Automatic Restraining Orders in Domestic Relations Cases

In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the U.S. Supreme Court held that “identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33. While this is generally framed as a procedural due process issue, as will be discussed, not all courts agree.

Stone v. Godbehere

The Arizona version of the statute survived a constitutional challenge in Stone v. Godbehere, 894 F. 2d 1131 (9th Circuit 1990). In that case, the procedural due process argument failed because there was no allegation or evidence of a risk of erroneous deprivation, which is part of the test of Mathews v. Eldridge, supra. Also, the private interest was reduced because the statute only affected community property in which the other spouse had an interest. The court's due process analysis consisted of one page. What if there is a factual or legal issue as to whether the property is community (marital) or separate (non-marital)?

In Re Marriage of Finer

Some of the statutes also contain a restraint against physical abuse and the removal of a child from the jurisdiction. The latter was successfully attacked in In Re Marriage of Finer, 893 P.2d 1381 (Colo. App. 1995). In that case, the statute itself was not attacked; the issue was the court's refusal to schedule a hearing on a petition to modify the automatic injunction regarding a motion to remove the parties' child from the state. It was held that the statute implicitly required the trial court to schedule a timely hearing on such a motion. Failure to do so was a violation of due process.

Gale v. Superior Court

In Gale v. Superior Court, 122 Cal. App. 4th 1388 (2004), the court stated that due process required the California version of the statute to exclude transfer of the property for the usual course of business or for the necessities of life. The case does not explain why the statute itself satisfies due process; this case only dealt with the fact that a third party who did not have notice of the injunction was not restrained by it. A non-published, non-citable decision in California, In Re Marriage of Egedi, 2004 WL 113557 (Cal. App. 2 Dist.), upheld the statute, but the portion of the Opinion dealing with the automatic stay covers just one page. It briefly discusses that while the husband raised the issue in the trial court, he did not brief it, and the trial court noted there were no reported cases concerning the constitutionality of the statute. The court of appeals affirmed, stating that the creditor/debtor cases cited by the husband on appeal were distinguishable, that marriage was an extraordinary contract, and that the provision satisfied the state's interest in protecting the rights of both parties to property. The court also held that either party could seek judicial relief from the automatic order. It was also noted that the clause exempting transactions in the usual course of business or for necessities of life responded to the overbreadth argument made by the husband. The decision did not cite Messenger v. Edgar, infra.

In Tennessee

The Attorney General for the state of Tennessee in Opinion No. 03-117 ruled that the temporary injunction is constitutional, but did not address due process concerns. The question was raised because the injunction conflicted with other statutory provisions.

In Illinois

The Automatic Dissolution Stay, Section 501.1(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/501.1), providing for the automatic restraint against transferring, encumbering or disposing of any property without bond, was declared unconstitutional by a lower court in a decision which was affirmed by the Supreme Court of Illinois without dissent. Messenger v. Edgar, 157 Ill.2d 162, 623 N.E.2d 310 (Ill.1993). (This author presented the constitutional challenge.)

The plaintiff's position was not a popular one. The defendant argued that the automatic injunction was a time-saver for the courts and could protect attorneys from malpractice claims for failure to obtain injunctive relief. The State of Illinois, as well as the Illinois State Bar Association and the American Academy of Matrimonial Lawyers, as “friends of the court,” argued that the “stay” was not actually an injunction and therefore that the due process analysis was not appropriate. They argued that this case was similar to Bank of Aspen v. Fox Cartage, Inc., 126 Ill.2d 307 (1989), which held that the restraining provision of a citation to discover assets issued to a third party was merely notice, not an injunction. The court held the case in point to be “markedly different” from the provisions at issue in Bank of Aspen. In that case, the relevant statute, Section 501.1(a)(1), dealt with the transfer, not of another person's property, but one's own.

