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injunction in Illinois divorce

What is an Injunction? Should One be Ordered in Your Family Law Case?

Categorized as Divorce Litigation

In a recent case In re the Marriage of Roman-Kroczek, 2021 IL App (1st) 210613, the Illinois appeals court heard an appeal related to the award of attorney’s fees, which was not the first appeal in this divorce case. The wife’s name is Krystyna and the husband’s name is Bohdan. This appeal dealt with the issue of an injunction and how the appellate court found that the trial court did not utilize an injunction properly.

Case Background

The Parties Borrowed Money for a Florida Property

During their marriage, the couple purchased a property in Florida in 2006.  They did not have enough money for the real estate purchase, so Krystyna’s sister, Izabela, gave the couple a loan.  Izabela had given the couple loans before to buy real estate for other real estate purchases.  For the Florida property purchase, Izabela had given a loan of $350,000 and so far, the parties had only repaid $200,000. 

Izabela Intervenes in Her Sister’s Divorce Case

When the parties filed for divorce, Izabela asked the court to allow her to intervene in the proceedings so she could recoup the monies she had loaned her sister and brother-in-law.  Izabela filed a complaint against both Krystyna and Bohdan seeking $214,643.75, which consisted of principal, interest, and expenses she incurred in connection with loaning the money to the parties. 

The trial went forward on October 7, 2015.  Both Krystyna and Bohdan agreed to execute a lien on the Florida property so that Izabela was made whole.  After trial, the trial court entered a judgment dissolving the marriage and made a finding that the Florida property was worth $1 million and also had a mortgage of $615,918. The trial court found that Izabela was owed $214,643.75 from financing the property and also that she was owed up to $485,400 for money she had loaned Krystyna for living expenses and litigation costs. The trial court’s order awarded the Florida property to Izabela.

Izabela then paid off the mortgage on the Florida property for $712,871.86.  Izabela later sold her home in Winnetka and moved into the property in Florida with her husband.

This Was Not the First Appeal

Bohdan had previously filed an appeal where he was successful on a different issue. It had been four years since the case was remanded back to the trial court for a rehearing.  On remand, instead of the case coming to be heard again for trial, the case continued to be litigated.  Bohdan filed a motion for interim and prospective attorney fees because he did not have the funds necessary to litigate. Bohdan asked the court to sell property in Poland and the Florida property so he would have access to funds in the litigation.  He was unable to afford an attorney, and his wife was using funds given to her by her sister.  

Judge Rules in Favor of Bohdan to Sell Florida Property for Attorney’s Fees

The trial court issued a ruling on Bohdan’s motion for interim fees on January 29, 2020. The trial court found that the Florida property was a marital asset, and then ordered Izabela to secure a line of credit on the Florida property for $275,000 and distribute $200,000 of the funds generated by that loan to the parties’ attorneys while placing the other $75,000 in escrow. When Isabela was not able to get a loan or a line of credit to take out $275,000.00 as ordered, the court ordered the Florida home to be sold, and the monies received from the sale to be placed in escrow.

Sister Appeals the Court’s Injunction Against Her

Following the court’s order to sell the Florida property, Izabela filed her appeal.  At the heart of the appeal was whether the judge’s order was an injunction or not.  The Illinois Supreme Court has explained that an injunction is a “`judicial process operating in personam and requiring [a] person to whom it is directed to do or refrain from doing a particular thing.’ “ In re A Minor, 127 Ill. 2d 247, 261 (1989). 

Injunctions are common in family law cases and are used to either force someone to do something, or to refrain from doing something.  In this case, the trial court’s order requires Izabela to take certain actions, namely that she lists and sell real property in order to comply with the order.  Since Izabela was required to “do a particular thing,” and the order operated as a mandatory and coercive directive aimed at Izabela’s conduct, the appellate court found that Isabela was subject to an injunction.  The appellate court found that the trial court’s ruling for Isabela to sell her house was unreasonable and therefore amounted to an abuse of discretion.

Appellate Court Shows Frustration 10 Judges Have Worked on this Case and Its Still Unresolved

The appellate court clearly seemed aggravated with this case.  They commented that ten (10) judges had issued rulings in this case and the divorce was filed nine years ago.  When they overturned the first judgment and remanded the case back to the trial court four years ago, instead of making sure that the case was handled expeditiously and finalized, the case continued to languish.  The appellate court appeared to chastise the trial court for ordering the sale of the property for attorney’s fees instead of issuing final orders that would end the case.  The appellate court saw no justification for delaying the case longer and found that the interim injunctive order was unreasonable and that the order did nothing to end the case.

Court’s Remedy in the Injunction Was Not Narrowly Tailored

The remedy the trial court arrived at (selling the Florida property to pay interim attorney’s fees) was not narrowly tailored to achieve its desired purpose.  “An injunction should be reasonable and should only be as broad as is essential to safeguard the rights of the plaintiff.” In fact, the injunction entered by the court is a drastic remedy that only serves to delay the proceedings even longer, instead of giving the parties and the attorneys an incentive to bring the case close.  The requirements to get an injunction are fairly strict.  The plaintiff must be likely to succeed on the merits of the action, which means that your claim is true. You have to demonstrate that you would suffer irreparable harm if the injunction were not rendered (describe exactly what will happen to you), and the damage to you if the judge denies your request must outweigh the harm to the other party.

Appellate Court Says “No” to Selling Marital Assets to Satisfy Attorney’s Fees

The appellate court stated that the trial court may not order certain marital assets to be sold to directly satisfy an obligation for attorney fees before the divorce was finalized. The trial court’s injunction was subject to reversal on the basis that it is unreasonable and unnecessary under the circumstances. This case is going back to the trial court yet again.  

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