*1 RADKE, Radke, KATHRYN On Behalf of Laine Petitioner-Appellee, v. ROSS
RADKE, Respondent-Appellant. Third District No. 3 — 03—0198
Opinion May 14, filed Keene, Ottawa, William appellant. for Christy Meredith, Meredith, Ottawa, Stephens L. & appellee. JUSTICE opinion SLATER delivered the of the court: granted Radke, The trial court the petitioner, Kathryn a Radke, restraining respondent, from abusing, harassing, intimidating interfering the liberty parties’ daughter. appeals, contending that: trial court abused its in granting discretion harassment; because the evidence did support any action to restrict his contact should have been taken under obtaining protec-
existing action rather than dissolution reverse. tion. We
FACTS 12-year- custody parties’ residential granted marriage. of their Radke, the dissolution daughter, following old visitation, the first weekend including granted Ross was extensive Thursday. Tuesday through every month and week from each *2 protection on behalf Kathryn petition for an order of filed things, an 9, Kathryn sought, among other January 2003. Laine on harassing intimidating abusing, Ross from order parte. ex emergency court issued an hearing Laine testified that she petition, on the subsequent At the January She for visitation on 2003. to her father’s house went home, and enjoy time at his spending that she did not informed Ross According Laine. Ross go Kathryn’s to house. to to back she wanted a hospital. and he to take her to insane told her she was Kathryn telephone. tried to call When Laine became afraid and call, ripped telephone Ross off phone tried to make the she her questioned about grounded. and told her that she was When wall, explained Laine “ripped” from phone claim to and he thing all attached one phones were three that “were phone three thing one all Laine later tried to took the out.” her police, or the and each time times to call her mother additional she tried to use. unplugged father Ac- walk back in her mother’s house. Laine later left the house to outside, her Laine, her neld her arms behind cording Ross followed Ross also back, pushed her in the door and her into her room. pushed by moving twice, she contact backward. punch her but avoided tried on her arm as a result of this that she suffered bruise Laine testified incdent. cross-examination, that she screamed Laine testified
On had to curse and this incident. She believed she cursed in ihe him. also kicked Ross to communicate with She scream Ross Additionally, she testified she did so in self-defense. groin, but claimed on her with Ross several she had or cut short visitation missed January day after the 2002 and occasions in December station to make a incident, police her mother to the Laine went no bruises or marks against police her father. The observed complaint protection, Laine she wanted an order why on Laine. When asked again and she to touch responded that she did not want her father She only she see him. him wanted wanted to be able see her father and she did not felt that she had too much visitation with feel welcome at his home. brother, Bryce Radke, testified that he observed a small
bruise on Laine’s arm after she returned from Kathryn visitation. testified that she observed bruise on swelling Laine’s arm and hand. also testified that it was her idea to seek an order protection, begged Laine had her never to send her back to her father. Kathryn admitted that she used the order of temporarily suspend visitation. wife, Radke, Debbie testified that Laine screamed and
cursed at on January 2003. Ross told Laine to room and grounded her from using the computer. Laine then tried to leave her room point, several times. At one Laine ran responded by escorting outside. Ross Laine back to her room hold- ing her arms. Laine kicked escorting Ross while he was her to her room. Debbie also testified that she and Ross had received several e-mails from Laine that contained profanity. son, Williams,
Debbie’s Josh part testified that he observed of this incident. He testified kicked, hit and cursed at Ross. Ross unplugged the telephone room, and told to go to her but he did not strike or kick Laine. prior incident, testified that to the he had allowed Laine to
miss some visits at her request. On he told Laine that he would call the to enforce the visitation if she did not come over. Laine’s mother had done thing year the same earlier when Laine *3 go had refused to back to her history mother’s house. Laine a had being good parent terms only switching one prefer- then ences.
Ross further testified that after Laine upset, arrived she became him, cursed at and he told her to to her room. She came back out of room, told him that she was home and continued to curse at him for several minutes. Ross refused to allow Laine to use the telephone Kathryn. to call Laine then kicked him in groin the punched him in responded by the face. Ross placing his hand on back and pushing hallway Laine’s her down the to her room. Laine continued to leave her room attempt telephone. to use the unplugged telephone Ross the and escorted her back to her room. Ross testified that he did rip off strike Laine. tape-recorded
Ross also testified he the incident. he told After he recording, Laine that was Laine he had hurt her. admitted that audiotape played during hearing, reported but was not report proceedings or admitted into evidence. rebuttal, On Laine testified that previously slapped Ross a present give Day. Debbie because she did not or call her on Mother’s this incident. as a result of lip” a “fat Laine testified that she suffered slapping denied During testimony, his of visita- that issues decision, the trial court stated rendering The court of in the order addressed tion would visitation, correctly not restrict that it would specifically noted to protect, “is of an order of recognizing that found The court changes in visitation.” not to effectuate specific make a witness,” did not but it “basically very a believable testimony that accepted The court physical abuse. returning her mother’s her from force was used physical reasonable says there can be house, that “the statute but it also noted right a parent a has parent. I understand of a child a directions allegations of concluded that “when there’s a child.” The court punish emotional, thing one don’t abuse, physical it be whether parent other or to you deny them access to their think can do is you can’t call punish say them and by phone. you If want to you them thing. But when tell phone, that’s one your friends other or to the parent either their you’re denying them access to The court then under the statute.” police, I think that’s harassment Ross to refrain from protection requiring a entered harassment, abuse, or interference with physical intimidation the order. liberty years from the date of for two
Analysis granting contends that the trial court abused its discretion that he because the evidence did not establish agree. We had harassed Laine. (Act) provides that
The Illinois Domestic Act of 1986 Violence may who have abused protective against persons be entered orders 2002). 60/214(a) (West “Abuse” is ILCS child in their care. See 750 abuse, or intimidation of defined to include by parent. direction of a child child but does not include reasonable (West 2002). 60/103(1) The Act defines “harassment” as 750 ILCS knowing conduct which circumstances; a reasonable under would cause reasonable distress; emotional distress to
person emotional
and does cause
(West 2002).
