{
  "id": 2640411,
  "name": "NATILA M. KUKLA, Plaintiff-Appellant, v. FREDERICK T. KUKLA et al., Defendants-Appellees",
  "name_abbreviation": "Kukla v. Kukla",
  "decision_date": "1989-06-06",
  "docket_number": "No. 1\u201488\u20142779",
  "first_page": "585",
  "last_page": "589",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T17:19:22.278456+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "NATILA M. KUKLA, Plaintiff-Appellant, v. FREDERICK T. KUKLA et al., Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "JUSTICE SCARIANO\ndelivered the opinion of the court:\nPlaintiff appeals from the dismissal with prejudice of her complaint against her spouse, whom she is divorcing, and his employer, alleging invasion of privacy and intentional infliction of emotional distress. We affirm.\nPlaintiff filed a two-count complaint against her husband, Frederick T. Kukla, his employer Kukla Press, Inc., and Stanley Kukla, Frederick\u2019s brother and an officer of Kukla Press, alleging that Frederick harassed her by repeatedly calling her on a car telephone furnished by his employer and by \u201ccoming to her house and acting in a threatening and intimidating manner.\u201d Count I of the complaint mixes allegations of invasion of privacy with an implied right of action arising out of the violation of an order entered as part of the dissolution of marriage action between plaintiff and Frederick, which provided that plaintiff and Frederick are \u201cmutually restrained from annoying and harassing each other in any way and more specifically, from telephoning the other, except that *** [Frederick] may telephone the marital home for the sole purpose of speaking with his children.\u201d Count II is premised upon intentional infliction of emotional distress.\nIn response to the complaint, defendants filed a motion to dismiss, pursuant to section 2 \u2014 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 615), contending that the domestic relations division of the circuit court of Cook County retained jurisdiction over alleged violations of orders it has entered. A hearing on the motion was scheduled for July 28, 1988, and, on that date, counsel for defendants informed the trial judge that he h\u00e1d agreed to plaintiff\u2019s request that the motion be continued for 30 days, to allow her time to file a response. The judge answered as follows:\n\u201cWhat we do on 615 motions is, all motion judges try to see whether any briefs are necessary. I would like to know arguably what the defense is particularly to Count I. So I want you to pick a date that is convenient for you' *** for status only and ask opposing counsel to come in with you and just tell me, \u2018arguably\u2019 what his defense is. * * *\nI just like to know if it is necessary to have briefs.\u201d\nThe trial judge held a hearing on the motion on August 5, 1988, during which he denied plaintiff leave to file a written response and dismissed the complaint with prejudice. Plaintiff appeals that order as it applies to Frederick and Kukla Press, but not as to Stanley.\nPlaintiff argues that she has a cause of action for Frederick\u2019s violation of a restraining order entered by the domestic relations division because a recent amendment to the rights of married women act provides that \u201c[a] husband or wife may sue the other for a tort committed during the marriage.\u201d (Ill. Rev. Stat. 1987, ch. 40, par. 1001.) In dismissing the complaint, the trial court stated:\n\u201cI would have to sustain the motion to dismiss this for the simple reason that those statutes that you pose have absolutely nothing to do with, as far as I am concerned, with allegations of a complaint that really seeks a remedy that belongs in the court of domestic relations. All these allegations are strictly those of harassment, of non-compliance with the court orders in the court of domestic relations and alleged physical and mental anguish and \u2014 physical injury and mental anguish as a result thereof. If we were to rule otherwise, we\u2019d open up the floodgates to the law division to everyone who has a domestic relations matter to come into this court for compensatory damages based upon non-compliance with court orders in the court of domestic relations. And obviously, that can\u2019t be done at all.\u201d\nIn response to plaintiff\u2019s counsel\u2019s request for leave to \u201cprepare something in writing,\u201d the trial judge replied, \u201cIt\u2019s not necessary.\u201d\nIt appears that plaintiff is also claiming that the trial court erred in not allowing her to file an amended pleading, and she seeks leave to do so in her notice of appeal; however, the trial court did not prohibit her from filing such a pleading, as is evidenced by the following colloquy:\n\u201cMS. BIEDERMAN: Well, your Honor, to protect my client\u2019s rights, is your ruling that if there were no divorce action, that we would have a cause of action?