No. 3--01--0356

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

JUSTICE HOMER delivered the opinion of the court:

The defendant, Kevin Otten, appeals from the entry of aplenary order of protection against him obtained by his ex-wife,Belinda Peck, on behalf of their minor son, Cory. On appeal, heargues that the trial court's finding of "abuse" was against themanifest weight of the evidence and an abuse of the court'sdiscretion. We affirm in part, reverse in part and remand.

The parties were divorced in August 1995. During theirmarriage, they had one son, Cory, born in December of 1988. Atthe time of their divorce, the parties agreed to joint custody ofCory with Belinda being the residential parent. A stipulatedmodification order was entered in March 2000 in which Kevin andBelinda agreed to joint custody of Cory with Kevin being theresidential parent.

On March 12, 2001, Belinda filed a petition for an order ofprotection on behalf of Cory, alleging that Kevin had abusedCory. Specifically, the petition claimed that: (1) Kevin hasbeen coming home drunk and destroying Cory's personal belongings;and (2) Kevin grabbed Cory after he had been drinking. Anemergency order of protection was granted that same day.

A plenary order of protection hearing was held onApril 2, 2001. According to the bystander's report, the evidenceat the hearing showed that on March 8, Kevin told Cory that hewas going out at approximately 8 p.m. and instructed Cory toclean the house and finish his homework. Kevin returned homearound 12:30 a.m. He had been drinking. When he arrived home,he discovered that Cory had not cleaned the house or completedhis homework. Kevin awakened Cory. In his anger, Kevin grabbeda pool cue that he had given Cory and broke it. He told Corythat if he did not have time to do his homework and thehousework, he did not need to be playing pool.

Cory testified that his father would often not come homefrom work but instead would go to the tavern right after work.Cory also stated that his father "would always wake him up whenhe came home from drinking and would break things and throwthings."

The trial court found that Kevin committed abuse and entereda plenary order of protection prohibiting Kevin from having anycontact with Cory. The order did not specify a termination date.

Initially, we note that an appellee's brief was not filed inthis case. However, since the record is simple and the issue canbe decided without an appellee's brief, we will address Kevin'sissue on the merits. See First Capitol Mortgage Corp. v.Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493,495 (1976).

On appeal, Kevin argues that the protective order was notsupported by the evidence or, in the alternative, was an abuse ofthe trial court's discretion.

Although there is some support for utilizing the manifestweight standard of review, most appellate courts review findingsof abuse under an abuse of discretion standard. Wilson v.Jackson, 312 Ill. App. 3d 1156, 1165, 728 N.E.2d 832, 839 (2000). An abuse of discretion occurs when no reasonable person wouldtake the view adopted by the court. Wilson, 312 Ill. App. 3d at1165, 728 N.E.2d at 839.

The Illinois Domestic Violence Act of 1986 (Act) (750 ILCS60/101 et seq. (West 2000)) provides that protective orders maybe entered against persons who have abused a minor child in theircare. 750 ILCS 60/201(b)(i) (West 2000). The Act's definitionof "abuse" includes physical abuse, harassment, or intimidationof a minor child but does not include the "reasonable directionof a minor child by a parent." 750 ILCS 60/103(1) (West 2000).

Following our careful review, we find that the trial courtdid not abuse its discretion in finding that Kevin's conductconstituted "abuse." We believe that a reasonable person couldconclude that Kevin's treatment of Cory was "abuse" because itconstituted "harassment" as defined by the Act.

"Harassment" is defined as "knowing conduct which is notnecessary to accomplish a purpose that is reasonable under thecircumstances; would cause a reasonable person emotionaldistress; and does cause emotional distress" to the child. 750ILCS 60/103(7) (West 2000). We conclude that Kevin's actionswere unnecessary and of such a nature to cause a reasonableperson to feel emotional distress and did in fact cause 12-yearold Cory to feel emotional distress.

Significantly, the evidence showed that this was not anisolated incident. The bystander's report indicates that Corystated that his father "would always wake him up when he camehome from drinking and would break things and throw things." Such conduct is sufficient to justify a finding of abuse.

Even though there is no indication that Kevin's actionscreated an immediate risk of physical harm to Cory, they stillconstituted "abuse." There need not be any physical acts ofviolence in order for actions to constitute "harassment" underthe Act. In re Marriage of Healy, 263 Ill. App. 3d 596, 599-600,635 N.E.2d 666, 669 (1994). Consequently, we affirm the trialcourt's finding of abuse and hold that the trial court properlyissued a plenary order under the Act. 750 ILCS 60/214(a) (West2000).

However, we conclude that the trial court abused itsdiscretion by entering a plenary order without a termination datethat prohibited Kevin from having any contact with his son. Section 220 of the Act provides that a plenary order ofprotection shall be valid for a fixed period of time, not toexceed two years. 750 ILCS 60/220 (West 2000). When a courtdoes not state a termination date, the order automaticallyexpires in two years. Gasaway v. Gasaway, 246 Ill. App. 3d 531,537, 616 N.E.2d 610, 614 (1993). Under the circumstances here,where Kevin is completely deprived of any contact with his sonfor two years, we conclude that the trial court should have set areasonable limit on the duration of the order or fashioned a lesssevere remedy that would protect Cory while still allowing Kevinto retain some kind of relationship with his son.

Section 214(b) of the Act provides remedies that can beincluded in an order of protection, such as counseling andvisitation. 750 ILCS 60/214(b) (West 2000). We remand so thatthe trial court can issue an order of protection with appropriateconditions that will not deprive Kevin of all contact with hisson.

For the foregoing reasons, the judgment of the circuit courtof Peoria County is affirmed in part, reversed in part andremanded.

Affirmed in part, reversed in part and remanded.

BRESLIN, J., concurred.

JUSTICE HOLDRIDGE, dissenting:

The majority's attempt to justify an order of protectionagainst Kevin evokes the observation of Professor Harold Hill inthe popular musical, The Music Man: "We've got trouble--righthere in River City--with a capital T--and that rhymes with P--and that stands for Pool!" The evidence of record does notsupport the majority's finding that Kevin committed abuse byharassment when he broke Cory's pool cue.

First, I believe Kevin's conduct falls within the statutoryexception for "reasonable direction of a minor child by aparent." 750 ILCS 60/103(1) (West 2000). Kevin was providingdirection when he awakened Cory and broke the pool cue. Theobject of his action was to instill in Cory the importance ofhomework and household chores vis-a-vis recreational activities. There is no evidence that he struck, or even touched, Cory. Hisaction reflects a desire to teach an important lesson in amemorable manner without causing harm--arguably a less expensivelesson than enrolling Cory in a community band! The action wasreasonable.

Second, the statutory definition of "harassment" requiresconduct that "would cause a reasonable person emotionaldistress[,] and does cause emotional distress to the petitioner." 750 ILCS 60/103(7) (West 2000). I seriously question whetherKevin's conduct would cause a reasonable person to sufferemotional distress. In any event, however, the record containsabsolutely no evidence that Cory actually suffered emotionaldistress.

The majority relies essentially on its own conclusorystatements to support its contrary finding. Indeed, the majorityonly musters one evidentiary fact in its analysis--Cory'sstatement that Kevin "would always wake him up when he came homefrom drinking and would break things and throw things." Thatfact does not even address how Cory felt about Kevin's conduct. How then can the majority conclude that Cory was emotionallydistressed? The conclusion is wholly unsubstantiated by theevidence of record.

Regardless of how one personally feels about Kevin'sconduct, he should not be subjected to an order of protectionunless the State proves every element of its case. Since theState failed to do so here, I respectfully dissent.