                                  Illinois Official Reports

                                          Appellate Court



                      Marzouki v. Najar-Marzouki, 2014 IL App (1st) 132841




Appellate Court              JAMEL MARZOUKI, Petitioner-Appellant, v. OLFA NAJAR-
Caption                      MARZOUKI, Respondent-Appellee.


District & No.               First District, Fourth Division
                             Docket No. 1-13-2841


Filed                        May 15, 2014


Held                         The trial court’s denial of petitioner’s motion to stay proceedings on
(Note: This syllabus         respondent’s motion to allocate the parties’ marital assets was
constitutes no part of the   affirmed, since the record showed the parties’ marriage was dissolved
opinion of the court but     by a French court, that court ordered the parties to liquidate and
has been prepared by the     distribute the assets out of court, no proceedings were pending in the
Reporter of Decisions        French court, petitioner had registered the French judgment in the
for the convenience of       Illinois court, and he failed to meet his burden of showing that the
the reader.)                 Illinois court’s denial of his motion for a stay was an abuse of
                             discretion.



Decision Under               Appeal from the Circuit Court of Cook County, No. 13-D2-30088; the
Review                       Hon. Mark Lopez, Judge, presiding.



Judgment                     Affirmed.


Counsel on                   Lawrence W. Byrne and Naureen Amjad, both of Pedersen & Houpt,
Appeal                       of Chicago, for appellant.

                             Mitchell B. Gordon and Maria A. Citino Sfreddo, both of Bradford &
                             Gordon, LLC, of Chicago, for appellee.
     Panel                    JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
                              Justices Fitzgerald Smith and Lavin concurred in the judgment and
                              opinion.




                                               OPINION

¶1         Petitioner, Jamel Marzouki (Jamel), filed this interlocutory appeal, pursuant to Illinois
       Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010), from the August 14, 2013 order of the
       circuit court of Cook County denying his motion for a stay and to enjoin discovery and trial.
       He further appeals all underlying orders including the July 22, 2013 order of the circuit court
       denying his motion to dismiss respondent’s motion to allocate the marital estate. For the
       reasons that follow, we conclude that we lack jurisdiction to address the circuit court’s denial
       of Jamel’s motion to dismiss, and we affirm the August 14, 2013 order denying his motion
       for a stay and to enjoin discovery and trial.

¶2                                          BACKGROUND
¶3         Jamel and respondent, Olfa Najar-Marzouki (Olfa), are French citizens. Both were born
       in Tunisia and married there in 1998. This was Jamel’s third marriage and Olfa’s first. Jamel
       and his first wife divorced in 1989 in France. Jamel and his second wife divorced in 1996 in
       Wisconsin. In 1999, Jamel and Olfa moved to Illinois. In 2002, the couple purchased a
       residence in Evanston, which they continue to own jointly. Jamel and Olfa have two children
       and both were born in Illinois. In July 2010, they moved with their children to France, where
       Jamel worked remotely for his Illinois-based employer. Olfa worked in France as a medical
       researcher. While in France, they rented out their Evanston residence.
¶4         In January 2011, Jamel filed for divorce from Olfa. In December 2011, the couple and
       their children returned to the United States. On November 26, 2012, the family judge of the
       French court entered a seven-page judgment of dissolution which states, in pertinent part:
               “REASONS FOR THE DECISION
                   On the divorce
                   Articles 233 and 234 of the civil code stipulate that divorce may be requested by
               either spouse or by both when they accept the principle of terminating the marriage
               without taking into consideration the facts that caused it.
                   Pursuant to article 1124 of the new code of civil procedure, the judge pronounces
               divorce on the sole grounds of mutual acceptance by the spouses.
                   In the present case, both spouses have stated that they accept the termination of
               the marriage in the conditions provided for by article 1124 of the new code of civil
               procedure, on 28 November 2011 for Olfa NAJAR and on 27 September 2011 for
               Jamel MARZOUKI, so that the divorce is pronounced pursuant to articles 233 and
               234 of the civil code.”
¶5         In addition to pronouncing the divorce, the court ordered that “the parents shall exercise
       joint parental authority with the children’s usual place of residence being with their father.”


