{ "id": 3438661, "name": "In re MARRIAGE OF BERTRAM R. SCHWARTZ, Petitioner-Appellee, and JEANNE W. SCHWARTZ, Respondent-Appellant", "name_abbreviation": "In re Marriage of Schwartz", "decision_date": "1985-03-08", "docket_number": "No. 84\u20142142", "first_page": "351", "last_page": "356", "citations": [ { "type": "official", "cite": "131 Ill. App. 3d 351" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "458 N.E.2d 1141", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 1009", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3593708 ], "pin_cites": [ { "page": "1014" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/1009-01" ] }, { "cite": "451 N.E.2d 825", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "96 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3114648 ], "year": 1983, "pin_cites": [ { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0432-01" ] }, { "cite": "376 N.E. 2d 1382", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "71 Ill. 2d 563", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5450012 ], "weight": 2, "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0563-01" ] }, { "cite": "374 N.E. 2d 916", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "58 Ill. App. 3d 579", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5626469 ], "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/0579-01" ] }, { "cite": "379 N.E.2d 1228", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 671", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5622478 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0671-01" ] }, { "cite": "451 N.E. 2d 1338", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 717", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3520982 ], "pin_cites": [ { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0717-01" ] }, { "cite": "362 N.E .2d 815", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "48 Ill. App. 3d 874", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3372828 ], "pin_cites": [ { "page": "879" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/48/0874-01" ] }, { "cite": "357 N.E.2d 1307", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 220", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2810482 ], "year": 1977, "pin_cites": [ { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0220-01" ] }, { "cite": "368 N.E.2d 990", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. App. 3d 477", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3394453 ], "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0477-01" ] }, { "cite": "422 N.E.2d 1166", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 495", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3107706 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "500" }, { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0495-01" ] }, { "cite": "78 Harv. L. Rev. 993", "category": "journals:journal", "reporter": "Harv. L. Rev.", "year": 1965, "pin_cites": [ { "page": "1056" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 606, "char_count": 10954, "ocr_confidence": 0.761, "pagerank": { "raw": 3.282201459718292e-07, "percentile": 0.8708254805589052 }, "sha256": "ce53bbb1b1cb0df36cd437bcde6eb5539b0c8c7e7fe74e5d110f800ad0e900ab", "simhash": "1:4bfce0c673de5ff4", "word_count": 1759 }, "last_updated": "2023-07-14T21:36:35.805575+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF BERTRAM R. SCHWARTZ, Petitioner-Appellee, and JEANNE W. SCHWARTZ, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nThis is an interlocutory appeal by respondent, Jeanne W. Schwartz, from an order granting a preliminary injunction restraining her from interfering with petitioner, Bertram Schwartz\u2019 use, occupancy and enjoyment of a condominium in the State of Florida. Respondent contends that (1) the trial court\u2019s granting of the preliminary injunction was improper, and (2) the petitioner\u2019s conduct barred him from seeking injunctive relief.\nWe reverse.\nPertinent to our disposition are the following.\nThe parties were married on December 17, 1949. In June of 1984, Bertram Schwartz, a builder/developer doing business in Illinois and Florida, filed a petition for dissolution of his 34-year marriage to his wife, Jeanne. In his petition for dissolution, he alleged that respondent had been guilty of mental cruelty towards him; that most of the property acquired by the parties during their marriage had been accumulated through his actual financial contributions; and that this acquired property had been put into respondent\u2019s name solely for business purposes. On the same day, the court issued a temporary restraining order against respondent which enjoined her from the withdrawal, transfer, destruction, etc., of any or all of the parties\u2019 property. The trial court later extended this order so that it applied mutually to both parties.