                         Illinois Official Reports

                                 Appellate Court



                  In re Marriage of Krol, 2015 IL App (1st) 140976




Appellate Court     In re MARRIAGE OF DOROTA KROL, Petitioner-Appellant, and
Caption             JOSEF KUBALA, Respondent-Appellee.



District & No.      First District, First Division
                    Docket No. 1-14-0976



Filed               March 2, 2015



Decision Under      Appeal from the Circuit Court of Cook County, No. 10-D-3454; the
Review              Hon. Veronica Mathein, Judge, presiding.



Judgment            Affirmed.




Counsel on          Katarzyna M. Caputa, of Des Plaines, and Rachael Toft, of Law
Appeal              Offices of Rachael Toft, of Chicago, for appellant.

                    Theresa C. Ceko, of Loyola University Community Law Center, of
                    Chicago, for appellee.



Panel               JUSTICE CONNORS delivered the judgment of the court, with
                    opinion.
                    Presiding Justice Delort and Justice Harris concurred in the judgment
                    and opinion.
                                                OPINION
¶1        Dorota Krol (Dorota) and Josef Kubala (Josef), both Polish citizens, were married and
     living in Poland. Prior to the marriage, Dorota had obtained lawful permanent residency in the
     United States. She and Josef discussed moving to and living in the United States as a family. In
     October 2005, Dorota traveled to the United States to maintain her residency status and to
     submit a visa application for her husband.
¶2       On June 1, 2007, the couple’s child was born in Poland. Thereafter, Dorota took the child
     to the United States with Josef’s consent on four occasions from September 2007 to November
     2007, from April 2008 to June 2008, from January 2009 to May 2009, and from August 2009
     to February 2010. Dorota has family in the United States.
¶3        On March 20, 2010, Dorota took the child to the United States without Josef’s consent.
     Josef was informed of their location after they arrived.
¶4        Josef then filed a petition for dissolution of their marriage in a Polish court. Although the
     record does not contain a copy of this petition, both parties agree that Josef’s petition for
     dissolution did not request custody of their child. On April 1, 2010, Dorota filed a petition for
     dissolution of marriage and for custody of the child in the circuit court of Cook County.
¶5       On May 5, 2010, Josef filed a “request for return” of the child in Poland pursuant to the
     Hague Convention on the Civil Aspects of International Child Abduction (Convention on
     the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343
     U.N.T.S. 89) (hereinafter, Convention).
¶6        In early June, the circuit court of Cook County received a letter from Josef objecting to any
     proceeding in the United States because his wife “abducted [the] child from Poland” and
     “proceedings under the Hague Convention were pending in the U.S. Department of State.” The
     letter requested that Dorota return to Poland with their child so that the couple could “resolve
     [their] marital disputes in Polish court.”
¶7        On June 28, 2010, Josef filed a petition pursuant to the Convention (Hague petition) in the
     circuit court of Cook County requesting that the court decide the “habitual residence” of the
     child. Josef did not file a counterpetition or answer to Dorota’s petition for dissolution and
     custody in Cook County. Dorota filed a brief in response to Josef’s Hague petition.
¶8       On September 2, 2010 the trial court held a hearing on Josef’s Hague petition, although the
     parties disagree about whether this was in fact a “hearing” within the meaning of the Illinois
     Code of Civil Procedure (Code) allowing a plaintiff to voluntarily dismiss an action. 735 ILCS
     5/2-1009(a), (c) (West 2008). Neither party provided testimony nor is there a transcript of that
     court date in the record. The trial court subsequently entered an order that states: “This cause
     coming before the Court for hearing on Joseph [sic] Kubala’s petition for return of the child,
     counsel for Joseph [sic] Kubala present in court, Dorota Krol present with counsel, and having
     previously responded to Mr. Kubala’s petition, the Court having made the following
     findings–findings: A) that Poland is the habitual residence of the minor child *** B) but based
     on the preponderance of the evidence, the minor child was wrongfully removed from Poland
     on March 20, 2010. It is thereby ordered, (1) that the minor child *** be returned to Poland
     [and] (2) that by agreement of the parties, the minor child be returned within 30 days of today’s
     date.” The September 2, 2010 order was not appealed. On October 4, 2010, Dorota filed a
     motion to reconsider and vacate the September 2, 2010 order.


