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May 10, 1994


Appeal from the Circuit Court of Cook County. The Honorable Sheldon Gardner, Judge Presiding.

DiVito, Hartman, Scariano

The opinion of the court was delivered by: Divito

Presiding Justice DiVito delivered the opinion of the court:

Pursuant to the petition of Irene C. Healy, the circuit court granted an ex parte emergency order of protection including injunctive relief against respondent Michael T. Healy. Subsequently, Michael filed a response, and a full hearing was held. On August 9, 1993, the circuit court entered a plenary order of protection. Michael brings this interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)), asserting that there was insufficient evidence of abuse, harassment, or interference with personal liberty to support an order of protection, and that the circuit court failed to make the statutorily required findings on the record. We agree.

On July 20, 1993, Irene filed a petition for the dissolution of her marriage to Michael. Simultaneously with the filing of the petition, she filed a petition for order of protection. An ex parte hearing was held the same day, and an emergency order of protection was entered which, among other things, prohibited Michael from physical abuse, harassment, or interference with the personal liberty of Irene and their children, Jason (age 9) and Megan (age 6). Michael was also ordered to stay away from his family, but was granted visitation rights with the children. Irene was granted exclusive possession of the marital home, located at 16454 Grissom, Tinley Park, Illinois. Michael was enjoined from entering or remaining at the marital residence while under the influence of alcohol or other drugs. The matter was set for a contested hearing on August 9, 1993.

At the hearing on the petition held on that date, the following evidence was adduced.

Irene testified that Michael called her at about 10 p.m. on July 2, 1993, and said he wanted to take the children to Toledo, Ohio, for a golf tournament the next day. She agreed to this, but didn't know he was going to get the children up as early as 3:30 a.m. The children were upset, and she offered to stay home from work to take care of them. Michael returned the children at 1 p.m. on July 4th, which was three hours later than he said they would be home. Michael's girlfriend had accompanied him on the trip to Toledo with the children.

She and Michael had an argument in the children's presence two weeks earlier, before he left the house. He spoke "verbal cuss words" in the presence of the children, but "he didn't say it out loud." Her response to this was just to walk away, because she "didn't want to be bothered." When asked what effect Michael's conduct had on her, she replied, "I just don't--I don't want to be bothered with him anymore."

Irene thought Michael drank heavily, giving as a basis for her belief the fact that he came home "wobbly" one night. She admitted, however, that she went to sleep, so she had no other indication that he had been drinking heavily. She further testified that she was frightened that Michael "will be coming home at night. He may have been drinking, he might be slamming things around, and I just don't know." She also feared that "maybe he's getting into a car accident or who knows."

During the period following the entry of the emergency order of protection excluding Michael from the family home, the children had been "in an uproar." They had been misbehaving; the son had been throwing rocks at people and buildings. As a result of the children's behavior, Irene had taken them in for counseling.

On cross-examination, Irene testified that she had been living in their home with Michael and the children for about four years. She agreed to let him take the children to the golf tournament in Toledo, but "had no idea" he was going to get them up so early for the trip. He may have taken them to a golf tournament on the 4th of July weekend before, but Irene couldn't say this was the third time and didn't know it started on the morning of July 3rd.

Irene presented no additional evidence. Michael moved for a finding at the close of Irene's case, but the motion was denied after argument.

Michael testified in his own behalf. He was then staying at a friend's apartment at 7248 83rd Court in Tinley Park. Prior to the entry of the order of protection, he had been living with his wife and children in the family home. He was employed by Score International Sports as a marketing manager for an L.P.G.A. tournament.

He had gone to Toledo, Ohio, with the children on the morning of July 3rd; this was the third time they had made this trip on the 4th of July weekend. He got up at about 4 a.m. and awakened the children. The three of them had breakfast, got dressed, and left for Toledo. They got up early because it was a four-hour drive, and the tournament started at 8:30 a.m. He had brought up the trip with Irene about two weeks earlier, but one of their cars had been "giving [them] some trouble," so he was uncertain about making the trip. He arrived home with the children at about 11:30 ...

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