The Illinois Supreme Court decided the case on substantive due process grounds, holding that the restraining provision was overbroad because it automatically restrained a party's non-marital property as well as marital property (unlike the Arizona statute upheld in Stone, supra). The opinion stated that, “by virtue of the excessively broad sweep of this section to include a restraint affecting property that cannot be considered in any way a marital asset, the means adopted by the legislature is not a rational means of accomplishing its purpose.” In addition, there are at least five respects in which the statute violated procedural due process:

• The failure to provide for notice prior to the deprivation of one's property;
• The failure to provide for a hearing prior to the deprivation of one's property;
• The failure to require the filing of a factual affidavit;
• The failure to require that a judge order the restraint; and
• The failure to require a bond or specific finding as to why bond is not required.

Although many had referred to this statute as an important expression of public policy, the public policy of Illinois is to be found in its constitution. Hyatte v. Quinn, 607 N.E.2d 321 (2d Dist.1993). No matter what the purported public policy, there is no excuse for violating due process rights. See, e.g., People ex.rel. Brazen v. Finley, 146 Ill.App.3d 750 (1st Dist.1986) (rule requiring plaintiff's lawyer to submit affidavit, purpose of which was to shield the public from unethical solicitation by over-reaching attorneys, although well-intentioned, was violative of constitution).

The Illinois Supreme Court did not have to reach the separation of powers argument, although the trial court had ruled that the statute was also violative of that doctrine because granting injunctions is the province of the courts, not the legislature. This is also a legitimate issue that needs to be addressed when dealing with such legislative injunctions.

Conclusion

A dissolution action stay ' no matter how it is drafted ' cannot avoid substantial constitutional infirmities. Practitioners in states with statutes similar to the one in Illinois, may be unaware of the Illinois Supreme Court's landmark ruling in Messenger. Perhaps the arguments made in that case can assist them in mounting a successful challenge to those statutes in their states.

Paul L. Feinstein of Paul L. Feinstein, Ltd. is a Chicago sole practitioner and a member of this newsletter's Board of Editors. He concentrates his practice in family law, with emphasis on divorce litigation, custody and visitation, and appeals.

A recent article in The Matrimonial Strategist discussed a new statute in New York providing for automatic temporary restraining orders against assets commencing with the filing and service of divorce papers. The state of New York is one of a number of states, such as California, Maine, Georgia, Oregon, Tennessee, Oklahoma, Connecticut, Colorado, Arizona, Illinois, and Rhode Island, that have enacted, or tried to enact, such legislative provisions. These statutes, for the most part, appear to be allowed to take effect unchallenged. However, there are serious constitutional issues that should be addressed. There was a successful challenge to the statute in Illinois, and similar challenges might be successful in other states.

Cases in Point

Mathews v. Eldridge

In Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the U.S. Supreme Court held that “identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33. While this is generally framed as a procedural due process issue, as will be discussed, not all courts agree.

Stone v. Godbehere

The Arizona version of the statute survived a constitutional challenge in Stone v. Godbehere , 894 F. 2d 1131 (9th Circuit 1990). In that case, the procedural due process argument failed because there was no allegation or evidence of a risk of erroneous deprivation, which is part of the test of Mathews v. Eldridge, supra. Also, the private interest was reduced because the statute only affected community property in which the other spouse had an interest. The court's due process analysis consisted of one page. What if there is a factual or legal issue as to whether the property is community (marital) or separate (non-marital)?

In Re Marriage of Finer

Some of the statutes also contain a restraint against physical abuse and the removal of a child from the jurisdiction. The latter was successfully attacked in In Re Marriage of Finer, 893 P.2d 1381 (Colo. App. 1995). In that case, the statute itself was not attacked; the issue was the court's refusal to schedule a hearing on a petition to modify the automatic injunction regarding a motion to remove the parties' child from the state. It was held that the statute implicitly required the trial court to schedule a timely hearing on such a motion. Failure to do so was a violation of due process.

