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In re Marriage of Kosmond

Case Date: 03/28/2005
Court: 1st District Appellate
Docket No: 1-04-1262 Rel

FIRST DIVISION
March 28, 2005



 

No. 1-04-1262

In re MARRIAGE OF JAMES N. KOSMOND,

          Petitioner-Appellant,

                      and

PATRIZIA PETRA KOHLER KOSMOND,

          Respondent-Appellee

(Commerzbank AG,

          Third Party Defendant).

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)		 Appeal from
the Circuit Court
of Cook County



No. 04 D 1718



Honorable
Carole Kamin Bellows,
Judge Presiding.


PRESIDING JUSTICE CAHILL delivered the opinion of the court:

The question before us is whether the circuit court erred in granting petitioner's emergency petition for a temporary restraining order (TRO) and preliminary injunction. The order froze respondent's assets in a German bank under section 11-101 of the Code of Civil Procedure (Code) (735 ILCS 5/11-101 (West 2002)), and dismissed the bank's motion to quash petitioner's deposition notice. We conclude that the circuit court had jurisdiction to freeze respondent's assets, but then erred when it failed to hold a hearing on whether the court's order would force the bank or its employees to violate German law. We reverse and remand with directions.

This case arises from a divorce action. Petitioner James Kosmond filed for the dissolution of his marriage to respondent Patrizia Kosmond on February 18, 2004. That month, Patrizia moved to Germany. James alleges Patrizia used wire transfers to send substantial marital funds to a bank account in her name at Commerzbank AG in Mainz-Kastel, Germany.

James filed an emergency petition for a TRO and preliminary injunction on March 11, 2004. The petition sought to freeze the assets in Patrizia's German bank account and add Commerzbank as a third-party respondent. The circuit court granted the order,ex parte. Notices of the TRO and summons were served on Commerzbank branches in Chicago and Germany. James served Commerzbank in Chicago with a notice that the bank's discovery deposition would be taken on March 22, 2004, in Chicago.

In the meantime, Commerzbank filed an appearance and a motion on March 19, 2004, to dissolve the TRO and quash the deposition notice. Commerzbank's main argument was that the circuit court lacked jurisdiction over Patrizia's bank account in Germany. Commerzbank attached the affidavit of Rolf Breisig, its German counsel. Breisig stated that German law requires a German court to issue an order of judgment before a foreign judgment is enforceable and a German court can do so only if the foreign judgment is final. He said if Commerzbank enforced the TRO without a German court order, Commerzbank would be liable to Patrizia for damages. Breisig's affidavit also supported the bank's motion to quash the discovery deposition, stating that German secrecy laws prohibit the disclosure of customer account information without a German court order. Breisig stated that information about an account held at a branch in Germany would not be accessible by officers at the bank's Chicago branch. Breisig's affidavit was the only evidence before the court addressing German law. James did not offer evidence either supporting or contradicting Breisig's affidavit.

The circuit court heard arguments on April 13, 2004, on Commerzbank's motions to dissolve the TRO and quash the deposition notice. No court reporter was present and no transcript is of record. The circuit court denied the motions in a written memorandum opinion and order. The court issued a preliminary injunction ordering Commerzbank to continue to freeze Patrizia's assets. The court determined that it had in personam jurisdiction to restrain Commerzbank from certain activities and that German law was immaterial to the case. Commerzbank appeals.

Commerzbank claims on appeal that the circuit court: (1) lacked jurisdiction to freeze assets held in its Mainz-Kastel branch; and (2) erred in failing to respect German law under the principles of comity.

We first address whether the circuit court had jurisdiction to issue a TRO and preliminary injunction to freeze assets in Patrizia's German bank account. Where the circuit court hears no testimony and determines jurisdiction solely on documentary evidence, we review its decision de novo. Gaidar v. Tippecanoe Distribution Service, Inc., 299 Ill. App. 3d 1034, 1040, 702 N.E.2d 316 (1998).

In challenging the circuit court's jurisdiction, Commerzbank conceded the court had personal jurisdiction over the parties, but claimed it lacked jurisdiction to freeze Patrizia's bank account because the account was not in Illinois.

Commerzbank cited Robbins, Coe, Rubenstein & Shafran, Ltd. v. Ro Tek, Inc., 23 Ill. App. 3d 705, 709, 320 N.E.2d 157 (1974), to argue it is not enough for a bank to have a branch within the court's jurisdiction--the account, or res,in property lawyer talk, also must be within the court's jurisdiction. In the underlying suit in Robbins, the plaintiff won a judgment for $764 plus costs in Cook County circuit court. The plaintiff filed an affidavit for garnishment (nonwage) to collect the judgment and caused a summons to be served on a bank in La Salle County. Robbins, 23 Ill. App. 3d at 706. The bank challenged the action because its only branch was in La Salle County, and under the federal National Bank Act (Banking Act) (12U.S.C.