Wilson v. Jackson
Case Date: 04/20/2000
Court: 3rd District Appellate
Docket No: 3-99-0383
Wilson v. Jackson, No. 3-99-03833rd District, 20 April 2000
PRESIDING JUSTICE SLATER delivered the opinion of the court: Respondent Erica Lashawn Jackson appeals from the orders of the trial court granting emergency, interim and plenaryorders of protection in favor of petitioner Robby Joe Wilson. We reverse. Facts Petitioner and respondent lived together from approximately September of 1997 to April of 1998. Shortly before they brokeup, respondent became pregnant. According to respondent, she broke up with petitioner because he was overbearing,possessive and controlling. Petitioner did not want respondent to have friends, he would go through her drawers and purseand get mad when she locked the bathroom door. Respondent described an incident where petitioner cut his wrist with arazor blade after an argument. On another occasion, petitioner prevented respondent from calling the police by yanking thephone from its socket. He then picked respondent up and threw her down. Petitioner denied that this incident occurred.After respondent ended the relationship, petitioner would repeatedly call her at work to talk about getting back together.When respondent refused to reconcile with petitioner, he threatened to take her to court and get custody of the baby. On December 9, 1998, a week before the baby was born, petitioner came to respondent's home. He had not been invited.According to petitioner, he had come to tell respondent that he wanted to be present at the child's birth and he wanted to beinvolved in the child's life. According to respondent, petitioner talked about getting back together. Respondent repeatedlytold petitioner to leave, but he refused. Respondent grabbed petitioner and began pushing him out the door. Petitionertestified that he did not resist. Respondent testified that petitioner tried to push the door open and come back in. Accordingto petitioner, respondent hit him in the face, chest and shoulders. Respondent admitted hitting petitioner's "hands and stuff"because he was trying to prevent her from closing the door. On December 16, 1998, respondent gave birth to a son, Ansley Elijah Wilson. While she was in labor, respondent triedunsuccessfully to contact petitioner, and she eventually called petitioner's mother and informed her of the impending birth.Petitioner arrived at the hospital shortly after the baby was born. The next day, petitioner signed a document acknowledgingpaternity. Eight days later, on Christmas Eve, respondent allowed petitioner to take Ansley for an unsupervised visitation.When the child was returned, he smelled of cigarette smoke and was congested. Thereafter, although no order of visitationhad been entered by any court, respondent allowed petitioner to visit with Ansley, usually at her home, on or about January2, 1999, January 7, January 14, January 25, February 13, February 16 and February 26. On February 16, 1999, petitioner came to respondent's apartment for a prearranged visit with Ansley. Petitioner offered togive respondent $40 for some baby pictures, but respondent refused. According to petitioner, he told respondent that sheshould not keep saying that he did not do anything for the baby if she was going to refuse his offers. Respondent becameangry and upset and screamed at petitioner, telling him to leave. Petitioner sat on the couch holding the baby, telling himhow much he loved him. Respondent then "jerked" Ansley out of petitioner's hands and told him to leave. According to respondent, after she refused the $40, petitioner started telling Ansley, "Your mother better never say that Ihaven't tried to give her anything" and, "Your mother is crazy" and, "Your mother needs to see somebody." She toldpetitioner to stop saying such things or leave. Petitioner then told respondent that he was going to take her to court and takethe baby from her. Respondent told petitioner to give Ansley to her and he refused. After she said it again, he handedAnsley to her and eventually left. A few days later, after talking to counselors and support groups, petitioner decided to obtain an emergency order ofprotection the next time he had possession of Ansley. He was scheduled to visit Ansley on Saturday, February 27, butrespondent agreed to change it to Friday, February 26. After petitioner picked Ansley up, he filed a petition for anemergency order of protection. Petitioner alleged that respondent physically assaulted him December 9, 1998, andcontinually harassed, intimidated, exploited and manipulated petitioner and the child. Petitioner also asserted that onFebruary 16, 1999, respondent screamed and used profane language and ripped Ansley from petitioner's hands. Petitioneralso claimed that respondent deprived him of visitation with Ansley and had left him in the care