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06/22/89 Norell Sanders, v. O.D. Shephard

June 22, 1989

NORELL SANDERS, PETITIONER-APPELLEE

v.

O.D. SHEPHARD, A/K/A ODELL SHEPHARD, RESPONDENT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

541 N.E.2d 1150, 185 Ill. App. 3d 719, 133 Ill. Dec. 712

Appeal from the Circuit Court of Cook County; the Hon. Martin Brodkin, Judge, presiding. 1989.IL.963

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. JIGANTI, P.J., and LINN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Sanders filed a civil petition seeking both emergency and plenary protection orders under the Illinois Domestic Violence Act on October 2, 1987. In support of her petition, Sanders stated in an affidavit that Shephard had telephoned her from prison and repeated prior threats to kill Sanders or do bodily harm to both Sanders and Deborah upon Shephard's release from prison. Sanders further stated in her affidavit that she believed Shephard would make arrangements to further conceal Deborah and destroy evidence of her whereabouts if Sanders were required to notify Shephard prior to attempting to obtain the emergency protection order.

On the basis of this petition and supporting affidavit, the trial court issued an emergency ex parte order of protection. The order directed Shephard not to strike, threaten, harass, or interfere with the personal liberty of Sanders or her family. It also ordered Shephard to initiate no contact whatsoever with Sanders. The trial court's order directed Shephard to appear in court on October 9, 1987, with the minor child, Deborah. It further noted, in bold, large print, "Willful violation of any provisions of this order constitutes contempt of court and may further result in fine or imprisonment." The emergency order was set to expire by its own terms in two weeks. Copies of the summons and order were mailed to Shephard in prison by both direct and certified mail the same day the emergency order was entered.

The day following the court's entry of the emergency order, a court-appointed special process server attempted to serve Shephard with summons and a certified copy of the emergency order. Shephard refused to take these documents from the special process server, and the process server orally informed Shephard of the full contents of the summons and the emergency order, including the court's order that he appear in court on October 9 with Deborah.

On October 9, 1987, Shephard appeared in court without an attorney. He did not bring Deborah to court on that day or explain her absence from court. The transcript reflects that on that day Sanders presented to the court a verified petition for rule to show cause why Shephard should not be held in contempt of court for failure to produce the child, although Sanders' verified petition does not appear in the record upon review. Based upon Sanders' petition for a rule to show cause, the court held a contempt hearing instanter. Sanders testified that Shephard took Deborah from her in September 1984 and that Sanders had not seen the child since that time. An Illinois State Police officer testified that investigation revealed the child had not been seen since October 1984, and that Shephard was the last person seen with the child at that time.

Shephard requested that counsel be appointed to represent him at the contempt hearing. The court declined to do so, explaining to Shephard that the matter was a civil proceeding and that he was entitled to appointed counsel only in criminal proceedings. The court suggested that Shephard could later obtain counsel if he should choose to do so and that any contempt order entered that day would then be vacated. Under examination by the court, Shephard testified that he returned Deborah to Sanders in December 1984. Shephard also attempted to cross-examine Sanders, but his questions pertained to matters irrelevant to the proceedings. Sanders testified that Shephard had not returned the child to her.

Following this testimony, the trial court held Shephard in contempt of court for violating the October 9, 1987, order to produce Deborah. The court ordered Shephard imprisoned in Cook County jail for six months or until Shephard "[purged] himself of contempt by producing the minor child Deborah Sanders." The court's order recited that it had been entered pursuant to hearing on Sanders' "verified petition for rule to show cause" and that Shephard "appeared pro se." While Shephard was present in court, he was informed that a hearing date of October 16, 1987, was set on Sanders' petition for a plenary order of protection. Shephard was also handed a copy of Sanders' petition for the protection orders and a copy of the court's emergency, ex parte order of protection. A notice of hearing was sent to Shephard at Cook County jail by certified mail on October 14, 1987.

The record bears no indication that Shephard requested to be brought to court or that the court ordered Shephard returned from jail for the scheduled October 16, 1987, hearing on Sanders' request for a plenary order of protection, and no attorney filed an appearance on Shephard's behalf prior thereto. The plenary protection hearing was held in Shephard's absence. The court inquired of Sanders' counsel whether Shephard had committed any additional acts in violation of the court's emergency protection order. In response, counsel informed the court, and Sanders confirmed, that Sanders had received a telephone call from an unnamed woman. This caller informed Sanders that if she wanted to see Deborah alive, Sanders should tell the trial court at the plenary hearing that she "had been lying about everything." The court determined that it would not "sanction" Shephard at that time for this alleged violation of the court's emergency protection order. On October 16, 1987, the court entered a plenary protection order which inter alia directed Shephard to immediately return the minor child to Sanders. The plenary order was set to expire by its own terms in two years. A certified copy of the plenary protection order was personally served upon Shephard at Cook County jail by a deputy sheriff on October 23, 1987.

A few weeks later, on November 2, 1987, counsel filed an appearance on behalf of Shephard and presented to the trial court a petition to vacate the October 16, 1987, contempt order and release Shephard from jail. Shephard's counsel also filed a motion to declare unconstitutional certain provisions of the Illinois Domestic Violence Act. On the same day, Sanders filed a verified petition for another rule to show cause, and a copy thereof was given to Shephard's attorney. The court issued the rule and set November 19, 1987, for hearing on the rule and on Shephard's pleadings.

At the hearing on the parties' motions, held on November 19, 1987, the court first considered Sanders' petition for a rule to show cause. At this time, Sanders again presented her testimony and the testimony of family members and investigating police officers to the effect that Shephard had taken Deborah from Sanders in September 1984, was the last person seen with the child in October 1984, and had not returned the child to Sanders at any date following September 1984. Shephard, represented by counsel, testified on his own behalf that he had returned the child to Sanders in December 1984.

The trial court determined that Shephard "knows where the child is and was and is the last person to be seen with her." The court found that Shephard's "proffered explanation that he returned the child to [Sanders] in December, 1984, is not credible and is therefore unworthy of belief." The court found Shephard guilty of contempt for failure to comply with the October 16, 1987, protective order to produce the child and ordered Shephard incarcerated in Cook County jail for six months "or until such time as [he] purges himself of contempt by returning Deborah Sanders" to her mother. The trial court also vacated its October 9 contempt order, but denied Shephard's motion to declare unconstitutional certain provisions of the Illinois Domestic Violence Act. Shephard's appeal followed (docket number 87 -- 3631).

In May 1988, and again in November 1988, the trial court found Shephard guilty of contempt and ordered Shephard's continued imprisonment for additional periods of six months from the dates of the orders or until such time as he purges himself of contempt by returning Deborah to her mother. Shephard was notified of each of these proceedings, provided an opportunity to respond, and was given hearings wherein he was represented by counsel. Shephard also appeals from these contempt orders entered in May 1988 (docket numbers 88 -- 2070, 88 -- 2100), and November 1988 (docket number 88 -- 3714).

The following chronology of the proceedings in the trial court is presented to facilitate reference for the purpose of review:

October 2, 1987: Ex parte emergency protective order

entered directing Shephard to appear

in court on October 9, 1987, with the

child;

October 9, 1987: Shephard held in contempt of court for

his failure to comply with October 2,

1987, order; Shephard ordered imprisoned

for six months or until such time

as he purged the contempt by ...


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