Whitten v. Whitten
State: Illinois
Court: 3rd District Appellate
Docket No: 3-97-0417
Case Date: 10/01/1997
No. 3--97--0417
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
PAMELA A. WHITTEN, ) Appeal from the Circuit Court
) of the 12th Judicial Circuit,
Petitioner-Appellee, ) Will County, Illinois,
)
v. ) No. 97--OP--3092
)
MICHAEL C. WHITTEN, ) Honorable
) Gilbert L. Niznik,
Respondent-Appellant. ) Judge, Presiding.
________________________________________________________________
JUSTICE SLATER delivered the opinion of the court:
________________________________________________________________
On March 3, 1997, petitioner, Pamela A. Whitten, filed a
petition for an emergency order of protection alleging that
respondent, Michael C. Whitten, had physically abused their minor
son, Tedmond Whitten, during regular visitation pursuant to the
divorce judgment entered between the parties. After the ex-parte
hearing, the court entered an emergency order of protection on
March 3, 1997, which in pertinent part prohibited abuse and
suspended visitation. On March 5, 1997, respondent was served
with a summons notifying him of the order of protection. He
filed a motion for rehearing, an answer and an affirmative
defense. The motion for rehearing was argued on March 14, 1997,
and on March 19, 1997, the court denied respondent's motion and
began hearing testimony. On March 24, 1997, petitioner rested
and respondent filed a motion for a directed finding. On April
9, 1997, the court denied the motion for a directed finding but
ordered the respondent's full rights of visitation restored as
per the original judgment for divorce entered between the
parties. On April 23, 1997, the court entered an interim order
of protection which preserved respondent's full visitation rights
per the divorce judgment but prohibited physical abuse of the
minor son. The interim order was to expire by its own terms on
May 23, 1997. On May 23, 1997, the court extended the interim
order until May 30, 1997, at which time it did expire.
Respondent filed a notice of interlocutory appeal on May 23,
1997.
On appeal, respondent alleges that: (1) the emergency order
of protection fails procedural due process because of lack of
proper notice, and (2) the interim order of protection, which
preserved full visitation rights but prohibited abuse, was
unnecessary because respondent's discipline of the minor child
was reasonable.
FACTS
During the weekend of Saturday, March 1, and Sunday, March
2, 1997, Tedmond Whitten, the 10-year-old son of petitioner and
respondent, was staying with respondent as part of the regular
visitation per the divorce judgment. Ashley Whitten,
respondent's 12-year-old daughter from his first marriage, was
also staying with respondent. The children stayed out very late
Saturday night at a relative's house and did not get to bed until
about 1:30 a.m. on Sunday morning. At approximately 9:30 a.m. on
the morning of March 2, 1997, respondent attempted to wake
Tedmond so that Tedmond could get ready for his soccer game,
which was at 10:45 a.m. that morning. Despite several requests
from respondent, Tedmond stated he was tired and refused to get
up.
According to respondent, the minor "completely and totally
defied my parental authority over him." Respondent then
proceeded to strike Tedmond with a belt approximately four to six
times. Respondent testified that he intended to strike Tedmond
on the buttocks region only, but since Tedmond struggled, the
minor child was struck on areas other than the buttocks.
Respondent testified that the spanking was reasonable and
administered for the sole purpose of disciplining his son
pursuant to his parental obligations, and that at no time was he
in a rage or out of control.
Tedmond's account of the spanking differed from that of the
respondent. Tedmond testified that after he refused respondent's
requests to get up, respondent grabbed him by his nightgown and
dragged him to the floor, ripping the nightgown. Respondent then
grabbed him by the arm and struck him with a belt approximately
eight times. When Tedmond struggled, respondent twisted
Tedmond's arm and flung him on the bed. Respondent then got on
top of Tedmond on the bed and knelt on Tedmond's legs, causing
pain to the minor child. Respondent continued to strike Tedmond,
making contact with Tedmond approximately ten more times. The
photographs that were in evidence showed bruises on various parts
of Tedmond's body, and Tedmond testified that it hurt on his
legs, his upper and lower back, his left arm and his shoulder
blades. Tedmond testified that he did not receive any medical
attention for his bruises. On March 21, 1997, 19 days after the
spanking, Tedmond testified that most of the bruises had healed,
with the exception of one bruise on his right thigh which was
exhibited in court and found to be between 1/4 to 1/2 inch in
diameter.
Ashley Whitten testified that she slept in the same room as
Tedmond and that respondent asked her to leave the room prior to
striking Tedmond. Although she did not see the spanking, she
heard nine or ten slaps accompanied by Tedmond's screams. After
the spanking, Ashley testified that respondent came downstairs
with a belt in his hand and a fearsome and angry expression on
his face. She also testified that Tedmond showed her a welt on
his leg.
Mark A. Bickle, Tedmond's soccer coach, testified that on
the morning of March 2, 1997, he saw Tedmond curled up in a
corner. Tedmond was crying and very upset, and he told the coach
he had been spanked for not wanting to get up. Tedmond showed
Mr. Bickle the red mark on his thigh.
