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July 22, 1994


Appeal from the Circuit Court of Lake County. No. 90-D-2045. Honorable Jane D. Waller, Judge, Presiding.

Bowman, Inglis, Doyle

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Petitioner, Joanne Lichtenstein, appeals from an order denying her petition for an order of protection against respondent, Lorry Lichtenstein. Joanne's attorney, David Grund, appeals from an order finding him in contempt of court and imposing a sanction.

Joanne filed a petition for dissolution of her marriage to respondent on September 19, 1990. On October 10, 1990, she secured an ex parte order of protection in the wake of an incident in which Lorry allegedly pushed her down a flight of stairs, causing her multiple injuries. However, on October 18, 1990, following negotiations, an agreed order was entered withdrawing Joanne's petition for an order of protection but granting her exclusive possession of the parties' marital residence.

Over the next two years the parties filed a steady stream of petitions for rules to show cause and similar motions against one another, usually related to matters concerning the children or Lorry's failure to pay support or maintenance. Joanne secured another ex parte order of protection on March 18, 1991, but it was vacated two days later for lack of notice to Lorry. A joint parenting agreement, first reached in February 1992, was amended in September 1992 and attempted to resolve custody and parenting issues between the parties. Nevertheless, the hostility between them continued unabated. On December 4, 1992, Joanne filed still another ex parte petition for an order of protection, citing incidents that had occurred on November 18 and December 2, 1992. Two days later Lorry served apetition for an order of protection of his own, alleging that he had been abused during the December 2 incident.

A hearing on the two petitions was held on December 7. Joanne and Lorry were the only witnesses who testified, and they gave widely conflicting versions of the two occurrences mentioned in the petitions. It is not disputed that Lorry had parenting time from 4 p.m. to 6:30 p.m. on November 18 and Joanne was supposed to drop the children off at Lorry's home. According to Joanne, she called Lorry around 3:30 p.m. to ask what his plans were for the children that day. Lorry responded by shouting obscenities at her, telling her to get the kids over to his place, refusing to say what he had planned, and telling her she would see the kids when she saw them. Finally, he hung up, but Joanne called him back and again he swore and yelled at her. Joanne testified that Lorry's voice was "slurred," that he was breathing heavily and salivating, and that he sounded out of control as he screamed at her. She became frightened and did not take the children for visitation. She did, however, take the children to her son's basketball game where Lorry was also in attendance. In contrast to Joanne's testimony, Lorry denied that he swore or yelled at her and testified that he did not breathe or salivate heavily on the phone. He testified that when Joanne called she demanded that he return the children early and threatened that if he did not she would seek help from the police. When he questioned her, Joanne hung up.

Both parties also testified regarding the episode on December 2. Lorry had the children for visitation that evening. When he returned to Joanne's residence with them, his six-year-old son, Richard, asked him to come see some changes he had made to his bedroom. Lorry went in the house, walked up the stairs, and looked in Richard's bedroom. He was met by Joanne on the stair landing, outside Richard's bedroom. Joanne testified that she told Lorry he was not allowed to come into the home without her permission and that he should leave. Lorry began verbally abusing her, calling her crazy and swearing at her. He began walking down the stairs and out through the kitchen to the side door, stopping every few steps to turn and swear at Joanne, who was following three or four steps behind him. According to Joanne, just as Lorry was leaving through the door he turned around, clawed at her face, and grabbed at her blouse, ripping the buttons off. She then pushed Lorry out of the house and slammed the door. On cross-examination Joanne stated that since the entry of the joint parenting agreement, Lorry had been in her residence "extremely rarely" to help the children with homework or play with them. On redirect examination, she indicated he had been there no more than six times, each time with her consent.

Lorry gave a very different version of what happened on December 2. When Joanne appeared on the stair landing near Richard's room, she immediately began badgering Lorry about his plans for the weekend visitation with the children. He told her he had no plans, but she began to get agitated and threatened that if he did not tell her his plans, he would not see the children. Rather than risk a confrontation, Lorry started walking down the stairs to leave the home. Joanne followed him, but he continued walking. According to Lorry, just after he got out the side door of the house Joanne came up behind him and yanked on the hood of the ski jacket he was wearing, spinning him around, and then socked him in the face. The jacket sustained a small rip where the hood was attached to the coat. Lorry went to his car and called the police to report a battery. On cross-examination Lorry admitted that he knew he did not have Joanne's consent to enter the house that evening. He added, however, that when he had asked for her consent in the past, he and Joanne had always worked something out for him to come to the home. According to Lorry, Joanne always left the door open and he always walked in, and there had never been a problem. He had been there the two nights before the incident helping his son with homework.

At the Conclusion of the hearing, after finding that neither party had demonstrated that they qualified for an order of protection, the court entered an order denying both Joanne's and Lorry's petitions. However, the order also reaffirmed the October 18, 1990, order which granted Joanne exclusive possession of the residence and enjoined Lorry from verbally abusing Joanne and from using vile, profane language toward Joanne.

Joanne insists that the trial court's refusal to issue an order of protection on her behalf was improper and unwarranted. Under section 214(a) of the Illinois Domestic Violence Act of 1986 (Act), if the court finds that the petitioner has been abused, the court is to enter an order of protection prohibiting such abuse. (750 ILCS 60/214(a) (West 1992).) Among other things, the term "abuse" is defined as "physical abuse," "harassment," and "interference with personal liberty." (750 ILCS 60/103(1) (West 1992).) In her petition Joanne requested protection from all three of these. The trial court, which has broad discretion in determining whether abuse occurred under the Act, should evaluate the credibility of the witnesses, the conduct described, and the tension among household members. In re Marriage of Blitstein (1991), 212 Ill. App. 3d 124, 131, 155 Ill. Dec. 746, 569 N.E.2d 1357; In re Marriage of Hagaman (1984), 123 Ill. App. 3d 549, 554, 78 Ill. Dec. 922, 462 N.E.2d 1276.

The issue in this case rested squarely on the credibility of the witnesses, as the trial court expressly recognized. The Judge referrednot only to what she observed on the witness stand, but also pointed out that she already knew something about the parties, having been involved in the case for at least two years. She described Lorry as excitable and as having a temper and said she knew Joanne to be rigid and nervous. Regarding the two incidents related at the hearing, she stated,

"Because there are two different versions of the facts and because the personalities of the parties play into this being very much a product of both of their behaviors and both of their attitudes towards each other, it's very difficult to sort out who was the aggressor and who was responsible for what happened."

The Judge made a number of similar comments indicating her perception that both parties contributed to each instance of conflict between them and were responsible for the results of that conflict. The court concluded that neither Lorry nor Joanne had sufficiently shown abuse to merit an order of protection. In our ...

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