\nIn her answer to the petition, respondent denied committing any wrongful acts, and she alleged that petitioner had given her many gifts of property over the term of the marriage \u2014 gifts which she alleged were now in her name and not marital property. An agreed order restraining and enjoining both parties from interfering with each other or disposing, damaging, etc., any mutual property was entered on July 26,1984.\nIn August of 1984, petitioner filed an emergency petition for injunctive relief against respondent. In his petition, he alleged that respondent was prohibiting his use of the parties\u2019 condominium located in Boca Raton, Florida; that although the title to this condominium was in her name alone, it was marital property; and that he needed to reside in the condominium while in Florida on business. His petition further alleged that although respondent had not used the Florida premises for the past 18 months, petitioner himself had consistently used the condominium up until V-lz weeks prior to his filing of this petition, when he received notice from the building\u2019s management personnel that he would be denied access to the premises upon order of respondent. Finally, petitioner alleged that his use of the condominium would result in no prejudice to respondent because of the restraining order still in effect, and he prayed that the court enjoin respondent from prohibiting his use and access to the condominium.\nAfter hearing the parties\u2019 testimony regarding the origins of ownership of the condominium, the trial court granted petitioner\u2019s request for relief on the basis that the Florida property was likely to be found marital property, and ordered that respondent should be restrained from interfering in any way with the \u201cpetitioner\u2019s use, occupancy and enjoyment of the parties\u2019 condominium in the state of Florida during the pendency of the above cause of action.\u201d\nRespondent appeals from this order.\nOpinion\nRespondent initially contends that the trial court abused its discretion in granting the petition for injunctive relief because petitioner failed to prove that respondent had interfered with petitioner\u2019s access, use and enjoyment of the condominium. Conversely, petitioner argues that his verified petition, together with his testimony at the hearing, on the petition, provided sufficient evidence for the trial court to have properly inferred that respondent\u2019s actions interfered with his rights to enter and use the Florida premises. At oral argument, counsel for respondent admitted that the condominium management had acted pursuant to respondent\u2019s directive, therefore the argument on these facts has been resolved. However, we believe that these admitted facts fail to justify the injunction in issue.\nAn injunction is an equitable remedy to be used sparingly, with judicial restraint and due continence, and only in a clear and plain case. (O\u2019Brien, Chancery Practice: Injunctions and Emergency Relief, 54 Chi. B. Rec. 21 (1972).) An institutional reluctance to undertake the supervision of specific relief, a social bias against interference with private ordering and a fear of encouraging unscrupulous litigants to institute unfounded actions are all constants that militate against preliminary injunctive relief. (Note, Developments in the Law; Injunc tions, 78 Harv. L. Rev. 993, 1056 (1965).) It is not the purpose of the preliminary injunction to determine controverted rights or decide the merits of the case. (Baal v. McDonald\u2019s Corp. (1981), 97 Ill. App. 3d 495, 500, 422 N.E.2d 1166.) A preliminary injunction is merely provisional in nature, its office being merely to preserve the status quo until a final hearing on the merits. Spunar v. Clark Oil & Refining Corp. (1977), 53 Ill. App. 3d 477, 481, 368 N.E.2d 990.\nTo warrant the issuance of a preliminary injunction, \u201ca party must clearly show a need to preserve the status quo \u2014 in that he will be susceptible to irreparable damage if the injunction does not issue.\u201d (Baal v. McDonald\u2019s Corp. (1981), 97 Ill. App. 3d 495, 501, 422 N.E.2d 1166.) \u201cThe status quo to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending controversy.\u201d (Edgewater Construction Co. v. Percy Wilson Mortgage & Finance Corp. (1976), 44 Ill. App. 3d 220, 228, 357 N.E.2d 1307.) A preliminary injunction, therefore, is not proper where it tends to change the status quo of the parties rather than preserve it. Rock Island Bank v. Paul (1977), 48 Ill. App. 3d 874, 879, 362 N.E .2d 815.