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¶9         On October 28, 2010, Dorota filed a motion for voluntary dismissal of her petition for
       dissolution. In her motion, she cited one subsection of the Code allowing for voluntary
       dismissal of an action which states: “The plaintiff may, at any time before trial or hearing
       begins, upon notice to each party who has appeared or each such party’s attorney, and upon
       payment of costs, dismiss his or her action or any part thereof as to any defendant, without
       prejudice, by order filed in the cause.” 735 ILCS 5/2-1009(a) (West 2008).
¶ 10       On December 17, 2010, the court denied Dorota’s motion to reconsider and vacate the
       September 2, 2010 order finding Poland to be the child’s habitual residence. In the same order,
       the court ordered that the child be returned to Poland within 30 days of December 17, 2010.
       The court did not immediately rule on Dorota’s motion for voluntary dismissal.
¶ 11       Between December 2010 and October 2013, Dorota or her counsel failed to appear in court
       on at least three occasions, May 24, 2011, June 29, 2011, and November 28, 2011. During this
       same period of time, Josef filed two motions for rule to show cause and requested three body
       attachments. Ultimately, Dorota was found in contempt of the court order of September 2,
       2010 and was committed to Cook County jail in September 2013. She was released in early
       October 2013 after posting part of her bond and producing proof of travel preparations to
       Poland for her and the child.
¶ 12       In early November 2013, both parties submitted memos addressing “whether the Hague
       petition is a ‘stand alone’ petition or whether or not it falls with the dismissal of the petition for
       dissolution of marriage.” On November 15, 2013, the court made an oral ruling addressing this
       question. The court’s oral ruling noted that the September 2, 2010 hearing and ruling on Josef’s
       Hague petition did not dispose of all the issues in the underlying divorce action but was a final
       and appealable order. The oral ruling also indicated that the court found Crall-Shaffer v.
       Shaffer, 663 N.E.2d 1346 (Ohio Ct. App. 1995) (per curiam), to be “on all fours with the
       matter pending before the Court.” On December 12, 2013 the court confirmed its oral ruling
       with a written order containing the following findings:
                    “1. Section 2-1009 [(735 ILCS 5/2-1009 (West 2008))] does give Dorota an
               absolute right to dismiss her Petition and DOROTA’s Motion for Voluntary Dismissal
               was properly brought before this Honorable Court.
                    2. This Honorable Court has subject matter jurisdiction over a motion brought
               pursuant to the Hague Convention.
                    3. The Petition for Return of Child to Jozef [sic] Kubala, filed on June 28, 2010,
               was brought pursuant to the Convention on the Civil Aspects of International Child
               Abduction, done at the Hague on October 25, 1980 (hereinafter referred to as
               ‘Convention’) and 42 U.S.C. 11603 (b), the International Child Abduction Remedies
               Act (ICARA).
                    4. This Court has original and concurrent jurisdiction over the Hague Petition, the
               merits of the Hague Petition remain correctly before the Court.”
       After these findings, the written ruling ordered, in relevant part, that the “Petition for Return of
       Child to Jozef [sic] Kubala filed pursuant to the Hague Convention on June 28, 2010 survives
       the dismissal of the underlying complaint, here that being the Petition for Dissolution of
       Marriage filed by DOROTA on April 1, 2010.” The court also appointed a guardian ad litem to
       represent the best interests of the child. 750 ILCS 5/506(a)(2) (West 2012).