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       The court further “order[ed] the liquidation and distribution out of the spouses’ marital
       rights.” The order also “[i]nvites the parties to settle this liquidation and distribution out of
       court with the assistance of a notary of their choice.” (Emphasis in original.)
¶6         The instant Illinois action arose on or about February 21, 2013, when Jamel filed a
       petition in the circuit court of Cook County to enforce the foreign judgment. Also on
       February 21, 2013, Jamel filed a “Petition to Establish Child Support.” On March 29, 2013,
       Olfa filed a “Motion to Allocate Marital Estate.” On April 29, 2013, Olfa filed her response
       to Jamel’s petition to establish child support. On May 8, 2013, pursuant to section
       2-619(a)(3) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(3) (West
       2010)), Jamel filed a “Motion to Dismiss [Olfa’s] Motion to Allocate Marital Estate,” which
       the trial court denied on July 22, 2013. At some point, Jamel also filed a “Motion for Stay
       and to Enjoin Discovery and Trial on Respondent’s Motion to Allocate Marital Assets.”
       Jamel has included an undated copy of the motion in the appendix to his brief but also
       concedes that there is no copy in the record. Jamel filed his motion to stay under section
       2-619(a)(3) of the Code (735 ILCS 5/2-619(a)(3) (West 2010)) and section 501 of the Illinois
       Marriage and Dissolution of Marriage Act, which provides for a preliminary injunction under
       certain circumstances (750 ILCS 5/501 (West 2010)). After a hearing, the trial court denied
       this motion. The record contains no transcript of the hearing. Jamel filed this interlocutory
       appeal on August 13, 2013.

¶7                                            JURISDICTION
¶8          This court has jurisdiction to review appeals from final judgments only, unless a supreme
       court rule or statute provides appellate jurisdiction. Van Der Hooning v. Board of Trustees of
       the University of Illinois, 2012 IL App (1st) 111531, ¶ 6. Jamel filed this appeal pursuant to
       Illinois Supreme Court Rule 307(a)(1), which states that “[a]n appeal may be taken to the
       Appellate Court from an interlocutory order of court *** granting, modifying, refusing,
       dissolving, or refusing to dissolve or modify an injunction.” Ill. S. Ct. R. 307(a)(1) (eff. Feb.
       26, 2010). This court has consistently held that a stay is injunctive in nature and a stay order
       is immediately appealable under Rule 307(a)(1). Hastings Mutual Insurance Co. v. Ultimate
       Backyard, LLC, 2012 IL App (1st) 101751, ¶ 28; TIG Insurance Co. v. Canel, 389 Ill. App.
       3d 366, 371 (2009). We have appellate jurisdiction to review the interlocutory order of
       August 14, 2013, denying Jamel’s motion to stay.
¶9          Jamel also seeks to appeal “all underlying orders including the order entered July 22,
       2013 denying [his] Motion to Dismiss.” This order is not appealable. “ ‘An appeal under
       Rule 307 does not open the door to a general review of all orders entered by the trial court up
       to the date of the order that is appealed.’ [Citation.]” Rosinia v. Gusmano, 90 Ill. App. 3d
       882, 887 (1980). A trial court’s denial of a motion to dismiss is an interlocutory order, but it
       is one that is not final and appealable. Desnick v. Department of Professional Regulation, 171
       Ill. 2d 510, 540-41 (1996); Van Der Hooning, 2012 IL App (1st) 111531, ¶¶ 6-7. This court is
       without jurisdiction to consider whether the circuit court erred in denying Jamel’s motion to
       dismiss.

¶ 10                          ILLINOIS SUPREME COURT RULE 341
¶ 11       Olfa has argued that this appeal should be dismissed based on Jamel’s failure to adhere to
       the requirements set forth in Illinois Supreme Court Rule 341. Ill. S. Ct. R. 341 (eff. Feb. 6,

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       2013). Rule 341 provides that all briefs should contain a statement of facts section which
       includes “appropriate reference to the pages of the record on appeal.” Ill. S. Ct. R. 341(h)(6)
       (eff. Feb. 6, 2013). Rule 341 further requires that the brief contain an argument “which shall
       contain the contentions of the appellant and the reasons therefor, with citation of the
       authorities and the pages of the record relied on.” Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013).
       We agree with Olfa that Jamel’s brief does not comply with these requirements.
¶ 12       As we have explained:
               “Our rules of procedure are rules and not merely suggestions. [Citation.]
               Consequently, Rule 341’s mandates detailing the format and content of appellate
               briefs are compulsory. [Citation.] *** Where an appellant’s brief contains numerous
               Rule 341 violations and, in particular, impedes our review of the case at hand because
               of them, it is our right to strike that brief and dismiss the appeal. [Citations.]
               Ultimately, we are not a depository in which the appellant may dump the burden of
               argument and research for his cause on appeal. [Citation.]” (Internal quotation marks
               omitted.) Rosestone Investments, LLC v. Garner, 2013 IL App (1st) 123422, ¶ 18.
       As Olfa correctly notes, although an appellant may present evidence favorable to his position
       in the statement of facts, he cannot do so at the cost of this court’s understanding of the case.
       See In re R.G., 165 Ill. App. 3d 112, 115 (1988); Midland Hotel Corp. v. Reuben H.
       Donnelley Corp., 149 Ill. App. 3d 53, 57 (1986). Additionally, “[i]t is axiomatic that [a]
       reviewing court is entitled to have the issues clearly defined and supported by pertinent
       authority and cohesive arguments [citation], and that failure to develop an argument results in
       waiver. [Citation.]” (Internal quotation marks omitted.) Sexton v. City of Chicago, 2012 IL
       App (1st) 100010, ¶ 79. In view of these principles, we believe that we are entitled to strike
       Jamel’s brief or dismiss his appeal based on his violations of Rule 341. We choose not to do
       so, however, and, in our discretion, will review this appeal. A reviewing court has the choice
       to review the merits, even in light of multiple Rule 341 mistakes. Rosestone Investments,
       LLC, 2013 IL App (1st) 123422, ¶ 19 (citing In re Estate of Jackson, 354 Ill. App. 3d 616,
       620 (2004)).

