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10/01/97 PAMELA A. WHITTEN v. MICHAEL C. WHITTEN

October 1, 1997

PAMELA A. WHITTEN, PETITIONER-APPELLEE,
v.
MICHAEL C. WHITTEN, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, No. 97--OP--3092. Honorable Gilbert L. Niznik, Judge, Presiding.

Rehearing Denied November 12, 1997. Released for Publication November 12, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Kent Slater, Justice, Honorable Thomas J. Homer, Justice. Justice Slater delivered the opinion of the court. Lytton, P.j., and Homer, J., concur.

The opinion of the court was delivered by: Slater

The Honorable Justice SLATER delivered the opinion of the court:

On March 3, 1997, petitioner, Pamela A. Whitten, filed a petition for an emergency order of protection alleging that respondent, Michael C. Whitten, had physically abused their minor son, Tedmond Whitten, during regular visitation pursuant to the divorce judgment entered between the parties. After the ex-parte hearing, the court entered an emergency order of protection on March 3, 1997, which in pertinent part prohibited abuse and suspended visitation. On March 5, 1997, respondent was served with a summons notifying him of the order of protection. He filed a motion for rehearing, an answer and an affirmative defense. The motion for rehearing was argued on March 14, 1997, and on March 19, 1997, the court denied respondent's motion and began hearing testimony. On March 24, 1997, petitioner rested and respondent filed a motion for a directed finding. On April 9, 1997, the court denied the motion for a directed finding but ordered the respondent's full rights of visitation restored as per the original judgment for divorce entered between the parties. On April 23, 1997, the court entered an interim order of protection which preserved respondent's full visitation rights per the divorce judgment but prohibited physical abuse of the minor son. The interim order was to expire by its own terms on May 23, 1997. On May 23, 1997, the court extended the interim order until May 30, 1997, at which time it did expire. Respondent filed a notice of interlocutory appeal on May 23, 1997.

On appeal, respondent alleges that: (1) the emergency order of protection fails procedural due process because of lack of proper notice, and (2) the interim order of protection, which preserved full visitation rights but prohibited abuse, was unnecessary because respondent's discipline of the minor child was reasonable.

FACTS

During the weekend of Saturday, March 1, and Sunday, March 2, 1997, Tedmond Whitten, the 10-year-old son of petitioner and respondent, was staying with respondent as part of the regular visitation per the divorce judgment. Ashley Whitten, respondent's 12-year-old daughter from his first marriage, was also staying with respondent. The children stayed out very late Saturday night at a relative's house and did not get to bed until about 1:30 a.m. on Sunday morning. At approximately 9:30 a.m. on the morning of March 2, 1997, respondent attempted to wake Tedmond so that Tedmond could get ready for his soccer game, which was at 10:45 a.m. that morning. Despite several requests from respondent, Tedmond stated he was tired and refused to get up.

According to respondent, the minor "completely and totally defied my parental authority over him. " Respondent then proceeded to strike Tedmond with a belt approximately four to six times. Respondent testified that he intended to strike Tedmond on the buttocks region only, but since Tedmond struggled, the minor child was struck on areas other than the buttocks. Respondent testified that the spanking was reasonable and administered for the sole purpose of disciplining his son pursuant to his parental obligations, and that at no time was he in a rage or out of control.

Tedmond's account of the spanking differed from that of the respondent. Tedmond testified that after he refused respondent's requests to get up, respondent grabbed him by his nightgown and dragged him to the floor, ripping the nightgown. Respondent then grabbed him by the arm and struck him with a belt approximately eight times. When Tedmond struggled, respondent twisted Tedmond's arm and flung him on the bed. Respondent then got on top of Tedmond on the bed and knelt on Tedmond's legs, causing pain to the minor child. Respondent continued to strike Tedmond, making contact with Tedmond approximately ten more times. The photographs that were in evidence showed bruises on various parts of Tedmond's body, and Tedmond testified that it hurt on his legs, his upper and lower back, his left arm and his shoulder blades. Tedmond testified that he did not receive any medical attention for his bruises. On March 21, 1997, 19 days after the spanking, Tedmond testified that most of the bruises had healed, with the exception of one bruise on his right thigh which was exhibited in court and found to be between 1/4 to 1/2 inch in diameter.

Ashley Whitten testified that she slept in the same room as Tedmond and that respondent asked her to leave the room prior to striking Tedmond. Although she did not see the spanking, she heard nine or ten slaps accompanied by Tedmond's screams. After the spanking, Ashley testified that respondent came downstairs with a belt in his hand and a fearsome and angry expression on his face. She also testified that Tedmond showed her a welt on his leg.

Mark A. Bickle, Tedmond's soccer coach, testified that on the morning of March 2, 1997, he saw Tedmond curled up in a corner. Tedmond was crying and very upset, and he told the coach he had been spanked for not wanting to get up. Tedmond showed Mr. Bickle the red mark on his thigh.

Petitioner testified as to the foundational elements of the photographs that she took of Tedmond's bruises. She testified the photographs were taken at approximately 12:15 ...


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