Gale v. Superior Court

In Gale v. Superior Court , 122 Cal. App. 4th 1388 (2004), the court stated that due process required the California version of the statute to exclude transfer of the property for the usual course of business or for the necessities of life. The case does not explain why the statute itself satisfies due process; this case only dealt with the fact that a third party who did not have notice of the injunction was not restrained by it. A non-published, non-citable decision in California, In Re Marriage of Egedi, 2004 WL 113557 (Cal. App. 2 Dist.), upheld the statute, but the portion of the Opinion dealing with the automatic stay covers just one page. It briefly discusses that while the husband raised the issue in the trial court, he did not brief it, and the trial court noted there were no reported cases concerning the constitutionality of the statute. The court of appeals affirmed, stating that the creditor/debtor cases cited by the husband on appeal were distinguishable, that marriage was an extraordinary contract, and that the provision satisfied the state's interest in protecting the rights of both parties to property. The court also held that either party could seek judicial relief from the automatic order. It was also noted that the clause exempting transactions in the usual course of business or for necessities of life responded to the overbreadth argument made by the husband. The decision did not cite Messenger v. Edgar, infra.

In Tennessee

The Attorney General for the state of Tennessee in Opinion No. 03-117 ruled that the temporary injunction is constitutional, but did not address due process concerns. The question was raised because the injunction conflicted with other statutory provisions.

In Illinois

The Automatic Dissolution Stay, Section 501.1(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/501.1), providing for the automatic restraint against transferring, encumbering or disposing of any property without bond, was declared unconstitutional by a lower court in a decision which was affirmed by the Supreme Court of Illinois without dissent. Messenger v. Edgar , 157 Ill.2d 162, 623 N.E.2d 310 (Ill.1993). (This author presented the constitutional challenge.)

The plaintiff's position was not a popular one. The defendant argued that the automatic injunction was a time-saver for the courts and could protect attorneys from malpractice claims for failure to obtain injunctive relief. The State of Illinois, as well as the Illinois State Bar Association and the American Academy of Matrimonial Lawyers, as “friends of the court,” argued that the “stay” was not actually an injunction and therefore that the due process analysis was not appropriate. They argued that this case was similar to Bank of Aspen v. Fox Cartage, Inc. , 126 Ill.2d 307 (1989), which held that the restraining provision of a citation to discover assets issued to a third party was merely notice, not an injunction. The court held the case in point to be “markedly different” from the provisions at issue in Bank of Aspen. In that case, the relevant statute, Section 501.1(a)(1), dealt with the transfer, not of another person's property, but one's own.

The Illinois Supreme Court decided the case on substantive due process grounds, holding that the restraining provision was overbroad because it automatically restrained a party's non-marital property as well as marital property (unlike the Arizona statute upheld in Stone, supra). The opinion stated that, “by virtue of the excessively broad sweep of this section to include a restraint affecting property that cannot be considered in any way a marital asset, the means adopted by the legislature is not a rational means of accomplishing its purpose.” In addition, there are at least five respects in which the statute violated procedural due process:

• The failure to provide for notice prior to the deprivation of one's property;
• The failure to provide for a hearing prior to the deprivation of one's property;
• The failure to require the filing of a factual affidavit;
• The failure to require that a judge order the restraint; and
• The failure to require a bond or specific finding as to why bond is not required.

Although many had referred to this statute as an important expression of public policy, the public policy of Illinois is to be found in its constitution. Hyatte v. Quinn , 607 N.E.2d 321 (2d Dist.1993). No matter what the purported public policy, there is no excuse for violating due process rights. See, e.g., People ex.rel. Brazen v. Finley , 146 Ill.App.3d 750 (1st Dist.1986) (rule requiring plaintiff's lawyer to submit affidavit, purpose of which was to shield the public from unethical solicitation by over-reaching attorneys, although well-intentioned, was violative of constitution).

The Illinois Supreme Court did not have to reach the separation of powers argument, although the trial court had ruled that the statute was also violative of that doctrine because granting injunctions is the province of the courts, not the legislature. This is also a legitimate issue that needs to be addressed when dealing with such legislative injunctions.

Conclusion

A dissolution action stay ' no matter how it is drafted ' cannot avoid substantial constitutional infirmities. Practitioners in states with statutes similar to the one in Illinois, may be unaware of the Illinois Supreme Court's landmark ruling in Messenger. Perhaps the arguments made in that case can assist them in mounting a successful challenge to those statutes in their states.

Paul L. Feinstein of Paul L. Feinstein, Ltd. is a Chicago sole practitioner and a member of this newsletter's Board of Editors. He concentrates his practice in family law, with emphasis on divorce litigation, custody and visitation, and appeals.