In re Marriage of Munger

Case Date: 06/06/2003
Court: 4th District Appellate
Docket No: 4-02-0937 Rel

NO. 4-02-0937

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Marriage of
CATHERINE MUNGER,
                       Petitioner-Appellant,
                       and
THURMAN MUNGER,
                       Respondent-Appellee.
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Appeal from
Circuit Court of
Adams County
No. 02OP160

Honorable
Chet W. Vahle,
Judge Presiding.


JUSTICE APPLETON delivered the opinion of the court:

Catherine and Thurman Munger, husband and wife, filedpetitions for orders of protection against one another. They hada daughter in day care. After an evidentiary hearing on the twopetitions, the trial court granted Catherine's petition anddenied Thurman's petition. In its order of protection, the trialcourt awarded temporary custody of the child to Catherine andallowed Thurman the right to visit the child.

Afterward, Thurman filed a petition for a rule to showcause, complaining that Catherine had frustrated the visitationprovisions in the order of protection. The trial court dismissedthe petition for a rule to show cause but ordered that Thurman'svisits with the child would henceforth be unsupervised.

Catherine appeals, arguing that by eliminating the supervision ofvisitation, the trial court modified the order of protection suasponte, without a written motion to do so or prior notice to her. Thurman has filed no brief. Nevertheless, the record is simple,and we can easily decide the issues in this appeal without anappellee's brief. See First Capitol Mortgage Corp. v. TalandisConstruction Co., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495(1976). Catherine's brief finds support in the record and pointsto prima facie reversible error. See Talandis, 63 Ill. 2d at133, 345 N.E.2d at 495.

Catherine argues that the lack of (1) a written motionto modify the protective order, and (2) advance written notice toher are fatal to the trial court's modification of its protectiveorder. We affirm the trial court's judgment.

I. BACKGROUND

The order of protection allowed Thurman to visit thechild only "while [the] child [was] at [Daydreams] [D]aycare[,]with 48[-]hour advance written notice to the day[]care and[Catherine,] or as agreed in writing by the parties throughcounsel." Thurman was to stay at least 500 feet from Catherineand--except when visiting the child at Daydreams Daycare--thesame distance from the child, too.

On September 17, 2002, Thurman filed his petition for arule to show cause, alleging that Catherine had disenrolled thechild from Daydreams Daycare without telling him she was going todo so or letting him know where he could visit the child.

According to an order entered on October 4, 2002, the"[p]arties appear[ed] with counsel in [an] attempt to renegotiatevisitation. By agreement, [Thurman could] have visitation[,] asarranged through [a] private visitation supervision service or[as] otherwise agreed [to] by the parties, of at least [two] daysevery other week."

On October 11, 2002, the trial court held an evidentiary hearing on Thurman's petition for a rule to show cause. Thurman testified that on September 6, 2002, Daydreams Daycaretold him the child was no longer enrolled there. This news cameas a surprise to Thurman. His attorney called Catherine'sattorney and learned that the child was now enrolled in the daycare at Blessing Hospital, where Catherine worked. The order ofprotection expressly forbade Thurman from entering that hospital(except in a medical emergency or--with advance notice toCatherine--for routine treatment or to visit a patient). As aconsequence, he was deprived of opportunities to visit hisdaughter. Thurman's attorney asked him:

"Q. Are you asking the [c]ourt to consider doing away with the supervised visitations?

A. Yes, sir."

Catherine took the stand and admitted removing thechild from Daydreams Daycare and enrolling her in BlessingDaycare. She had done so because Blessing Daycare's hours ofoperation better fit her unpredictable work schedule.

In his closing argument, Thurman's attorney told thetrial court: "As a remedy, I'm asking the [c]ourt to revisit thequestion of supervised visitation or, in the alternative, I'masking the [c]ourt to allow my client's parents to supervise."

An order entered on October 16, 2002, says:

"Cause comes on for hearing on contemptpetition. All parties present and with counsel. Petition to [s]how [c]ause is dismissed. Effective [nunc pro tunc] 10/11/02,the previous [o]rder of [p]rotection [is]hereby modified as follows:

Thurman Munger is no longer required tohave supervised visitation. Thurman Mungeris granted visitation for three six[-]hourvisits per week[,] to be arranged between[Thurman] Munger's mother and CatherineMunger. One visit shall be on Saturday orSunday. Neither party shall make unreasonable demands or restrictions on times orplaces for visitation.

By agreement, possession of the formermarital home at 4400 State Street, Quincy,IL, is awarded to Thurman Munger. All previous orders remain in effect." (Emphasisadded.)

When Catherine's attorney asked the trial court toexplain why visitations no longer needed to be supervised, thetrial court said: "[T]he reason why I'm not making [visitations]supervised is we had a workable solution set up and your clientsabotaged it, so now we are going to do whatever we have to do sothe father can visit with the child and that I'm satisfied thatthe child's safety is not compromised."

This appeal followed.

II. ANALYSIS

When a party appeals the modification of an order ofprotection, we will ask whether the trial court abused itsdiscretion. In re Marriage of Fischer, 228 Ill. App. 3d 482,489, 592 N.E.2d 604, 608 (1992). The trial court abused itsdiscretion only if its decision was "clearly against logic." State Farm Fire & Casualty Co. v. Leverton, 314 Ill. App. 3d1080, 1083, 732 N.E.2d 1094, 1096 (2000). The question is notwhether we would have made the same decision if we were the trialcourt. Leverton, 314 Ill. App. 3d at 1083, 732 N.E.2d at 1096. Rather, the question is whether the trial court made an arbitrarydecision, without using conscientious judgment, or whether, inview of all of the circumstances, the trial court overstepped thebounds of reason, ignored the law, and thereby caused substantialprejudice to the appellant. Leverton, 314 Ill. App. 3d at 1083,732 N.E.2d at 1096.