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¶ 13        On December 17, 2013, the court ordered that the child be returned to Poland by December
       31, 2013 and remain in Dorota’s care pending a custody determination in Poland. That same
       order also stated that “Articles 12, 13 [and] 20 defenses of the [Convention] are not material to
       this issue as the Court entered the [September 2, 2010] order directing return of the child to
       Poland and a subsequent Motion to Reconsider was denied.”
¶ 14        On December 24, 2013, Dorota filed a “Motion to Stay Return of Minor Child to Poland
       until Such Time when a Safe Harbor and Undertakings Order is obtained from the Courts in
       Poland and for other Relief.” Josef filed a response and the court heard arguments on the
       motion. On March 7, 2014, the court denied Dorota’s motion to stay the return of the child and
       further stated “[t]hat the [December 17, 2013] order entered in this matter remains in full force
       and effect. That Dorota Krol will return the [child] to Poland within 14 days.”
¶ 15        The child returned to Poland on August 27, 2014.
¶ 16        Dorota raises three issues on appeal. First, whether the trial court improperly allowed the
       Hague petition to “stand alone” following the dismissal of Dorota’s petition for dissolution of
       marriage. Second, whether the trial court’s orders entered after the voluntary dismissal of
       Dorota’s petition for dissolution were void ab initio. Third, whether a substantial change of
       circumstances since the September 2, 2010 order finding Poland to be the child’s habitual
       residence warrants that it is in the best interest of the child to remain in the United States
       pending a custody determination. We answer all three issues in the negative.
¶ 17        The Convention at issue, adopted in 1980, seeks to secure the prompt return of children
       wrongfully removed to or retained in any signatory state. Convention, supra, ch. I, art. 1. A
       central purpose of the Convention is to “discourage parents from crossing international borders
       in search of a more sympathetic forum” in which to litigate custody issues. In re Lozano, 809 F.
       Supp. 2d 197, 217 (S.D.N.Y. 2011), aff’d sub nom. Lozano v. Alvarez, 697 F.3d 41 (2d Cir.
       2012), aff’d sub nom. Lozano v. Montoya Alvarez, 572 U.S. ___, 134 S. Ct. 1224 (2014).
       Poland is a signatory to the Convention. The United States is also a signatory to the
       Convention and has implemented its provisions through the International Child Abduction
       Remedies Act (ICARA) (42 U.S.C. § 11601 et seq. (2006)).
¶ 18        The ICARA statute provides that “[a]ny person seeking to initiate judicial proceedings
       under the Convention for the return of a child *** may do so by commencing a civil action by
       filing a Petition for the relief sought in any court which has jurisdiction of such action and
       which is authorized to exercise its jurisdiction in the place where the child is located at the time
       the petition is filed.” 42 U.S.C. § 11603(b) (2006). The statute further states that the “courts of
       the States and the United States district courts shall have concurrent original jurisdiction of
       actions arising under the Convention.” Id. § 11603(a). The statute also allocates burdens of
       proof under the Convention. For a successful claim seeking return of a child who has been
       wrongfully removed or retained within the meaning of the Convention, a petitioner must
       establish that (1) the habitual residence of the child immediately before the date of the alleged
       wrongful retention was in a foreign country; (2) the retention is in breach of custody rights
       under the foreign country’s law; and (3) the petitioner was exercising custody rights at the time
       of the alleged wrongful retention. Id. § 11603(e)(1)(A), (B); In re Lozano, 809 F. Supp. 2d
       197, 218 (S.D.N.Y. 2011).
¶ 19        If the petitioner satisfies this burden, the child must be returned to his or her state of
       habitual residence “promptly” unless the respondent can establish that one of the narrow
       exceptions set forth in the Convention applies. Convention, supra, ch. III, art. 12; 42 U.S.C.