of known drug and alcoholabusers. Petitioner further alleged that respondent had abused her other children. Following an ex parte hearing, the trialcourt issued an emergency order of protection placing Ansley in petitioner's care. When petitioner did not return Ansley to respondent that evening, she telephoned petitioner. Petitioner told respondent thathe would not be returning Ansley. According to respondent, when she asked why, petitioner stated, "You have hurt me sonow it is my turn." On Monday, March 1, 1999, respondent filed a petition for rehearing pursuant to section 224(d) of the Illinois DomesticViolence Act of 1986 (Domestic Violence Act or the Act) (750 ILCS 60/224(d) (West 1998)). Respondent alleged that shehad not received prior notice of the initial hearing in which the emergency order of protection was entered and that she hada meritorious defense to the order. Respondent denied petitioner's allegations and set forth her version of the events ofDecember 9 and February 16. On March 8, 1999, petitioner filed a petition for temporary custody, permanent custody and child support. This was not partof the domestic violence case, but was a separate action filed pursuant to the Illinois Marriage and Dissolution of MarriageAct (Marriage Act) (see 750 ILCS 5/601 (West 1998)) and the Illinois Parentage Act of 1984 (Parentage Act) (see 750ILCS 45/6 (West 1998)). On the same day, a hearing was held on respondent's petition for rehearing. No report ofproceedings of the hearing is contained in the record. The court's order stated that a home study should be conducted by theDepartment of Children and Family Services (DCFS) and that the court would request the study. The court ordered theparties to cooperate with the study and continued the matter until March 17. On March 17 the parties agreed that, rather than continue the hearing on the petition for rehearing, they would proceed withthe hearing on the petition for an order of protection because the emergency order expired that day. Petitioner calledrespondent as a witness and she testified about the events of December 9, 1998, and February 16, 1999, as previouslydescribed. Petitioner then testified to his version of the events occurring on those dates. He also testified that a visitationhad been planned for February 20 but respondent canceled it on the 19th. Petitioner admitted that he could not give a datewhen respondent had ever left Ansley in the care of a drug or alcohol abuser. Petitioner also explained that he had claimedthat respondent deprived him of his right to see Ansley because respondent would not agree to establish a regular visitationschedule. After a recess, petitioner's attorney indicated that he had one more witness, but that he would accede to the request ofrespondent's attorney to call a witness out of turn. The court responded: "THE COURT: Before we get to that, as I listened to testimony, I have been considering this, and I've, I guess mymajor concern is that I ordered there to be cooperation and that there would be a DCFS home study of both homes,and Ms. Scott [respondent's attorney] tells me she disagreed. It is a court order. I don't really care what your personalopinions are. Those concerns were never voiced, and I am not going to make a final determination until I have a homestudy of both homes. So I'm going to continue the order of protection on an interim basis. I want that home study completed, and I wantcounsel to work out a shared arrangement regarding the child, and until I have that home study, I am not going to ruleon anything so- MS. SCOTT: Your Honor, I have many witnesses that I have subpoenaed here today. THE COURT: Well, it is going to be continued over. Frankly, this was set, you know, the order says it is set on themotion for hearing. That is what it was set for, and if it had been the return date on the OP, you would have appeared,and it would have been set over for hearing anyway. And there has been a blatant disregard of my court order. MS. SCOTT: I haven't done a thing. THE COURT: You told me you disagreed, and you didn't find it appropriate. MS. SCOTT: I disagree, but I haven't done a thing, Your Honor. THE COURT: You haven't done a thing to get it accomplished either. MS. SCOTT: You told me you were going to do that, Judge. THE COURT: I said I would call DCFS. I called DCFS. Work out something as far as sharing. MS. SCOTT: Your Honor, I need to be heard on the record. THE COURT: I have made my decision. I have told you. MS. SCOTT: Judge, you told me you were going to arrange- THE COURT: I told you I would call DCFS. I called Lutheran and- MS. SCOTT: And you said they would call us, *** and nobody has called us. THE COURT: Well, I made my ruling." The court then terminated the hearing on its own motion. Respondent subsequently filed a motion to reconsider the entry ofthe interim order