With that deferential standard of review in mind, weconsider Catherine's argument. The protective order allowedThurman to visit the child only "while [the] child [was] at[Daydreams] [D]aycare[,] with 48[-]hour advance written notice tothe day[]care and [Catherine,] or as agreed in writing by theparties through counsel." (Emphasis added.) Pursuant to theprotective order, the parties agreed, in writing, that Thurmancould "have visitation[,] as arranged through [a] private visitation supervision service or [as] otherwise agreed [to] by theparties, of at least [two] days every other week." Clearly, whenthe parties renegotiated visitation, they did so under the aegisof the protective order, which remained in force.

Section 224(b) of the Illinois Domestic Violence Act of1986 (Act) provides: "Upon motion by petitioner or respondent,the court may modify any prior order of protection's remedy for*** visitation ***." 750 ILCS 60/224(b) (West 2000). Section210.1(c)(i) of the Act provides: "Notice in the pending civilcase shall be given (i) by either party under this [s]ection,with respect to *** modifications *** or other relief pertinentto an order of protection, in accordance with Illinois SupremeCourt Rules 11 and 12 ***." 750 ILCS 60/210.1(c)(i) (West 2000). Those rules describe how to serve "papers" on opposing parties(145 Ill. 2d R. 11) and how to certify, in writing, that one hasdone so (145 Ill. 2d R. 12). "'Paper' means pleading, motion,notice, *** or other paper or combination of papers required orpermitted to be filed." 134 Ill. 2d R. 2(b)(3). These statutorysections and supreme court rules require a party requesting themodification of a protective order to file a motion requestingthat relief and to serve a copy of the motion and a notice ofhearing upon the opposing party.

The order of protection allowed Thurman to visit thechild either (1) at Daydreams Daycare or (2) as the partiesagreed in writing. Because Catherine, without notice to Thurman,had taken the child out of Daydreams Daycare, he could not visitthe child there. The protective order nevertheless remained inforce--and precisely because it remained in force, Catherine wasat risk of being found in contempt of court. For Thurman, theonly remaining option, under the protective order, was hisvisiting the child "as agreed in writing by the parties throughcounsel." The parties agreed, in writing, to supervised visitation.

When the trial court, without Catherine's agreement,eliminated the supervision of Thurman's visits, it contradictedand effectively modified the protective order, without a writtenmotion to do so or prior notice to Catherine. We agree with thetrial court's characterization of its order of October 16, 2002: it was a modification of the protective order.

While it is true that Catherine was not given priornotice of the court's consideration of the issue of modificationin accord with section 224(b) of the Act (750 ILCS 60/224(b)(West 2000)) or Supreme Court Rules 11 and 12 (145 Ill. 2d Rs.11, 12), we find the power to make such a change in the previously ordered visitation inherent in the trial court's authority. "A court's authority to dissolve or modify a previously enteredinjunctive order exists in a dissolution proceeding just as inother civil proceedings." In re Marriage of Fischer, 228 Ill.App. 3d 482, 488, 592 N.E.2d 604, 608 (1992); In re Marriage ofDe Rosa, 115 Ill. App. 3d 774, 778, 451 N.E.2d 13, 15 (1983);Melvin v. Melvin, 94 Ill. App. 2d 403, 236 N.E.2d 913 (1968)(abstract of opinion); Field v. Field, 79 Ill. App. 2d 355, 359,223 N.E.2d 551, 553-54 (1967). It has also been said that "[t]hemeasure of the court's power in a civil contempt proceeding isdetermined by the requirements of full remedial relief." Sauberv. Whetstone, 199 F.2d 520, 523 (7th Cir. 1952).

The trial court here had jurisdiction of the subjectmatter and of the parties. We hereby find that it further hadthe power to make such modifications of the visitation under thecircumstances presented here consistent with the best interest ofthe child. 750 ILCS 5/607(c) (West 2000).

III. CONCLUSION

For the foregoing reasons, we affirm the trial court'sjudgment.

Affirmed.

MYERSCOUGH, P.J., concurs.

McCULLOUGH, J., specially concurs.


JUSTICE McCULLOUGH, specially concurring:

I agree that the trial court did not abuse its discretion in altering the visitation provisions of the protectiveorder. The trial court found Catherine in contempt, stating thatshe sabotaged the court's order of protection. Nevertheless, thetrial court dismissed the rule to show cause upon modification ofthe order of protection to facilitate visitation by Thurman.

The measure of the power of the court in a civilcontempt proceeding is determined by the requirements of fullremedial relief. See Sauber, 199 F.2d at 523. Moreover, a partywho refuses to obey the mandate of the court demonstrates hercontempt for the courts and is not entitled to their affirmativeassistance. See Wick v. Wick, 19 Ill. 2d 457, 459, 167 N.E.2d207, 209 (1960).

As a result, not only did the trial court have jurisdiction of the subject matter and the parties, it had the powerto modify the original order as a means to provide full remedialrelief. The record suggests that it was Catherine's disobedienceto the original order that caused Thurman to initiate the contempt proceeding. Catherine ought not be heard to complain aboutthe procedures employed to enforce the order of protection,particularly since she does not argue that the modification isnot supported by the evidence.

No abuse of discretion was demonstrated.

A final note. Hopefully, at some stage, Catherine andThurman will cast aside their selfish personal interests for thebest interests of the child.