\nIn order for a preliminary injunction to issue, the party seeking the injunction must carry the burden of persuasion on four issues: (1) that he possesses a clearly ascertained right which needs protection; (2) that he will suffer irreparable harm without the injunction; (3) that there is no adequate remedy at law for his injury; and (4) that he is likely to be successful on the merits of his action. (Lawter International, Inc. v. Carroll (1983), 116 Ill. App. 3d 717, 729, 451 N.E. 2d 1338.) In addition, the trial court must balance the equities or relative inconvenience to the parties and determine thereby whether a greater burden will be imposed on the defendant by granting the injunction than on the plaintiff by denying it. (ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1978), 62 Ill. App. 3d 671, 379 N.E.2d 1228.) The sole question on review is whether the trial court abused its discretion in granting or denying the injunction. Sports Unlimited, Inc. v. Scotch & Sirloin of Woodfield, Inc. (1978), 58 Ill. App. 3d 579, 584, 374 N.E. 2d 916.\nIn the case at bar, the trial court based its findings on the likelihood of the success of petitioner\u2019s argument that he had the right to enter and use the Florida condominium because it would eventually be found to be \u201cmarital property.\u201d After careful review of the record in this case, we believe that the trial court was premature in its determination that petitioner had a right to enter the condominium and that the injunction should therefore issue.\"\nA court looking forward to the likelihood of success that property would eventually be found to be \u201cmarital property\u201d misconceives the difference between the nature of dissolution of marriage proceedings and \u201cmarital property.\u201d The nature of dissolution proceedings is to determine the status of the parties and to terminate the legal relationship between husband and wife by an act of law. \u201cThe term \u2018marital property\u2019 is a nomenclature devised to realize an equitable distribution of property upon termination of the marriage.\u201d (Emphasis added.) (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 573, 376 N.E. 2d 1382.) Section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 503) directs the court to divide the couple\u2019s property into marital and nonmarital portions and to assign each spouse his or her nonmarital share. However, under the Act, operation of the term \u201cmarital property\u201d does not trigger until the time of dissolution. (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 376 N.E. 2d 1382.) It is only property owned at the time of the judgment of dissolution that the court may classify as \u201cmarital property,\u201d and property owned separately by the spouse before dissolution may be disposed of as he/she deems fit, absent any contrary order of the court. (In re Marriage of Olson (1983), 96 Ill. 2d 432, 441, 451 N.E.2d 825.) The court has power to adjust and determine the rights of one party in the property of the other only where a divorce has been granted. In re Marriage of Pahlke (1983), 120 Ill. App. 3d 1009,1014, 458 N.E.2d 1141.\nIn the present case, we believe that the trial court failed to do justice to the parties in its focus on the issue of the likelihood of success as to the \u201cmarital property.\u201d Rather, the trial court should have focused on the preservation of the status quo among the parties so as to determine whether it was proper to grant petitioner\u2019s petition for injunctive relief. The last actual, peaceable, uncontested status in existence here was one where respondent had title to the condominium which she permitted petitioner to use. The trial court\u2019s order altered that status quo by taking away her right to exclude whomever she wished from possession of her property.\nAlthough we can envision cases whereby the preservation of the status quo of the parties would require the issuance of an injunction of this nature, we believe that the trial court\u2019s improper focus on the likelihood of success in a \u201cno win\u201d situation, such as the dissolution proceeding we are presented with here, instead of a focus on the preservation of the status quo of the parties, was an abuse of its discretion.\nBecause of our determination that the trial court abused its discretion in granting injunctive relief where that relief did not preserve the status quo of the parties, we need not reach respondent\u2019s argument that petitioner\u2019s \u201cunclean hands\u201d barred him from seeking injunctive relief.\nFor the foregoing reasons, we reverse the order of the trial court granting injunctive relief.\nReversed.\nSULLIVAN and PINCHAM, JJ., concur.", "type": "majority", "author": "JUSTICE LORENZ" } ], "attorneys": [ "George B. Collins and Christopher Bargione, both of Collins, Amos & Uscian, of Chicago, for appellant.", "Arthur M. Solomon, of Solomon & Behrendt, of Chicago (Herbert A. Glieberman, of counsel), for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF BERTRAM R. SCHWARTZ, Petitioner-Appellee, and JEANNE W. SCHWARTZ, Respondent-Appellant.\nFirst District (5th Division)\nNo. 84\u20142142\nOpinion filed March 8, 1985.\nGeorge B. Collins and Christopher Bargione, both of Collins, Amos & Uscian, of Chicago, for appellant.\nArthur M. Solomon, of Solomon & Behrendt, of Chicago (Herbert A. Glieberman, of counsel), for appellee." }, "file_name": "0351-01", "first_page_order": 373, "last_page_order": 378 }