\nTHE COURT: I am not saying anything other than there is no cause of action in this suit, period. That\u2019s all I can\u2014\nMS. BIEDERMAN: And if I want to take an appeal and if I decide that I needed to plead additional matters so that it was complete for review by the Appellate Court, are you saying that I have no right to\u2014\nTHE COURT: To amend you mean?\nMS. BIEDERMAN: To amend, yes.\nTHE COURT: Oh, no. Just a minute now. Obviously, you always have a right to come in, as anyone does, to vacate a final order. This is a final order, number one.\nNumber two, it\u2019s appealable because there are no other parties, so 304(a) is not involved. You can always come in on a motion to vacate any final order within 30 days.\nThe cases hold that in order to vacate a final order that dismisses an action as opposed to striking, you must tender a new pleading at the time. There are many cases on that. So you are protected in that regard. Anything else?\nMS. BIEDERMAN: No. As I said, I have no leave to refile. Is that the language your Honor wants put in?\nTHE COURT: It\u2019s superfluous. It\u2019s \u2014 for the record, so you know, it\u2019s superfluous. You don\u2019t need all that language.\u201d\nThe order appealed from provides that \u201cplaintiff\u2019s complaint is dismissed with no leave to refile.\u201d Plaintiff asserts that the trial judge\u2019s comments \u201cdemonstrated that paying a fee to vacate and filing an amended complaint would be hopeless.\u201d\nWe agree with defendants that the amendment to the rights of married women act (Ill. Rev. Stat. 1987, ch. 40, par. 1001) did not expand tort liability between husband and wife, but merely abolished the defense of the interspousal tort immunity. Moreover, as defendants assert, the trial court\u2019s ruling was not that one spouse cannot sue another, merely that when the conduct underlying the tort action has been regulated by a previous order of the domestic relations court, that court retains jurisdiction to fashion relief for a violation of its order. Defendants also correctly maintain that the contumacious violation of an injunction does not give rise to damages to the party offended by the violation, citing Eberle v. Greene (1966), 71 Ill. App. 2d 85, 217 N.E.2d 6. In that case, plaintiff brought a contempt proceeding, alleging that defendant had failed to comply with an injunction requiring him to restore land along a fence dividing the parties\u2019 property. On appeal, defendant argued that the trial court erred in awarding plaintiff damages. The court agreed, stating:\n\u201cThe enforcement of a court\u2019s decree by civil contempt is not the enforcement of a private right but rather the process of the court to secure obedience to its decrees, the benefit to the party invoking the aid of the court being merely incidental. *** The established rule in Illinois is that the court may imprison or fine for contempt of its orders but is without authority to recompense [p]laintiff for his damages.\u201d (71 Ill. App. 2d at 93.)\nDefendants further claim that the order which Frederick allegedly violated is in the nature of an injunction and that plaintiff is attempting to avoid \u201cthe simple, obvious remedy of a rule to show cause for an alleged violation of a restraining order.\u201d\nThe basis of plaintiff\u2019s complaint is Frederick\u2019s alleged -violation of a restraining order, entered during their divorce action, which was ongoing, indeed was \u201cin the middle of *** trial,\u201d at the time plaintiff filed the instant\u2019 action. For reasons best known to plaintiff, she chose not to seek relief in the domestic relations division, the court which issued the restraining order and had jurisdiction to enforce it, but instead filed a tort action in the law division of the circuit court. Such forum shopping cannot be countenanced. The trial judge properly ruled that plaintiffs complaint \u201cbelongs in the court of domestic relations.\u201d\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nBILANDIC, P.J., and HARTMAN, J., concur.",
        "type": "majority",
        "author": "JUSTICE SCARIANO"
      }
    ],
    "attorneys": [
      "Frana Biederman, of Frana Biederman, Ltd., of Chicago, for appellant.",
      "D. Kendall Griffith, Thomas F. Ging, and Bruce L. Carmen, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellees."
    ],
    "corrections": "",
    "head_matter": "NATILA M. KUKLA, Plaintiff-Appellant, v. FREDERICK T. KUKLA et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 1\u201488\u20142779\nOpinion filed June 6, 1989.\nFrana Biederman, of Frana Biederman, Ltd., of Chicago, for appellant.\nD. Kendall Griffith, Thomas F. Ging, and Bruce L. Carmen, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellees."
  },
  "file_name": "0585-01",
  "first_page_order": 607,
  "last_page_order": 611
}