¶ 13                                    STANDARD OF REVIEW
¶ 14       When a party brings a motion under section 2-619(a)(3) of the Code, the trial court has
       discretion to determine if a dismissal or stay is warranted. In re Marriage of Murugesh, 2013
       IL App (3d) 110228, ¶ 20. Thus, we review the trial court’s order denying a motion to stay
       under the abuse of discretion standard. Hastings Mutual Insurance Co., 2012 IL App (1st)
       101751, ¶ 29. “In determining whether the circuit court abused its discretion, this court
       should not decide whether it agrees with the circuit court’s decision, but rather, should
       determine whether the circuit court acted arbitrarily without the employment of conscientious
       judgment or *** exceeded the bounds of reason and ignored recognized principles of law so
       that substantial prejudice resulted. [Citation.]” (Internal quotation marks omitted.) Id. Under
       the abuse of discretion standard, the reviewing court’s role is not to substitute its judgment
       for that of the trial court, or even to determine whether the trial court acted wisely. Midas
       International Corp. v. Mesa, S.p.A., 2013 IL App (1st) 122048, ¶ 22.




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¶ 15                                            ANALYSIS
¶ 16        “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.’ [Citation.]”
       In re Marriage of Murugesh, 2013 IL App (3d) 110228, ¶ 19. “The purpose of section
       2-619(a)(3) is ‘to avoid duplicative litigation.’ [Citation.]” Id. Even when the “same cause”
       and “same parties” requirements are met, a circuit court is not automatically required to
       dismiss or stay a proceeding under section 2-619(a)(3). In re Marriage of Murugesh, 2013 IL
       App (3d) 110228, ¶ 20; accord May v. SmithKline Beecham Clinical Laboratories, Inc., 304
       Ill. App. 3d 242, 247 (1999) (“A motion to stay need not be automatically granted simply
       because the same cause involving the same parties is pending in another jurisdiction.” (citing
       Kellerman v. MCI Telecommunications Corp., 112 Ill. 2d 428, 446 (1986))). Our supreme
       court has explained that, notwithstanding the policy of avoiding duplicative litigation,
       “multiple actions in different jurisdictions *** may be maintained where the circuit court, in
       a sound exercise of its discretion, determines that both actions should proceed.” A.E. Staley
       Manufacturing Co. v. Swift & Co., 84 Ill. 2d 245, 253 (1980).
¶ 17        A party seeking a stay bears the burden of proving adequate justification for the stay.
       May v. SmithKline Beecham Clinical Laboratories, Inc., 304 Ill. App. 3d 242, 246 (1999).
       The party seeking the stay must justify it by clear and convincing circumstances outweighing
       its potential harm to the opposing party. Reed v. Doctor’s Associates, Inc., 331 Ill. App. 3d
       618, 627 (2002). To that end, he “must make out a clear case of hardship or inequity in being
       required to go forward, if there is even a fair possibility that the stay for which he prays will
       work damage to someone else. [Citation.]” (Internal quotation marks omitted.) May, 304 Ill.
       App. 3d at 246-47.
¶ 18        Jamel argues that a stay “would be appropriate to allow the French court to complete its
       proceedings.” As Olfa notes, section 2-619 states in pertinent part that a “[d]efendant may
       *** file a motion for dismissal of the action or other appropriate relief.” (Emphasis in
       original.) Olfa contends that “[b]ecause Jamel is the petitioner in this matter, his request for a
       dismissal of Olfa’s [motion] based on ‘pending proceedings’ in France is disingenuous.”
       (Emphasis added.) She also argues that, by filing this action, Jamel has asked the circuit court
       to “accept jurisdiction over all matters contained in the Judgment, not just an isolated part of
       the Judgment that serves his interests.” As Olfa correctly notes, Jamel seeks only a partial
       dismissal and wants the Illinois court “to retain jurisdiction of this matter to adjudicate his
       claims, such as child support.” She further notes that Jamel’s request for child support was
       denied by the French court. As to Jamel’s motion for a stay, Olfa notes that he made this
       request in order “to see how those French court proceedings progress.” However, Olfa
       contends that “[a] stay of the proceedings in Illinois would simply give Jamel the opportunity
       to take affirmative steps to institute further proceedings in France in an attempt to frustrate
       the Circuit Court’s exercise of jurisdiction in this matter.”
¶ 19        We first note that Jamel has failed to include in the record a copy of his motion to stay or
       a copy of the transcript of the hearing on his motion. “[A]n appellant has the burden to
       present a sufficiently complete record of the proceedings at trial to support a claim of error,
       and in the absence of such a record on appeal, it will be presumed that the order entered by
       the trial court was in conformity with law and had a sufficient factual basis.” Foutch v.
       O’Bryant, 99 Ill. 2d 389, 391-92. “Any doubts which may arise from the incompleteness of
       the record will be resolved against the appellant.” Id. at 392. “An issue relating to a circuit