Petitioner testified as to the foundational elements of the
photographs that she took of Tedmond's bruises. She testified
the photographs were taken at approximately 12:15 p.m. on March
2, 1997, the day of the spanking.
ANALYSIS
A threshold determination is whether this court has
jurisdiction to hear respondent's interlocutory appeal. A
reviewing court has the obligation to examine its jurisdiction
and dismiss the appeal if the requisite jurisdiction is lacking.
Shanklin v. Hutzler, 277 Ill. App. 3d 94, 660 N.E.2d 103 (1995).
Respondent claims that jurisdiction vests in this court pursuant
to Illinois Supreme Court Rule 307(a)(1) governing interlocutory
appeals. 155 Ill. 2d R. 307. Petitioner argues, however, that
respondent's appeal is moot because the interim order of
protection expired of its own terms on May 30, 1997.
A case on appeal becomes moot when the issues involved in
the circuit court no longer exist because events occurring after
the filing of the appeal make it impossible for the appellate
court to grant effective relief. In re R.V., 288 Ill. App. 3d
860, 681 N.E.2d 660 (1997), citing In re A Minor, 127 Ill. 2d
247, 537 N.E.2d 292 (1989). Here, the interim order of
protection was set to expire of its own terms on May 23, 1997,
but was extended by court order until May 30, 1997. On May 30,
1997, the court refused to further extend the order and it thus
expired.
Even if we found that the expiration of the order of
protection rendered this appeal formally moot, the issues raised
by respondent may still be reviewed under one of the exceptions
to the mootness doctrine. A case that is considered moot may
still be subject to review if it involves a question of great
public interest. In re R.V., 288 Ill. App. 3d 860, 681 N.E.2d
660, citing In re A Minor, 127 Ill. 2d 247, 537 N.E.2d 292. In
other words, if (1) the moot question is public in nature, (2) it
is desirable to provide an authoritative determination so as to
offer guidance for public officers, and (3) it is likely that the
question will reappear, then it is incumbent upon the reviewing
court to review the moot question on its merits. In re R.V., 288
Ill. App. 3d 860, 681 N.E.2d 660, citing In re A Minor, 127 Ill.
2d 247, 537 N.E.2d 292.
In the instant case, the interests involved are of public
concern. The Illinois Domestic Violence Act (the Act) addresses
a grave societal problem and it is of public interest that the
underlying purposes of the Act be achieved. 750 ILCS
60/217(a)(3) (West 1996). This can only be accomplished if
courts properly apply the requirements of the Act. Given the
public interest in protecting victims of domestic violence, and
the likelihood that this question will reappear, we find it
desirable to clarify and provide an authoritative determination
of what the Act requires prior to issuance of an ex-parte
emergency order of protection. Having decided that this matter
is properly before this court on appeal, we now address the
merits of respondent's contentions.
Respondent first contends that the emergency order of
protection failed to meet the procedural due process requirements
of the Illinois Domestic Violence Act for lack of proper notice.
750 ILCS 60/217(a)(3) (West 1996). Specifically, he contends
that petitioner failed to file affidavits showing good cause why
the emergency order should issue without prior notice to
respondent.
The Illinois Domestic Violence Act provides for the issuance
of emergency orders of protection if petitioner satisfies certain
requirements. Section 217(a) of the Act provides in pertinent
part that:
"An emergency order of protection shall issue
if petitioner satisfies the requirements of
this subsection for one or more of the
requested remedies. For each remedy
requested, petitioner shall establish that
*** there is good cause to grant the remedy,
regardless of prior service of process or of
notice upon the respondent, because *** the
harm which that remedy is intended to prevent
would be likely to occur if the respondent
were given any prior notice, or greater
notice than was actually given, of the
petitioner's efforts to obtain judicial
relief." (Emphasis added.) 750 ILCS
60/217(a)(3) (West 1996).
The plain language of the Act does not require that actual
affidavits be attached to the petition. Instead, the Act
requires that the petitioner show good cause to grant the remedy
without prior notice to respondent. The manner in which good
cause can be shown is not specified in the Act.
Furthermore, in order to promote the underlying purposes of
the Illinois Domestic Violence Act, the legislature provided in
section 102 that the Act shall be liberally construed and
applied. 750 ILCS 60/102 (West 1996). Included among the
purposes of the Act is recognition that "the legal system has
ineffectively dealt with family violence in the past," (750 ILCS
60/102(3) (West 1996)), and to "support the efforts of victims of
domestic violence to avoid further abuse by promptly entering and
diligently enforcing court orders which prohibit abuse, and when
necessary, reduce the abuser's access to the victim." (750 ILCS
60/102(4) (West 1996)).
