The forgotten writ By Scott C. Colky

Most common law writs were abolished by the enactment of the Code of Civil Procedure in 1982 (735 ILCS 5/2-1501). However, hiding in the Code of Civil Procedure is a wonderful tool in the form of the writ of ne exeat or ne exeat republica. Section 16-101 of the Illinois Code of Civil Procedure provides this remedy which prevents a debtor, a potential debtor, or a potential kidnapper from leaving the state (735 ILCS 5/16-101 et seq.). In cases where a parent threatens to flee the jurisdiction with a child, this writ may be a very effective weapon.

Although unfamiliar to the majority of practitioners and judges, a proceeding for a writ of ne exeat is not particularly complicated. It is held on an ex-parte basis, just as if one were seeking a temporary restraining order. The complaint or petition requires a supporting affidavit as to the truth of the allegations contained in the pleading (735 ILCS 5/16-104). If the court grants the requested relief, the writ cannot issue unless and until the plaintiff has posted a penalty bond and security with the Clerk of the Court. A bond and factual verified pleadings are required, since the Writ of Ne Exeat carries with it the possibility of jail time for the debtor or child snatcher. The court also sets bond for the defendant or the respondent, providing the keys so that he or she does not have to be incarcerated. As a practical matter, the arrangements for posting a penalty bond should be made as soon as possible after determining that a writ will be sought and before requesting the relief from the court, since this is a novel proceeding and surety providers may unwilling to underwrite a penalty bond in such an unfamiliar proceeding.

The writ of ne exeat will be served by a sheriff as if it were a warrant for the arrest of the defendant. The defendant must post bond with surety in the sum specified by the court, and conditioned on the fact that he or she will not depart the state without leave of the court, and that he or she will answer any judgment entered against him or her. In the absence of such a bond the defendant may be committed to a penal institution other than a penitentiary (750 ILCS 5/16-107). In the event the defendant flees after posting bond, the surety may surrender the defendant before the bond is forfeited, and receive a discharge from the surety bond (750 ILCS 5/16-108).

The Illinois Supreme Court reviewed a case where a writ of ne exeat had been issued in Feingold v. Feingold, 345 Ill. 203, 177 N.E. 881 (1931), and determined that the writ had been issued based upon a fraudulent complaint in a divorce proceeding. The plaintiff in Feingold alleged that her husband was the owner of property in Ohio and that he had threatened to transfer or encumber his businesses and leave her unsupported. She also alleged that he had threatened to leave Illinois and conceal himself. On the plaintiff's complaint, the trial court issued a writ of ne exeat, and conditioned the defendant's release on the posting of a $1,000 bond. The court subsequently increased the defendant's bond to $10,000, and the defendant spent over a month in jail before the court had a hearing and determined the petition for writ of ne exeat was fraudulent. Feingold is informative as it gives an over view of both the severity of this writ, and the implications of its abuse.

The appellate court considered whether a court had the authority to issue a writ of ne exeat without requiring plaintiff to first obtain a bond in Sweasy v. Snyder, 192 Ill.App.3d 749, 549 N.E.2d 613, 139 Ill.Dec.887 (3 Dist. 1989). The appellate court stated that "the ne exeat statute does not give the court discretion to waive the petitioner's obligation to post bond and sufficient surety."

Because it is an extraordinary remedy, a writ of ne exeat should only be granted in serious cases. In 1951 the appellate court in a separate maintenance case stated that a writ of ne exeat "is an extraordinary writ, which should never be issued except upon the clearest showing that would justify depriving one of his liberty." Earles v. Earles, 343 Ill. App. 447, 99 NE.2d 359 (l Dist.).

The writ of ne exeat was originally a high prerogative writ used by the King to prevent, for reasons of state, some person from availing himself of the privilege granted freemen by Magna Carta of going beyond seas without interference, and was afterward used to aid equitable claims by a process similar to that of capias ad respondendum in legal claims, was, by our statute, originally enacted in 1827, made to apply to legal as well as equitable demands, and to both in cases where the debt or demand was not due but existed fairly and in expectancy at the time of making application for the writ.

Earles at 343.

Twenty-eight years later, the appellate court had the opportunity to discuss the writ of ne exeat in the context of dissolution of marriage proceedings. In In re the Marriage of Gurda, 711 N.E.2d 339, 238 Ill.Dec. 236 (1 Dist. 1999) there were contested property issues. The trial court ordered the husband to pay the wife the sum of $218,927.80 in satisfaction of her property interests in the marital estate. The trial court also ordered the respondent to surrender his passport. The appellate court, citing Lowe v. Norfolk & Western Ry Co. , 96 Ill.App.3d 637, 644, 52 Ill.Dec. 108, 421 N.E.2d 971 (1981) in dicta stated that "a court has a duty, as well as power, to protect its jurisdiction over a controversy in order to decree complete and final justice between the parties."

Section 16-101 et seq. of the Illinois Code of Civil Procedure provides that a writ of ne exeat republica may be granted in cases where a judgment debtor may leave the jurisdiction and take his property with him (735 ILCS 5/16-101). To warrant the issuance of such a writ there must be a probable or threatened departure of the defendant from the state or the country, with intent to evade jurisdiction. See Andersen v. Andersen, 315 Ill.App.380, 387, 43 N.E.2d 176 (1942).

The appellate court in Gurda also discussed the trial court's sua sponte injunctive remedy requiring the respondent to surrender his passport. The appellate court found the trial court had the right to regulate international travel within the bounds of due process. The appellate court indicated that had the relief been requested in the petition for dissolution, and had the court heard evidence on the issue at trial and provided reasoning for it's decision there would have been a reasonable basis for the remedy fashioned by the court in Gurda. The trial court was overturned, as the issue was not properly before the court and without a hearing, the respondent's due process rights had been violated.

In 1979, Charles J. Fleck, then the presiding Judge of the Domestic Relations Division of Cook County, Illinois, examined the writ of ne exeat remedy for child kidnapping cases in an article appearing in the Kent Law Review:

Writs of ne exeat have been widely utilized in divorce actions to restrain a party threatening to flee the jurisdiction in order to avoid payment of alimony or child support. In view of the dearth of legal tools to combat child snatching, a writ of ne exeat is a very effective legal weapon if the parent with custody has prior knowledge that the other parent intends to leave the state.

Kent Law Review, Vol. 303, 1979.

Twenty years later, the writ of ne exeat has been overlooked. The writ, along with the ruling in Gurda, should provide modern practitioners with two remedies directed at litigants who may attempt to flee the jurisdiction. The Gurda remedy of impounding a passport may have the effect of preventing a debtor or potential child snatcher from leaving the country. A very large bond posted by a defendant or respondent in a response to a Writ of Ne Exeat should be an even greater deterrent.