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APPELLATE COURT OF ILLINOIS

I. INTRODUCTION

Petitioner, Cynthia Hedrick-Koroll, sought an order of protection against respondent, HughesAnderson Bagley, Jr. The trial court issued an ex parte emergency order of protection and ultimatelya plenary order of protection. On appeal, respondent raises several contentions, but we need addressonly one of them. We conclude that the trial court failed to make the factual findings required bysection 214(c)(3) of the Illinois Domestic Violence Act of 1986 (Act) (750 ILCS 60/214(c)(3) (West2002)). Therefore, we remand so that the trial court can make the required findings.

II. BACKGROUND

We discuss only those facts pertinent to our disposition of the appeal. The parties begandating during the spring of 2001, shortly before they graduated from law school in De Kalb. Afterlaw school, respondent returned to his home in Sioux City, Iowa, and petitioner returned to LovesPark. The parties' relationship ended around November 2001.

On May 17, 2002, petitioner sought an order of protection against respondent. Accordingto the verified petition, respondent:

"has been advised by petitioner and [her] attorney--by e-mail and regular mail, todiscontinue all contact by phone, by e-mail. [Respondent] is an ex-convict with numerouscriminal violations including weapons charges. He has continued to contact me, by e-mail,by phone (home and cell) and has issued threats against my professional relationships. He hasbeen observing--or having observed--my home + activities. He has consistently warned meof further harm if I contact my attorney or my attorney contacts him. I am in great fear of thevolatile nature of his conduct, his continued attempts to have contact with me, his writtenletters of animosity against my daughter and Karl A. Szymanski [petitioner's fiance]. He haspermanent orders of protection against him in Plymouth County[, Iowa,] for both of hisparents. I believe he will come to Illinois, harm me and my daughter and may enter myworkplace or Mr. Szymanski's workplace to harm me or others."

On May 17, 2002, Judge Truitt issued an ex parte emergency order protecting petitioner,Szymanski, and petitioner's three children. The order directed respondent to stay away frompetitioner and all other protected persons and prohibited him from contacting them or engaging insurveillance of them. The order prohibited him from committing physical abuse, harassment,interference with personal liberty, intimidation of a dependent, willful deprivation, neglect,exploitation, and stalking. Also, the order prohibited respondent from entering or remaining atpetitioner's residence, Harlem High School, or petitioner's or Szymanski's place of employment. Theemergency order was to remain in effect until May 30, 2002.

The trial court extended the emergency order of protection each time the cause wascontinued. The hearing on the plenary order of protection took place before Judge Nordquist on July19, 2002, November 8, 2002, and May 29, 2003. At the conclusion of the hearing on May 29, 2003,the trial court took the matter under advisement and continued the cause for a decision.

On July 1, 2003, the trial court issued a plenary order of protection expiring on January 1,2004. The terms of the plenary order were substantially the same as the terms of the emergency orderof protection. Most notably, the plenary order enjoined defendant from contacting the protectedpersons by telephone, mail, or e-mail, and from conducting surveillance of any protected person. Respondent timely appealed.

III. DISCUSSION

A. Mootness

Because the emergency order of protection expired and was replaced by the plenary order ofprotection, and because the plenary order of protection expired on January 1, 2004, the issuesrespondent raises on appeal are moot. Wilson v. Jackson, 312 Ill. App. 3d 1156, 1162-63 (2000). We address this appeal, however, under the public interest exception to the mootness doctrine. SeeCreaser v. Creaser, 342 Ill. App. 3d 215, 219 (2003) (moot issues may be reviewed under publicinterest exception where there is a substantial public or private question involved, an authoritativedetermination is required for future guidance, and the issue is likely to recur); Whitten v. Whitten, 292Ill. App. 3d 780, 784 (1997) (orders of protection address problems of public interest, and theirpurposes can be achieved only if courts properly apply the statutory requirements). Also, we notethat respondent represents that, in January 2004, petitioner obtained a two-year extension of theplenary order of protection. Thus, our ruling on the validity of the trial court's orders will impact theextension currently in place.

B. Lack of Factual Findings

Although respondent raises several contentions on appeal, we need address only his argumentthat the trial court failed to make the factual findings required by section 214(c) of the Act. We notethat respondent's failure to raise this issue in the trial court does not preclude us from addressing it. In re Marriage of Henry, 297 Ill. App. 3d 139, 141-43 (1998).