                                                    -4-
       § 11601(a)(4) (2006). Those exceptions are (1) the proceeding was commenced more than one
       year after the removal of the child and the child has become settled in his or her new
       environment; (2) the person seeking return of the child was not actually exercising custody
       rights at the time of the removal or retention, or had consented to or subsequently acquiesced in
       the removal or retention; (3) there is a grave risk that the return of the child would expose him
       or her to physical or psychological harm; or (4) the return of the child would not be permitted
       under the fundamental principles of the requested state relating to the protection of human
       rights and fundamental freedoms. See Convention, supra, ch. III, arts. 12, 13, 13(b), 20. See
       also In re Lozano, 809 F. Supp. 2d 197, 218 (S.D.N.Y. 2011). The Convention and its
       implementing legislation instruct courts not to make a determination on the custody of the
       child until the child’s habitual residence has been determined. Convention, supra, ch. III, art.
       16 (a judicial authority “shall not decide on the merits of rights of custody until it has been
       determined that the child is not to be returned [to his or her country of habitual residence]
       under this Convention”), art. 19 (“A decision under this Convention concerning the return of
       the child shall not be taken to be a determination on the merits of any custody issue.”); 42
       U.S.C. § 11601(b)(4) (2006) (“The Convention and this chapter empower courts in the United
       States to determine only rights under the Convention and not the merits of any underlying child
       custody claims.”).
¶ 20       We turn first to whether the trial court improperly allowed the Hague petition to “stand
       alone” following the dismissal of Dorota’s petition for dissolution of marriage. Because we
       find the Hague petition analogous to the survival of an order of protection after dismissal of a
       petition for dissolution and acknowledge the unique purpose and jurisdictional provisions of
       the Convention, we affirm the trial court’s conclusion that the Hague petition survived the
       dismissal of Dorota’s petition for dissolution.
¶ 21       The survival of an order of protection upon dismissal of a conjoined case such as a petition
       for dissolution of marriage is a relevant analogy to the case at hand. The Illinois Domestic
       Violence Act of 1986 (750 ILCS 60/202 (West 2008)) provides that an order of protection may
       be commenced with another civil proceeding, such as the Illinois Marriage and Dissolution of
       Marriage Act (750 ILCS 5/101 et seq. (West 2008)), by filing a petition for an order of
       protection under the same case number as the civil proceeding involving the parties. 750 ILCS
       60/202(a)(2) (West 2008). Even if the order of protection is consolidated with another civil
       proceeding, the order of protection is an “independent action.” 750 ILCS 60/202(c) (West
       2008). Notably, the dismissal of the civil proceeding with which the order of protection has
       been consolidated “shall not require dismissal of the action for the order of protection.” Id.
       “[I]nstead, [the order of protection] may be treated as an independent action and, if necessary
       and appropriate, transferred to a different court or division.” Id. Finally, the same section states
       that “[d]ismissal of any conjoined case shall not affect the validity of any previously issued
       order of protection.” Id.
¶ 22       We find that Josef’s Hague petition should be treated as an independent action that
       survives the dismissal of the petition for dissolution of marriage just as an order of protection
       also survives the dismissal of a petition for dissolution of marriage. The Hague petition could
       have initiated a cause of action, just as an order of protection can initiate a cause of action.
       Compare 42 U.S.C. § 11603(b) (2006), with 750 ILCS 60/202(a)(1), (2), (3) (West 2008)
       (Actions for orders of protection are commenced: “(1) Independently: By filing a petition for
       an order of protection in any civil court, unless specific courts are designated by local rule or


                                                    -5-
       order. (2) In conjunction with another civil proceeding ***. (3) In conjunction with a
       delinquency petition or a criminal prosecution ***.” (Emphasis added.)). The fact that Dorota
       filed her petition for dissolution of marriage in the circuit court of Cook County should not
       determine the fate of a Hague petition that could have stood as its own independent cause of
       action. It bears noting that the procedural steps of the Hague Convention take time
       (Convention, supra, ch. III, arts. 8, 9, 10), and, as a result, a Hague petition may not be filed as
       expeditiously as another matter without similar procedural hurdles.
¶ 23        In addition to standing as an independent action, the ICARA clearly provides the
       jurisdictional grounds for a Hague petition independent of the jurisdictional grounds of the
       original complaint. 42 U.S.C. § 11603(a) (2006) (“The courts of the States and the United
       States district courts shall have concurrent original jurisdiction of actions arising under the
       Convention.”). In Crall-Shaffer v. Shaffer, an appellate court in Ohio similarly found that a
       defendant-father’s Hague petition could remain pending for independent adjudication
       following the plaintiff-wife’s voluntary dismissal of her action for legal separation.
       Crall-Shaffer, 663 N.E.2d at 1348. The court stated, “[W]e decline to construe the Hague
       petition as a counterclaim which could not remain pending for independent adjudication by the
       court.” Id. The court then held that “the Hamilton County Court of Common Pleas, Domestic
       Relations Division, as a court of the state of Ohio, had original and concurrent jurisdiction over
       the Hague petition pursuant to Section 11603(a), Title 42, U.S. Code.” Id.
¶ 24        Our decision advances the purpose of the Convention and the provisions of its
       implementing legislation. The Convention’s goal of securing the “prompt return of children
       wrongfully removed to or retained” in any state signatory to the treaty using the “most
       expeditious procedures available” (Convention, supra, ch. 1, arts. 1, 2) is achieved by allowing
       for the independent adjudication of a Hague petition even after the voluntary dismissal of a
       petition for dissolution. If, on the contrary, we were to allow Dorota’s voluntary dismissal to
       result in the dismissal of the Hague petition, we would effectively eliminate Josef’s remedy
       under the Convention. He would not be able to file the Hague petition in Poland where he had
       begun divorce proceedings, as Dorota suggests, because his daughter was located in Cook
       County. Convention, supra, ch. III, arts. 10, 11, 12, 16; 42 U.S.C. § 11603(b) (2006). Even if
       Josef could refile his Hague petition in the circuit court or in a district court, both options
       consume judicial resources and result in a delay contrary to the Convention’s call for
       expeditious resolution of wrongful retention or removal of a child. Convention, supra, ch. III,
       art. 11. Dorota’s argument that the Hague petition must be dismissed with the dismissal of her
       petition for dissolution prevents a court from concluding which country is the proper forum for
       the child custody determination. This leaves both parents without a resolution on the proper
       forum in which to litigate their custody claims.
¶ 25        In this case, given that Dorota has kept the child for three years after the trial court held that
       the habitual residence of the child was Poland, it seems reasonable for a court to conclude that
       she used the voluntary dismissal mechanism to “avoid a potential decision on the ‘merits’ or to
       avoid an adverse ruling as opposed to using it to correct a procedural or technical defect.”
       (Internal quotation marks omitted.) In re Marriage of Saleh, 202 Ill. App. 3d 131, 135 (1990)
       (citing Gibellina v. Handley, 127 Ill. 2d 122, 137 (1989)). We cannot allow the use of the
       voluntary dismissal mechanism to avoid an unfavorable determination on a child’s habitual
       residence. Furthermore, allowing the Hague petition to stand alone further discourages



