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Lutz v. Lutz, No. 4-98-0908

4th District, 3 May 2000

JUSTICE KNECHT delivered the opinion of the court:

Respondent, Randall J. Lutz, appeals the extension of a plenary order of protection entered by the circuit court ofChampaign County pursuant to the Illinois Domestic Violence Act of 1986 (Act) (750 ILCS 60/101 et seq. (West 1998)),on October 28, 1998, in favor of petitioner, Michelle Lutz, his former spouse. Respondent alleges the trial court abused itsdiscretion in extending the plenary order of protection when (1) the original plenary order did not include sufficientfindings, (2) the evidence did not warrant extending the order of protection, and (3) the original plenary order of protectionhad expired on its own terms. We affirm.

On October 2, 1997, petitioner filed a petition for order of protection. That same day, the trial court entered an ex parteemergency order of protection and set a hearing for the plenary order of protection for October 21, 1997. On October 15,1997, respondent filed an answer and general denial of the allegations in the petition.

At the hearing on the petition for order of protection on October 28, 1997, both parties were present and represented bycounsel. A transcript of the hearing has not been made part of the appellate record; however, a docket entry indicates theparties agreed to a plenary order of protection for a period of one year. The relevant entry provides in pertinent part: "Byagreement of the parties, a one[-]year [p]lenary [o]rder of [p]rotection is GRANTED." The trial court issued the plenaryorder of protection on October 28, 1997, at 9:20 a.m., to expire on October 28, 1998, at 9:20 a.m. The trial court included inthe plenary order of protection a written finding the court had jurisdiction over the parties and minor children. No otherwritten findings were included in the order.

On August 14, 1998, the State's Attorney for Champaign County filed a petition for indirect criminal contempt, allegingrespondent violated the order of protection on August 13, 1998, when he attempted to contact petitioner at her residence.The State attached various documents in support of its petition, including an arrest report that detailed the alleged violationand a notice filed by the sheriff of Champaign County that indicated respondent had been arrested on August 13, 1998,without a warrant for the alleged violation of the protection order (720 ILCS 5/12-30 (West 1998)). The trial court arraignedrespondent on August 14, 1998, and set recognizance bond at $1,000 on August 17, 1998.

On October 20, 1998, petitioner filed a motion to modify the prior petition and order of protection. The trial court held thehearing for petitioner's motion on October 28, 1998. At the hearing, petitioner testified, over the objection of respondent'scounsel, respondent had violated the original order of protection. Petitioner further testified she continued to fearrespondent.

The trial court interpreted petitioner's motion as a motion for extension and entered an order extending the original order ofprotection. In so doing, the trial court found by a preponderance of the evidence no material change in circumstance hadoccurred since the entry of the original order. The trial court included in its order express written findings that (1)respondent had abused petitioner and (2) the court had jurisdiction over the parties and minor children. This appealfollowed.

At the outset, we address the threshold issue of whether the doctrine of mootness applies to the facts of the present case.Here, the extended plenary order of protection, which respondent seeks to invalidate, expired on it own terms on October28, 1999. A case on appeal becomes moot when the issues involved no longer exist because events occurring after the filingof appeal make it impossible for the appellate court to grant effective relief. In the present case, even assuming theexpiration of the order of protection rendered this appeal formally moot, the issues presented are reviewable under thepublic interest exception to the mootness doctrine. See Whitten v. Whitten, 292 Ill. App. 3d 780, 784, 686 N.E.2d 19, 22(1997) (finding societal interest in protecting victims of domestic violence constitutes issue of public concern).

Turning to the merits of respondent's appeal, respondent contends the trial court abused its discretion in issuing theextended order of protection. We disagree.

The Act (750 ILCS 60/101 through 401 (West 1998)) provides for entry of (1) an emergency order of protection ((750 ILCS60/217 (West 1998)), (2) a 30-day interim order of protection (750 ILCS 60/218 (West 1998)), and (3) a plenary order ofprotection (750 ILCS 60/219 (West 1998)). A plenary order of protection shall issue if the trial court finds respondentabused any person protected under the order (750 ILCS 60/214(a) (West 1998)). Section 220(e) of the Act (750 ILCS60/220(e) (West 1998)) provides a plenary order of protection may be extended on the basis of petitioner's motion oraffidavit stating no material change in circumstance has occurred since the entry of the order. A trial court's exercise ofdiscretion in issuing an order of protection or denying a request for an order of protection will not be overturned absent aclear abuse of discretion. In re Marriage of Fischer, 228 Ill. App. 3d 482, 489, 592 N.E.2d 604, 608 (1992). "An abuse ofdiscretion occurs only where no reasonable person would take the view adopted by the trial court." Shields v. Fry, 301 Ill.App. 3d 570, 573, 703 N.E.2d 921, 922 (1998).

In the present case, respondent argues the evidence did not suffice to support the extension of the order of protectionbecause the original plenary order did not include sufficient findings. Specifically, respondent concedes he "agreed" to theoriginal plenary order of protection, but he contends he did not "stipulate" to a factual basis of abuse. Respondentapparently concedes the validity of the original order but at the same time argues the order contains insufficient findings forit to be extended.

We reject respondent's interpretation of the initial order. Further, we find no abuse of discretion and presume, as did the trialcourt, the original plenary order of protection was properly entered upon a sufficient factual basis. Here, the trial courtrelied on the original plenary order of protection as the basis for the extension. We acknowledge the written order did notcontain express findings. However, the parties' consent to the original plenary order of protection essentially conceded thefactual basis necessary to support that order. Moreover, evidence of respondent's alleged violation of the original orderlends further evidentiary support for the trial court's determination to extend that order. Accordingly, we find no abuse ofdiscretion by the trial court on this point.

As a final matter, respondent contends the trial court erred in extending the original plenary order of protection at a timewhen that order had expired by its own terms. In support of this contention, respondent cites the fact the extended order ofprotection was entered on October 28, 1998, at 2:20 p.m., and the original plenary order of protection expired that samemorning at 9:20 a.m. We again reject respondent's contention.

Here, petitioner filed her motion to extend prior to the expiration of the original order and the matter was scheduled forhearing on the day of expiration. While a technical argument may be made the original order had expired at the time ofextension, we find the minor lapse of time to be de minimus. We find no error on the part of the trial court in issuing anextended order at this time.

The judgment of the circuit court of Champaign County is affirmed.

Affirmed.

COOK, P.J., and STEIGMANN, J., concur.