60/103(7)
person. 750 ILCS
defined
as
The court has broad discretion to decide whether
*4
Lichtenstein,
Act,
App.
263 Ill.
3d
in the
occurred. In re
(1994).
be
266,
decision will not
In this case the trial court
allowing
found that not
Laine to
telephone her mother or the police constituted harassment. Under the
Act, conduct is not
if
it is
purpose that is reasonable under the circumstances. See 750 ILCS 60/
103(7) (West 2002). Was it reasonable for Laine’s father not to allow
her to call her mother after she made it clear that she did not want to
be
wanted to
back to her mother’s home? Laine only
went to her father’s home after he threatened to
call the
enforce visitation.
issue,
Whether this
was wise
clearly
but it
contributed to
atmosphere
ripe for conflict. Under those circum
stances, Ross could have reasonably
allowing
believed that
mother,
call her
perhaps
request
her to come and pick
up,
only exacerbate the
Certainly,
situation.
after Laine screamed and
cursed at her father and kicked him in the groin,
denying
use of
phone
was not
It
justifiable
unreasonable. was also
as “reasonable
child,
direction” of a
a circumstance specifically excluded from the
60/103(1) (West 2002).
definition of abuse under the Act. 750 ILCS
Blitstein,
re Marriage
212 Ill. App. 3d
We
are
that we
not disturbing the trial court’s factual
findings; the court is in the best position to
credibility
evaluate the
People
Kozin,
witnesses.
ex rel. Minteer v.
297 Ill.
Ross also contends that the of should be vacated action to restrict his visitation with Laine should have been existing taken under the action dissolution rather than obtain- ing agree. We primary Domestic Violence Act is to aid victims
of domestic violence and to further violence. 750 ILCS 60/102 (West Jackson, 2002); Wilson v. 312 Ill.
269 procedure (2000). proper not the is Obtaining protection order of an should be Those issues custody issues. resolving child visitation Marriage Act and Dissolution Marriage under the Illinois resolved (West 2002)). (750 Wilson, Ill. 3d seq. et ILCS 5/101 Gordon, Ill. 832, citing Ire re 728 N.E.2d primary Wilson, petitioner’s that the In court found this custody was to obtain visitation seeking protection an order order of vacated the than abuse. We of his child rather misuse by petitioner’s due to the granted the trial court protection Wilson, 312 Ill. App. Act, as insufficient evidence of abuse. as well the order of case, that she obtained admitted Laine also indicated temporarily suspend visitation. protection to her father that she could see protection sought so Domestic Violence Act wanted to see him. The only when she note that such issues. We resolving vehicle for appropriate or contact did not restrict Ross’s visitation protection order of narrowly prohibit the order to Laine. The court drafted liberty or intimidation. interference with Nevertheless, record, Kathryn misused on this we believe that based attempting to alter Ross’s for the the Domestic Violence Act reason, no For that and because we find that visitation with Laine. occurred, of the circuit court and judgment harassment we reverse the vacate the order of
CONCLUSION above, of the circuit judgment For the reasons stated and the order of is vacated. reversed Reversed; order vacated.
HOLDRIDGE, EJ., concurs. McDADE, dissenting:
JUSTICE law, can- applicable case and the reviewing After the facts of this I would affirm his discretion and not find that the trial abused majority I, therefore, from the respectfully dissent the decision. by an abuse the court. opinion, which finds that there was such abused its discretion At whether the court appeal issue in this it, essence, parte an earlier ex converted hearing. The finds evidentiary following that would warrant such by Ross Radke there was court, an action mother, because Laine and her Kath- ryn, improper purpose in seeking original order, the court’s entry of an order aside, harassment must be set even though grounded it was in evidence hearing adduced at full and it rejected any on respondent’s restriction visitation. a cursory
Even reading clearly, the facts in my opinion, acting demonstrates neither Ross nor Laine Radke was reason- ably. girl freely screamed, cursed, admitted that she and kicked father the visitation incident because she wanted to father, home. The letting after such conduct continue without disciplinary months, efforts for several apparently decided to cure problems through all at once the use of threats and intimida- tion. Neither behaving appropriately my view. Irrational conduct of a 12-year-old girl, condoned, while cannot be is easier to *6 understand and explain to than is that her adult father.