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       court’s factual findings and basis for its legal conclusions obviously cannot be reviewed
       absent a report or record of the proceeding.” Corral v. Mervis Industries, Inc., 217 Ill. 2d 144,
       156 (2005). “From the very nature of an appeal it is evident that the court of review must
       have before it the record to review in order to determine whether there was the error claimed
       by the appellant.” Foutch, 99 Ill. 2d at 391.
¶ 20       In light of the principles enunciated in Corral and Foutch, we justifiably could hold that
       we are unable to conduct a meaningful review of this appeal and presume that the trial
       court’s ruling on Jamel’s motion for a stay had a sufficient legal and factual basis. However,
       the failure of an appellant to include a transcript of proceedings is not necessarily fatal where
       the record contains sufficient documents to allow meaningful review of the merits of the
       appeal. See, e.g., Whitmer v. Munson, 335 Ill. App. 3d 501, 511-12 (2002) (and cases cited
       therein). With respect to the missing motion, Jamel stated in his brief that he was waiting for
       the trial court to rule on his proposed stipulation that the motion be included in the record.
       However, Jamel has not filed, nor requested that he be allowed to file, a supplemental record
       containing a copy of the motion. Although Jamel included a copy of the motion in the
       appendix attached to his brief, this is not the proper method of supplementing the record. See,
       e.g., Pikovsky v. 8440-8460 North Skokie Boulevard Condominium Ass’n, 2011 IL App (1st)
       103742, ¶ 16 (“a reviewing court will not supplement the record on appeal with the
       documents attached to the appellant’s brief on appeal as an appendix, where there is no
       stipulation between the parties to supplement the record and there was no motion in the
       reviewing court to supplement the record with the material”). Nonetheless, we believe the
       parties have stipulated that the motion is part of the record. Notably, Olfa has cited to the
       motion contained in Jamel’s appendix to his brief. Moreover, the record contains a copy of
       the judgment entered by the French court, Jamel’s petition to register that judgment, and a
       copy of the trial court’s ruling on the motion to dismiss explaining its findings. Thus, we
       conclude that the record contains sufficient documents to adequately apprise this court of the
       evidence presented to the trial court when it made its decision to deny Jamel’s motion for a
       stay. We will therefore address the merits of the appeal.
¶ 21       We now conclude that the circuit court’s ruling was legally correct based on the plain
       language of the judgment of dissolution entered by the French court, which the circuit court
       had considered three weeks earlier in ruling on Jamel’s motion to dismiss. As the circuit
       court stated: “Based upon Jamel’s request that the 11-26-12 French Judgment for Dissolution
       of Marriage be registered and enrolled in Cook County, Illinois, this Honorable Court has
       both subject matter and personal jurisdiction over this cause.” The court concluded that
       “[b]ased upon Jamel’s registration and enrollment of the French Judgment for Dissolution of
       Marriage in Cook County, Illinois, Jamel has waived his claim that the French courts have
       retained subject matter or personal jurisdiction.” The circuit court further found that there
       were no pending proceedings in the French court. Also, as we have noted, the French court
       ordered the “liquidation and distribution out of the spouses’ marital rights” and merely
       invited the parties “to settle this liquidation and distribution out of court with the assistance
       of a notary of their choice.”
¶ 22       The French court has already issued its judgment and Jamel has instituted this Illinois
       action to register and enroll that foreign judgment in Cook County. Based on the record
       before this court, including the plain language of the judgment of dissolution entered by the
       French court, Jamel has failed to show that there is another action currently pending in the


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       French court. Therefore, Jamel has failed to meet his burden on appeal of showing that the
       circuit court abused its discretion in denying his motion for a stay of Olfa’s motion to
       allocate the marital assets. As there is no basis for concluding that the trial court abused its
       discretion, we must affirm the circuit court’s order.

¶ 23                                       CONCLUSION
¶ 24      For the foregoing reasons, we affirm the circuit court’s August 14, 2013 order denying
       Jamel’s motion to stay Olfa’s motion to allocate marital assets.

¶ 25      Affirmed.




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