Creaser v. Creaser

Case Date: 07/29/2003
Court: 2nd District Appellate
Docket No: 2-02-0517 Rel

No. 2--02--0517


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


SHARON CREASER,

          Petitioner-Appellee,

v.

DAVID CREASER,

          Respondent-Appellant.

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Appeal from the Circuit Court
of Du Page County.

No. 02--DV--288

Honorable
Terence M. Sheen
and Jane Hird Mitton,
Judges, Presiding.


JUSTICE CALLUM delivered the opinion of the court:

Respondent, David Creaser, appeals the denial of his motion tovacate nunc pro tunc an emergency order of protection granting exclusive possession of the parties' residence to petitioner,Sharon Creaser. We reverse.

On February 19, 2002, petitioner, assisted by the Du PageCounty State's Attorney, appeared before Judge Jane Hird Mitton. Petitioner sought an emergency order of protection granting herexclusive possession of the family residence pursuant to theIllinois Domestic Violence Act of 1986 (the Act) (750 ILCS 60/101et seq. (West 2002)). The petition itself was a preprinted formwith check boxes for standard allegations and blanks for hand-written information. Where the form asked for a description of thealleged abuse, petitioner wrote:

"On 2-15-02 at approx[imately] 1:00 PM [respondent] madeaccusations that I was stealing money from him--I tried toencourage 3rd party mediation--He got off the sofa to leave. I stood in front of him to ask that we get help. I had [theparties' ten-month-old daughter] in my right arm. He grabbedmy left arm to push me out of the way. He still had hold ofmy left arm as he went thru the front door--pulling my rightshoulder (and the baby) into the doorframe."

Where the form asked for the effects of the abuse, petitioner wrotethat: "[b]ruises on my left bicep[s] were noticed the next day." Petitioner checked boxes on the form so as to aver:

"Both parties have the right to occupancy; and, consideringthe risk of further abuse by Respondent interfering with thePetitioner's safe and peaceful occupancy, the balance of thehardships favors the Petitioner because of the followingrelevant factors: Availability, accessibility, cost, safety,adequacy, location and other characteristics of alternativehousing for each party and any minors or other dependents."

At the hearing, the court inquired where respondent would liveif the order were entered. Petitioner suggested that he would staywith his parents, and then interjected that "[t]he reason for thepetition is to retrieve my belongings out of the house. He haschanged the locks so I don't have access to the house right now." She stated that he had also closed their checking and credit cardaccounts. The court asked petitioner if respondent had beenarrested on a domestic violence charge, and petitioner stated thathe would be that day. Neither the court nor the State askedpetitioner whether respondent had ever abused her in the past orwhether she feared that he would abuse her in the future.

The court found that there would likely be irreparable injuryif respondent were given notice of the proceedings. It entered anemergency order of protection giving petitioner exclusivepossession of the residence and set the matter for a hearing on aplenary order of protection on March 8, 2002.

Respondent filed a motion to vacate the emergency order ofprotection nunc pro tunc. Judge Terence M. Sheen heard this motionand held the hearing on issuance of a plenary order of protectionsimultaneously on March 8, 2002. The court seems to have foundthat respondent had not abused petitioner, although its ruling ispossibly ambiguous:

"[T]he issue is whether or not there is physical abuse. I think there was a physical touching that was inappropriate. However, I think it appears that she was also interfering withhis ability to leave. It seems it's both parties.

So, therefore, I'm going to enter an order that preventsboth parties from having any physical contact with eachother."

The court stated that the order of protection was "removed" andentered a mutual restraining order which, inter alia, prohibitedphysical contact between the parties and ordered petitioner to givekeys to the house to respondent. The court denied respondent'smotion to vacate the emergency order on the basis that respondent'stestimony that he had grabbed petitioner's wrist, given at thehearing on the plenary order, supported the granting of theemergency order.

On March 15, 2002, respondent filed a motion to reconsider thedenial of the motion to vacate. After some confusion as to whetherthis motion should have been heard by Judge Mitton or Judge Sheen,Judge Sheen denied the motion on April 22, 2002. Respondent filedhis notice of appeal on May 17, 2002. He argues that the grantingof the emergency order of protection was error because (1)petitioner did not make the showing necessary for the ex parteissuance of an emergency order, and (2) petitioner did not show bythe preponderance of evidence that there was abusive behavior byrespondent. He argues that we should hear this case, although theemergency order expired by its own terms no more than 21 days afterit was entered, either because there are residual effects onrespondent from the entry of the order, or because the publicimportance of the issues involved in this matter warrants ourreview of it despite its mootness.

Because the emergency order of protection has expired, thereis a question as to whether this appeal is moot. Respondentsuggests two bases on which we can hear his appeal despite theexpiration of the order. First, he claims that "a record showingthe existence of an order of protection against an individual haslong term effects." Although common sense may so indicate,respondent has failed to refer us to any case or statutory law soholding. Without specifying further, respondent states that"[s]olely as an example, roadblocks to the Respondent's assertionof his Second Amendment rights exist where searches show an orderof protection was held against him." Our review of Illinois lawdoes not disclose any provisions that would restrict firearmownership or use on the basis of an expired order of protection. Further, federal provisions that have come to our attentionrestrict firearm ownership or use only on the basis of currentorders of protection or the equivalent. The Public Safety andRecreational Firearms Use Protection Act restricts possession offirearms by a person subject to a court order that restrainscertain behavior toward an intimate partner or the child of theperson or the partner (18 U.S.C.