                                                      -6-
       “parents from crossing international borders in search of a more sympathetic forum” in which
       to litigate custody issues. In re Lozano, 809 F. Supp. 2d 197, 217 (S.D.N.Y. 2011).
¶ 26        Having concluded that the trial court properly allowed the Hague petition to stand alone,
       we also conclude that the court maintained jurisdiction over the matter when, on December 17,
       2013, it entered the order requiring that the child be returned to Poland and again on March 7,
       2014 when the trial court denied Dorota’s motion to stay the return of the child. The March
       order further stated “[t]hat the [December 17, 2013] order entered in this matter remains in full
       force and effect” and ordered Dorota to return the child to Poland within 14 days. As stated
       above, the court had original and concurrent jurisdiction to hear and adjudicate Josef’s Hague
       petition. 42 U.S.C. § 11603(a) (2006). The two orders entered after Dorota voluntarily
       dismissed her petition for dissolution simply restated and reinforced the rulings of September
       2, 2010. Both orders addressed the same abduction claim between the same parties. Dorota’s
       second argument that the December 17, 2013 and the March 7, 2014 orders were void ab initio
       because the trial court lacked jurisdiction fails.
¶ 27        We turn now to the third issue. Dorota asserts that there has been a substantial change in
       circumstances for the minor child that the court failed to consider after the initial determination
       of habitual residence in this case. She relies on the following facts to demonstrate the change in
       circumstances: that the child attended more than two years of school, visited doctors’ offices,
       participated in extracurricular activities and spent time with friends and family in the United
       States. This argument fails because Dorota’s noncompliance with court orders created the
       delay that brought about any “change in circumstances” that Dorota now hopes to use to her
       advantage.
¶ 28        Any “change in circumstances” or “acclimatization” that the child experienced occurred
       during the period of time in which Dorota was not responsive to court orders mandating that
       the child be returned to Poland. Dorota initially failed to comply with the September 2, 2010
       order when she did not return the child to Poland by October 2, 2010. She then failed to comply
       with the September 2, 2010 and December 17, 2010 orders when she did not return the child to
       Poland by January 16, 2011. Subsequently, Dorota was absent from court on at least three
       occasions. Dorota avoided court orders and two body attachments before she was found in
       contempt of court. During this period and until October 2013, Dorota remained with the child
       in the United States. In fact, the child was not returned to Poland until August 2014, almost
       four years after the initial determination of the child’s habitual residence. She cannot now
       benefit from her defiance of court orders to prove the child’s change in circumstances.
¶ 29        Moreover, nothing in the Convention or its implementing legislation allows for the defense
       of a “substantial change in circumstances.” The only defenses are those elaborated in the
       Convention. Convention, supra, ch. III, arts. 12, 13, 13(b), 20. We are not persuaded to
       undertake, as Dorota suggests, as a “matter of first impression” whether defenses outside the
       Convention are applicable. The Convention and the ICARA establish procedures for the
       prompt return of children wrongfully removed or retained and Dorota’s conduct forestalled the
       smooth execution of those procedures.
¶ 30        For the foregoing reasons, we affirm the decision of the circuit court of Cook County.

¶ 31      Affirmed.



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