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Mowen v. Holland
State: Illinois
Court: 4th District Appellate
Docket No: 4-02-0507 Rel
Case Date: 01/15/2003

NO. 4-02-0507

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT



BRUCE L. MOWEN,
                      Plaintiff-Appellee,
                      v.
CHRISTINE E. HOLLAND, f/k/a CHRISTINE 
E. BROWN,
                      Defendant-Appellant,
                      and
RUSSELL HOLLAND,
                      Defendant,
                      and
JOYCE BROWN and BERNICE KLINEFELTER,
                      Intervenors.
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Appeal from
Circuit Court of
Adams
County
No. 02OP74





Honorable
David K. Slocum
,
Judge Presiding.




JUSTICE McCULLOUGH delivered the opinion of the court:

Defendant, Christine E. Holland, f/k/a Christine E.Brown, appeals from a plenary order of protection entered by thecircuit court of Brown County (No. 02-OP-3) for the protection ofJessica L. Mowen (born December 30, 1995), the daughter ofdefendant and plaintiff, Bruce L. Mowen. The circuit court ofBrown County, on its own motion, at the time of entering theplenary order, transferred this case to Adams County to beconsolidated with Adams County case No. 97-F-45. Christine'shusband, Russell Holland, also a defendant in this case, andintervenors Joyce Brown and Bernice Klinefelter, the maternalgrandmother and great-grandmother of Jessica, are not parties tothis appeal. The issues on appeal are whether (1) the trial courtabused its discretion by admitting into evidence hearsay statementsof a caseworker for the Department of Children and Family Services(DCFS), (2) the trial court allowed improper impeachment ofdefendant, (3) evidence was sufficient to support the imposition ofthe plenary order of protection, and (4) the trial court failed tomake findings of fact in compliance with the controlling statute. We affirm.

On February 22, 2002, plaintiff filed in the circuitcourt of Brown County a petition pursuant to the Illinois DomesticViolence Act of 1986 (Act) (750 ILCS 60/101 through 401 (West2000)). All proceedings related to this appeal were conducted inBrown County (Brown County case No. 02-OP-3), concluding with thecircuit court of Brown County denying defendant's motion toreconsider on April 18, 2002. The cause was then transferred toand filed in the circuit court of Adams County on April 22, 2002(Adams County case No. 02-OP-74). Thereafter, on May 17, 2002,defendant filed her notice of appeal in Adams County.

The petition sought emergency and plenary orders (1)directing Russell Holland and defendant not to strike, harass, orabuse Jessica; (2) placing the physical care and custody of Jessicain plaintiff; (3) preventing defendants from removing the childfrom the state or concealing her from plaintiff; and (4) orderingRussell to stay at least 1,000 feet away from Jessica. Theexhibits attached to the petition show that there had been disputesregarding custody and visitation in a paternity proceeding (Mowenv. Brown, Adams County case No. 97-F-45) involving defendant makingunfounded reports of plaintiff abusing Jessica, and plaintiff'sbelief that Russell faced criminal charges of sexual offensesperpetrated on Russell's daughter, N.L.M. (born August 31, 1999). The trial court entered the emergency order on February 22, 2002. That order (1) restrained and prohibited defendants from harassing,interfering with personal liberty, intimidating, physicallyabusing, wilfully depriving, neglecting, exploiting, or stalkingJessica; (2) ordered them to stay away from Jessica; (3) grantedplaintiff physical care and "possession" of Jessica; (4) ordereddefendants not to remove the child from plaintiff; (5) directedthat there be no visitation until further order of the court; (6)prohibited defendants from removing the child from the state andconcealing her from plaintiff; (7) enjoined Russell from beingwithin 1,000 feet of Jessica; and (8) authorized the temporaryplacement of Jessica in a school other than her current school. The emergency order was set to expire at 3:30 p.m. on March 15,2002, and a hearing for an extension of the order was scheduled for10 a.m. on March 8, 2002.

At the hearing, the trial court heard the testimony ofdefendant, plaintiff, and plaintiff's wife Robin Mowen. Russellinvoked the fifth-amendment privilege against self-incrimination(U.S. Const., amend. V) and declined to testify. At the conclusionof the hearing, the trial court entered an order continuing theemergency order in full force and effect as a plenary order untilFebruary 22, 2003, but modified the order to allow defendant, herparents, and her grandparents to have visitation for eight hours onalternate Saturdays, with visitation to be arranged and supervisedby DCFS.

Defendant, called as an adverse witness, testified thatRussell had recently been in jail on allegations of sexual assaultagainst his (Russell's) daughter, who had been living with them. Defendant was familiar with DCFS caseworker Beth Wienhoff. Wienhoff had contacted defendant about the situation. Wienhofftold defendant that Russell and his daughter were not to be in thesame household. The hearsay objection interposed by defendant'scounsel was overruled. According to defendant, Russell wasarrested in the last week of February. Jessica was living in theirhouse at that time. Defendant called Robin Mowen to arrange earlyvisitation so defendant could bond Russell out of jail. Acondition of the bond was that Russell have no contact with hisdaughter or Jessica. She bonded him out of jail on February 28,2002. At the time of the hearing, Russell was living in themarital home, and defendant was staying with her parents. AfterRussell was released from jail, Wienhoff informed defendant thatshe was going to mail defendant a safety plan. Defendant had notreceived it, and Wienhoff did not tell her of its contents. Similarly, plaintiff was allowed to testify, over defendant'shearsay objection, that Wienhoff provided him with the information,on the basis of which he sought the order of protection, and toldhim to seek the order of protection.

We initially address the propriety of the trial court'sruling on defendant's hearsay objection. The determination of theadmissibility of evidence rests in the sound discretion of thetrial court, and that determination will not be reversed on appealabsent an abuse of discretion. Leonardi v. Loyola University ofChicago, 168 Ill. 2d 83, 92, 658 N.E.2d 450, 454-55 (1995). Unlessit falls within a recognized exception to the rule, hearsay,defined as an out-of-court statement offered to prove the truth ofthe matter asserted, is not admissible. Pavlik v. Wal-Mart Stores,Inc., 323 Ill. App. 3d 1060, 1064, 753 N.E.2d 1007, 1011 (2001).

In this case, plaintiff argued in the trial court, as hedoes in this court, that the statement of Wienhoff to defendant wasnot offered to prove the matter asserted by Wienhoff, but toestablish that defendant had notice from DCFS of the no-contactrequirement. Plaintiff cites no legal authority to support hiscontention. See Official Reports Advance Sheet No. 21 (October 17,2001), Rs. 341(e)(7), (f), eff. October 1, 2001.

By definition, an out-of-court statement offered for apurpose other than for the truth of the matter asserted is nothearsay. People v. Reed, 108 Ill. App. 3d 984, 989, 439 N.E.2d1277, 1280 (1982). See Halleck v. Coastal Building MaintenanceCo., 269 Ill. App. 3d 887, 891, 647 N.E.2d 618, 623 (1995). Anout-of-court statement may be offered to show personal knowledgeotherwise established. See M. Graham, Cleary & Graham's Handbookof Illinois Evidence

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