Addressing the factual findings required for all types of orders of protection, section 214(c)provides in pertinent part:

"(1) In determining whether to grant a specific remedy, *** the court shall considerrelevant factors, including but not limited to the following:

(i) the nature, frequency, severity, pattern and consequences of therespondent's past abuse, neglect or exploitation of the petitioner or any family orhousehold member, *** and the likelihood of danger of future abuse, neglect, orexploitation to petitioner or any member of petitioner's or respondent's family orhousehold[.]

* * *

(3) Subject to the exceptions set forth in paragraph (4) of this subsection, the courtshall make its findings in an official record or in writing, and shall at a minimum set forth thefollowing:

(i) That the court has considered the applicable relevant factors described inparagraphs (1) and (2) of this subsection.

(ii) Whether the conduct or actions of respondent, unless prohibited, will likelycause irreparable harm or continued abuse.

(iii) Whether it is necessary to grant the requested relief in order to protectpetitioner or other alleged abused persons.

(4) For purposes of issuing an ex parte emergency order of protection, the court, asan alternative to or as a supplement to making the findings described in paragraphs (c)(3)(i)through (c)(3)(iii) of this subsection, may use the following procedure:

When a verified petition for an emergency order of protection *** is presented to thecourt, the court shall examine petitioner on oath or affirmation. An emergency order ofprotection shall be issued by the court if it appears from the contents of the petition and theexamination of petitioner that the averments are sufficient to indicate abuse by respondent andto support the granting of relief under the issuance of the emergency order of protection." 750 ILCS 60/214(c) (West 2002).

The record contains no indication that the trial court made any findings before issuing theemergency order of protection. The order states that it is "based on the findings of this court ***which were made orally for transcription." There is no transcript of the hearing during which the trialcourt issued the emergency order of protection, and thus no "official record" of the trial court'sfindings. Section 214(c)(4) provides that, as an alternative to making specific findings, the court mayissue an emergency order of protection after examining the petitioner under oath or affirmation andreviewing the contents of the verified petition. Here, because there is nothing in the record indicatingthat the trial court examined petitioner under oath or affirmation, we cannot confirm that the courtcomplied with section 214(c)(4).

We believe that it would be unfair here to resolve any doubts arising from the incompleterecord against respondent. See Glater v. Fabianich, 252 Ill. App. 3d 372, 377 (1993). The recordreveals that respondent attempted, apparently unsuccessfully, to obtain the missing transcript fromthe circuit court clerk. Respondent was not present during the hearing and therefore would not havehad a meaningful opportunity to present a bystander's report or an agreed statement of facts. See 166Ill. 2d Rs. 323(c), (d).

There is similarly no indication that the trial court made the required findings upon issuing theplenary order of protection. The order states that it is "based on the findings of this court *** whichwere made orally for transcription." At the conclusion of the hearing, the trial court took the matterunder advisement and never made any oral findings. In its memorandum of decision, the court merelystates that "Petitioner has proven her Petition by her burden of proof ***." This cursory finding doesnot satisfy the statutory requirements. See People ex rel. Minteer v. Kozin, 297 Ill. App. 3d 1038,1043 (1998) (court's finding that " 'the respondent has failed to overcome the prima facie caseestablished in the record' " was insufficient).

The failure to make the required findings is reversible error. Kozin, 297 Ill. App. 3d at 1043;Henry, 297 Ill. App. 3d at 143-44. In Henry, this court reversed the order of protection outright. We conclude that Henry is distinguishable because the opinion in Henry contains no indication thatany purpose would have been served by remanding the cause so that the trial court could make therequired findings. Here, because the trial court has extended the plenary order of protection, itsvalidity is still directly at issue. Accordingly, remanding the cause to have the trial court make therequired findings would not be a meaningless exercise. We note that, in other settings, the typicalremedy when the trial court fails to make specific findings required by law is to remand the cause toallow the court to make those findings. See Bedoya v. Illinois Founders Insurance Co., 293 Ill. App.3d 668, 681 (1997) (trial court failed to set forth findings required before imposing sanctions underSupreme Court Rule 137 (134 Ill. 2d R. 137)); People ex rel. Graham v. Adams, 239 Ill. App. 3d 643,647-48 (1993) (trial court failed to set forth specific findings supporting its decision to deviate fromstatutory guidelines governing child support).

We are aware that the litigation here has been extensive and that our decision will delay anappeal on the merits. Nevertheless, given the clear authority of section 214(c)(3) of the Act, we mustremand for compliance with that statutory provision.

IV. CONCLUSION

Accordingly, we remand the cause so that the circuit court of Winnebago County can set forththe findings mandated by section 214(c)(3) of the Act.

Remanded.

McLAREN and HUTCHINSON, JJ., concur.