of protection and the termination of the hearing. Respondent asserted that the evidence did not supportentry of the interim order and that because only temporary custody can be awarded under the Domestic Violence Act, ahome study was inappropriate and incompatible with respondent's right to a prompt hearing. Respondent also alleged thather attorney had not disregarded the court's order concerning the home study but had relied on the court's statement that itwould make the arrangements. After a hearing, respondent's motion was denied. On April 30, 1999, the hearing on the petition for an order of protection resumed. Petitioner presented no further witnesses.Respondent presented the testimony of Maggie Wright, a DCFS counselor, who testified that respondent's family membersare close-knit, loving and nonviolent. She had seen no evidence of drug or alcohol abuse by any member of the family.Tomeka Spencer, respondent's co-worker at Associated Bank, testified that beginning in October of 1998, petitioner wouldcall respondent at the bank three or four times a day. Alisha Ross, another bank employee, testified that in January of 1998petitioner called respondent at work seven or eight times per day. Petitioner would also call Ross at home to ask aboutrespondent's whereabouts and whom she was with. Respondent also called three additional witnesses, Theresa Coleman, aday care worker at Ansley's day care center, Terri Pates, respondent's sister, and Latanya Pates, respondent's niece. It isunnecessary to relate their testimony for purposes of resolving the issues raised on appeal. In addition respondent testifiedon her own behalf and petitioner testified in rebuttal. That testimony has already been summarized. At the conclusion of the hearing, the court stated that although respondent may have had a basis to seek an order ofprotection in the past, she did not do so. The court ruled that there had been a sufficient showing to support an order ofprotection, "based upon the incidents that have occurred, and albeit they occurred in respondent's home, um, I don'tdistinguish that from being elsewhere." The court further found that there had been interference with visitation. The courtissued a plenary order of protection in favor of petitioner, but returned custody of Ansley to respondent. Petitioner wasgranted visitation every weekend from Friday night to Sunday night. Analysis Respondent raises numerous issues on appeal, many of which relate to the issuance of the emergency order of protectionand the March 8, 1999, hearing on the petition for rehearing. However, the record does not contain a report of proceedingsfor the February 26 ex parte hearing or the March 8 hearing, nor has respondent provided a bystander's report or an agreedstatement of facts. See 166 Ill. 2d R. 323(c), (d). Absent a sufficiently complete record to support a claim of error, it ispresumed that the trial court's order was in conformity with the law and had a sufficient factual basis. Foutch v. O'Bryant,99 Ill. 2d 389, 459 N.E. 2d 958 (1984); Chabowski v. Vacation Village Ass'n, 291 Ill. App. 3d 525, 690 N.E. 2d 115 (1997).We therefore will not consider respondent's arguments relative to these hearings except for the issue of the home study, asdiscussed below. Respondent also raises issues concerning the March 17 hearing at which the court issued an interim order of protection, aswell as issues related to the subsequent denial of respondent's motion for reconsideration. These issues are, for the mostpart, moot. An issue is moot when intervening events have rendered it impossible for a reviewing court to grant thecomplaining party effectual relief. Richardson v. Rock Island County Officers Electoral Board, 179 Ill. 2d 252, 688 N.E. 2d633 (1997). Here, the interim order has expired and has been replaced by the plenary order of protection. We can afford norelief from the interim order or the denial of the motion for reconsideration. However, moot issues may be reviewed under the public interest exception to the mootness doctrine if there is a substantialpublic or private question involved, an authoritative determination is needed for future guidance, and the issue is likely torecur. Richardson, 179 Ill. 2d 252, 688 N.E. 2d 633; Whitten v. Whitten, 292 Ill. App. 3d 780, 686 N.E. 2d 19 (1997). InWhitten this court noted that the Domestic Violence Act addresses problems of public interest and that the purposes of theAct can only be achieved if courts properly apply its requirements. Because we deem it likely that the issue of orderinghome studies in domestic violence cases is likely to recur, we will consider whether such an order is authorized under theAct. Statutory authority for ordering a home study can be found in section 605 of the Marriage Act, which provides in part: " |
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