Respondent cites Sanders v. Shephard, 185 Ill. App. 3d 719,
541 N.E.2d 1150 (1989), for the proposition that procedural due
process in the Act requires "affidavits that demonstrate exigent
circumstances justifying entry of an emergency order without
prior notice." Sanders, 185 Ill. App. 3d at 727, 541 N.E.2d at
1155. We agree that petitioner must provide proof of exigent
circumstances that warrant the issuance of an emergency order
without prior notice to respondent. We disagree, however, with
the undue emphasis placed by respondent on petitioner's failure
to attach a separate affidavit when exigent circumstances were
evident from the sworn allegations in the verified petition. We
believe the Sanders court did not intend this result and properly
emphasized the fact that the showing of exigent circumstances was
the critical factor, and not the manner in which good cause was
shown. "As noted above, procedural due process with respect to
the issuance of an emergency protection order does not require
prior notice to a respondent where there is a showing of exigent
circumstances." (Emphasis added.) Sanders, 185 Ill. App. 3d at
728, 541 N.E.2d at 1156.
This court's independent research has disclosed two other
cases addressing the petitioner's burden of showing good cause to
justify the issuance of an ex-parte emergency order of
protection. See In re Marriage of Los, 229 Ill. App. 3d 357, 593
N.E.2d 126 (1992) (the emergency order was not based on a showing
of exigent circumstances, and further, the petition was not
supported by an affidavit demonstrating exigent circumstances);
In re Marriage of Gordon, 233 Ill. App. 3d 617, 599 N.E.2d 1151
(1992) (neither the affidavit nor the proof demonstrated exigent
circumstances). These cases properly placed the emphasis on the
showing of exigent circumstances, rather than the manner in which
good cause was shown.
Here, petitioner and her minor son, Tedmond, appeared in
court on March 3, 1997, with photographs of the bruises and welts
on Tedmond's body. Petitioner's sworn allegations of the abusive
incident are contained in the petition, and petitioner's
signature of verification attests to the truth of the statements
contained in the petition. Petitioner also stated that she
feared respondent would retaliate against the child and/or her if
he were given notice.
Given legislative direction to liberally construe the Act,
and the fact that affidavits are not specifically required by the
Act, we find that petitioner's verified petition, sworn testimony
and pictures were sufficient proof of exigent circumstances
justifying the issuance of the emergency order of protection
without prior notice to respondent. Petitioner's failure to
attach a separate affidavit to her verified petition did not
violate respondent's procedural due process rights. Petitioner's
showing of good cause was attested to and verified in her
petition, and the court found sufficient basis to issue an
emergency order of protection.
Respondent next contends that the circuit court erred in
entering the interim order of protection on April 23, 1997, which
preserved full visitation rights but prohibited physical abuse.
Specifically, respondent contends that his conduct was reasonable
and not abusive because (1) the spanking was administered for
disciplinary reasons, (2) his conduct lacked viciousness, and (3)
there is no evidence of irreparable harm or continued abuse.
Section 103 of the Illinois Domestic Violence Act defines
abuse as follows:
"'Abuse' means physical abuse, harassment,
intimidation of a dependent, interference
with personal liberty or willful deprivation
but does not include reasonable direction of
a minor by a parent or person in loco
parentis." 750 ILCS 60/103(1) (West 1996).
It is axiomatic that this court will not disturb the lower
court's finding that respondent's conduct was abusive unless the
court clearly abused its discretion. In considering whether the
court abused its discretion, the question is not whether a
reviewing court agrees with the trial court. In re Marriage of
Hall, 278 Ill. App. 3d 782, 663 N.E.2d 430 (1996), citing In re
Marriage of Moore, 251 Ill. App. 3d 41, 621 N.E.2d 239 (1993).
Instead, an abuse of discretion occurs only where no reasonable
person would take the view adopted by the court. Hall, 278 Ill.
App. 3d 782, 663 N.E.2d 430, citing In re Marriage of Click, 169
Ill. App. 3d 48, 523 N.E.2d 169 (1988).
In the present case, the circuit court weighed the evidence
and the credibility of witnesses. Specifically, the court saw
the color photographs of the bruises and welts on Tedmond's body;
heard the testimony of respondent, who testified that he did in
fact repeatedly strike Tedmond with a belt and that under a
similar set of circumstances he would strike Tedmond again with a
belt; heard the testimony of Tedmond, who described the
viciousness of the beating; heard Ashley's corroborating
testimony that respondent seemed angry and fearsome after the
beating and that she saw the welt on Tedmond's leg; heard the
testimony of the soccer coach, who also testified to seeing a red
mark on Tedmond's thigh. Taken together, this was sufficient
evidence allowing the court to find that respondent's conduct
exceeded reasonable discipline of a minor child and was in fact
physical abuse as defined in the Illinois Domestic Violence Act.
We conclude that the court did not abuse its discretion in
entering the interim order of protection.
For the reasons stated above, the judgment of the circuit
court of Will County is affirmed.
Affirmed.
LYTTON, P.J., and HOMER, J., concur.
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