Looking only at testimony, he to threatening admitted to call the if Laine did not come for her scheduled visitation on 2003; refusing admitted to to let her use the to call her police; disabling by mother or the admitted to phones discon- necting outlets; them from their wall threatening admitted to he belt; that could hit her if he a wanted because he black and pushing admitted to her hallway throwing down the but denied across the room. you events,
When add Laine’s judge version of the trial which credible, you found to be end with I up conduct that do not believe can fairly Nor, characterized as “reasonable a direction” to child. ac- cepting correctness of the trial court’s assessment of cred- Laine’s ibility, does appear that Ross and gave his new wife due fair or consideration to complaints respect unkindness and lack of when she was their home.
So, does support this the trial court’s by was “harassed” her father? I believe it does. The Illinois Domestic “abuse,” Violence Act protects against physical which includes intimidation. knowing or “Harassment” defined as necessary conduct that to a accomplish reasonable circumstances, under the person would cause a reasonable feel to distress, and person. does cause distress to the ILCS 750 60/103 (West 2002). A presumption rebuttable of emotional distress arises respondent improperly petitioner when a a child from the conceals force, ILCS threatens restraint. 750 60/103 confinement (West 2002). (vi) (v), determination, The court heard all of the evidence and made a which we dispute, cannot that Laine’s was credible. The her father told her allegations that credited her apparently hospital; to take her to and he was she insane mother; he tried to call her her and she frightened this threat calls; that, left she making the her from repeatedly prevented back, her into a door pushed house, held her arms behind he twice, and room; punch that he tried pushed her into her and he incident; this and that on her arm that she suffered bruise occasion, injury lip. to her causing an previous her on a slapped were conclude that these actions person A reasonable could In necessary disciplining accomplish (and did) that denial of particular, the court could conclude necessary or police to call her mother officers was not Additionally, could purpose. person a reasonable (or insane, disconnecting rip- telling Laine that she was conclude out) (or threatening) punch her were ping phones, trying an of- discipline 12-year-old child —even not actions obstreperous fensive and one. sum, person reasonable could conclude that Ross’s actions
In as Peck v. constituted harassment that term defined Act. Cf. (2002); Otten, re Ill. Blitstein, Accordingly, 212 Ill. entering find that trial court not abuse discretion against rejected has Blit the order Ross. in the domestic conflict participants stein as irrelevant because the wife, daughter. that case were a not a father and While husband certainly basis, factually distinguishable the case is on that does necessarily The refusal principle apply. follow that its basic family protec allow to a frightened member —even a child—access tor, as particularly parent, reasonably the other could be characterized *7 statute, I do not believe harassment under the domestic violence and an of to that effect constitutes abuse the decision the trial of discretion. entry challenge plenary
The has asserted to the of the order are, me, It is troubling. more presents questions of testimony protec- clear from own that Laine wanted the order obligation future to have visita- tion as an instrument remove contrast, go. tion in her she wanted to some father’s home unless protective the interim Kathryn testified that she obtained and used its the date of separated order to Laine and her father between keep credited, testimony that she entry It if her appears, and in the seeking period of the conduct involved cooling-off because Nonetheless, of the domestic incident, not end her use to visitation. than appropriate violence that end was more statute its goal use further the of her daughter. judge firmly quite properly found that the petitioners motives both created an abuse the statute. major
It also of concern that orders of protection are confronta- tional and divisive in nature and they should not commonly be routinely employed involving in matters discipline of children. Having that, however, said certainly bemay hope- situations — fully rare —where the use of such an order would be appropriate.
Turning specifics case, to the that, if appears to me we accept the credibility determination of judge, the trial the court’s actual conclusion that there was plenary harassment that the order was warranted could be not found to be either unreasonable or an abuse of majority argues discretion. The the trial court implicitly rejected some of testimony because it not make an explicit finding however, of physical appears me, abuse. It judge, by finding girl’s light allegations, of her at least credited implicitly allegations. those any rate, At require statute that the trial court find both physical abuse and cognizable harassment —the forms abuse justifying are stated in the disjunctive.
The plenary also asserts that the be order should not af- firmed petitioners’ wrongful seeking the ex parte agree interim order of I position would with that if merely court had petitioners’ converted order based on the original representations. not, full-fledged It did It however. evidentiary hearing and made decision based all of the and spectators. inject relevant actors It is unfortunate to of protection into parents relations between and children. I however, suggest, would that it be irresponsible for the trial court, in the face of its belief that the posed conduct issue some recur, threat the child if allowed to continue to refuse to order protection for her because the interim order was improperly motivated. any impact right order does have of the father previously enjoyed give the extensive visitation he has nor does ability spend to pick and choose whether or when she will time enjoin with her father in his home. It also does not Ross from inap- conduct to his respect daughter that would propriate even without the order. order,
In the response trial court’s I see concerned and restrained situation; family to volatile I do not see an conduct an uncontrolled abuse of affirm. discretion. would