 We disag ree that Elzbieta submitted to the jurisdiction of the Polish court

. That Elzbieta, who resided in Illinois , hired Polish attorneys and signed powers of attorney allowing an
appearance on her behalf does not alone establish her participation in the Polish proceeding or her consent to the Polish court's jurisdictio n . A party can hire an attorney to appear solely to object to a court's jurisdiction. See 735 ILCS 5/2

- 301(a) (West 2012) ("Prior to the filing of any other pleading or motion other than a motio n for an extension of time to answer or otherwise appear, a party may object to the court's jurisdiction over the party's person, either on the ground that the party is not amenable to process of a court of this State or on the ground of insufficiency of p rocess or insufficiency of service of process, by filing a motion to dismiss the entire proceeding or any cause of action involved in the proceeding or by filing a motion to quash service of process.")

. ¶ 23 Further, the documents considered by the circui t c ourt were either discovery documents which, under Illinois Supr e me Court Rule 201(l) (eff. July 1, 2014) , do not constitute waiver of that party ' s objection to the court's jurisdiction or transcripts and documents that do not show Elzbieta submitted t o Polish jurisdiction. For instance, Janusz submitted an order from the Polish court that denied Elzbieta's motion to suspend proceedings and found it had jurisdiction1

- 13

- 2 009

- 10

- and an order that denied her request to reconsider its prior finding that it had jurisdi ction to hear the dissolution proce e ding. As the circuit court observed , these orders demonstrate that the jurisdiction of the Polish court was a matter of dispute between the parties. Thus, we agree with the circuit court that the materials from the Pol ish proceeding show that Elzbieta object ed to the Polish court's jurisdiction and did not acquiesce or otherwise submit herself to its jurisdiction. ¶ 24 Accordingly, the circuit court did not err in finding the Polish court lacked jurisdiction

over Elzbieta in the dissolution proceeding

. Moreover, it s finding of jurisdiction under section 503(d) of the Act (750 ILCS 5/503(d) (West 2012)) to hear Elzbieta's petition to dispose of the marital property and award temporary maintenance and interim attorn ey fees under sections 504(a) and 501(c

- 1) and 508(a) of the Act ( 750 ILCS 5/504(a), 501(c

- 1), 508(a) (West 2012)) was not against the manifest weight of the evidence

. ¶ 25 Denial of Motion to Reconsider ¶ 26 Janusz next contends the circuit court erred in tr eating his motion to reconsider the court 's March 16, 2012 , order as a section 2

- 1203 motion and in refusing to consider Elzbieta's response to his petition for dissolution of marriage on the ground that he failed to exercise due diligence in producing the document

. As noted, the circuit court found that Janusz had failed to cite any legal authority for his motion and decided that instead of striking the motion, it would consider the motion under section 2

- 1203 of the Code ( 735 ILCS 5/2

- 1203 (West 2012) )

. ¶ 27 Janusz asse r ts the March 16, 2012 , order denying his motion to dismiss was an interlocutory order and not a judgment and thus the circuit court erred in relying on section 2

- 1203 in denying his motion to reconsider. S ee Mund v. Brown , 393 Ill. App. 3d 99 4 , 996 (2009) ( denial of motion to dismiss is not final and appealable order under Illinois Supreme Court Rule 307 (eff. Feb. 26, 2010 ) but mere interlocutory order) )

.1

- 13

- 2 009

- 11

- ¶ 28 A motion to reconsider bring s to the trial court's attention newly discovered evidence not available at the time of the first hearing, changes in the law, or errors in the previous application of existing law to the facts. River Village I, LLC v. Central Insurance Cos. , 396 Ill. App. 3d 480, 492 (2009). A trial court is well within its discretion to deny the motion and ignore its contents when the motion contains material that was available before the hearing but never presented. Weidner v. Midcon Corp. , 328 Ill. App. 3d 1056, 1061

- 62 (2002). Litigants should not be allowed “to stand mute, lose a motion, and then frantically gather evidentiary material to show that the court erred in its ruling.” Gardner v. Navistar International Transportation Corp., 213 Ill. App. 3d 242, 248 (199 1). Rather, “the interests of finality and efficiency require that the trial courts not consider such late

- tendered evidentiary material, no matter what the contents thereof may be.” (Emphasis in original.) Id . at 248

- 49. Generally, the denial of a mot ion to reconsider is reviewed de novo. River Village I, LLC , 396 Ill. App. 3d

. at 492. But where the denial is based on new matters, such as additional facts that were not previously presented during the course of proceedings leading to the order being challenged, we employ an abuse of discretion standard of review. Id

. ¶ 29 The circuit court did not abuse its discretion in denying Janusz's motion to reconsider and in the process was justified in opting not to consider the new evidence . A s the circuit cour t noted, Elzbieta's petition for disposition of property was filed on April 1, 2011, and the circuit court did not rule on Janusz's motion to dismiss for almost a year, giving him ample time to produce th at document. In a September 16, 2011 order, the cir cuit court specifically asked the parties to provide the court with original and translated copies of all documents filed or submitted to the Polish court related to the Polish dissolution proceedings. Janusz produced numerous documents but did not produc e Elzbieta's response, with out providing a reason why1

- 13

- 2 009

- 12

- that document was not produced. Given that Janusz filed the diss o lu ti on of marriage petition in Poland and parti ci pated in the proceeding , the circuit court could reasonably conclude that
Janusz should have been able to produce a translated copy of Elzbieta's response along with the other documents he provided , particularly given its claimed significance to the issue of jurisdiction

. Thus, because the document relied on by Janusz in his motion to recon sider was available to him at the time the circuit court ruled on his motion to dismiss, the court did not abuse its discretion in refusing to consider it. ¶ 30 Further, we agree with the circuit court that even if the Elzbieta's response was taken into consid eration, it would not provide grounds for reversing the denial of Janusz's motion to dismiss. Although Janusz contends the document demonstrates that Elzbieta submitted to the jurisdiction of the Polish court, when read in its entirety, the response shows her continued objection to the Polish court's jurisdiction, stating that " a dissolution of marriage granted by a court in Poland would be against the law" and that because both parties last place of residence was in Inverness, Illinois, "the Lublin court is not the proper venue to hear this case." Throughout the duration of the Polish proceeding, Elzbieta, through her attorneys, objected to the jurisdiction of the Polish court. She continued to ob ject in this pleading, and the circuit court did not err i n finding that the document cannot be considered conclusive evidence showing she submitted herself to the Polish court's jurisdiction. Thus, the circuit court did not abuse its discretion in denying Janusz's motion to reconsider. ¶ 31 Contempt Finding ¶ 32 Ja nusz contends that based on the lack of jurisdiction of the circuit court, the contempt order entered was void and must be reversed. But having had jurisdiction under sections 504(a) , 501(c

- 1) , and 508(a) (750 ILCS 5/504(a), 501(c

- 1), 508(a) (West 2012)) to award temporary1

- 13

- 2 009

- 13

- maintenance and interim attorney fees, we find it did not err in holding Janusz in contempt when he failed to comply with t he order. ¶ 33 CONCLUSION ¶ 34 Th e orders of the circuit court are affirmed in all respects. ¶ 35 Affirmed.