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In re Marriage of Jawad

November 28, 2001

IN RE MARRIAGE OF DHIA JAWAD, PETITIONER-APPELLEE, AND DAWN WHALEN, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Du Page County. No. 99-D-1780 Honorable John W. Demling, Judge, Presiding.

The opinion of the court was delivered by: Justice Geiger

UNPUBLISHED

The respondent, Dawn Whalen, appeals from the April 4, 2001, order of the circuit court of Du Page County denying her request for a preliminary injunction. In her petition, Dawn alleged that there was a substantial risk that the petitioner, Dhia Jawad, would abduct the parties' three minor children. Dawn therefore requested that the trial court enter an order requiring that all visitation between Dhia and the children be supervised. The trial court denied this request, finding that there was no evidence that Dhia intended to abduct the children. We affirm.

Dhia was born in Iraq and came to the United States in 1980. Dhia subsequently became a citizen of the United States. Dhia and Dawn were married in August 1993. Three children were born during the marriage: Marina was born on September 22, 1994; Ibrahim was born on May 13, 1996; and Ismail was born on May 9, 1998. On July, 20, 1999, Dhia filed a petition for the dissolution of marriage. At the time of this appeal, the petition for the dissolution remains pending, and the parties' children have been placed in the temporary custody of Dawn.

On August 17, 1999, the trial court entered an order granting Dhia visitation on Wednesday evenings and on alternating Saturdays and Sundays. The trial court's order required that all visitation take place in the area of Du Page, Cook, Kane, and Lake Counties. The trial court imposed these restrictions out of concern that Dhia presented a "risk of flight" and would take the children outside of the jurisdiction.

On December 29, 1999, the trial court entered an order modifying the visitation schedule to permit Dhia to have overnight visitation. The trial court found that the "risk of flight" had been reduced as a result of the fact that the children's passports were being held by Dawn's attorney. The trial court had also received the written report of Dr. Gerald Blechman, the psychologist who had been appointed to perform a custody evaluation. In his report, Dr. Blechman found no evidence indicating that either party had abused the children. In fact, Dr. Blechman recommended that Dhia be awarded custody of the children.

On February 8, 2001, Dawn filed an emergency petition for a temporary restraining order and a preliminary injunction. In her petition, Dawn alleged that there was a substantial risk that Dhia would abduct the parties' children and take them out of the United States. In support of her petition, Dawn alleged that Dhia had made threats to remove the children from this country. Dhia was also alleged to have purchased a home in Iraq. Dawn requested that the trial court enter an order (1) preventing Dhia from removing the children from Illinois; (2) requiring that all visitation be supervised; (3) requiring Dhia to submit to an evaluation for risk of abduction; and (4) requiring Dhia to post a bond to ensure compliance with the court's order.

On February 8, 2001, the trial court entered an order denying Dawn's request for a temporary restraining order. The trial court found that Dawn did not have a likelihood of succeeding on the merits. However, the trial court did enter a temporary restraining order prohibiting the removal of the children from Illinois.

Between February 16, 2001, and March 9, 2001, the trial court conducted an evidentiary hearing on Dawn's petition for a preliminary injunction. At the hearing, Dawn testified to a number of statements Dhia allegedly made regarding his intent to take the children from her. These statements were as follows:

September 16, 1999: Dhia told Dawn that his family had picked a new wife for him in Baghdad named Norah.

September 19, 1999: Dhia told Dawn that he would get the children away from Dawn and her family.

October 30, 1999: Dhia told Dawn that he would take the children and never bring them back. Dhia also said that, although he was without a passport, he could take the children and hide with them in the United States.

January 5, 2000: Dhia told Dawn that he would not bring the children back someday.

June 9, 2000: Dhia told Dawn that the children would not convert to Christianity and that, if he had to, he and the children would jump off the Sears Tower. Dhia also told Dawn that nobody could protect her, not even "her f---ing president."

August 5, 2000: Dhia said he was waiting to get half of the money so that he could get Dawn out of the children's lives.

November 16, 2000: Dhia told the children that they would never stay with Dawn.

January 19, 2001: Dhia told his daughters that they were only living with Dawn temporarily. Dhia also referred to Dawn as a whore and a "born-again f---ing Christian" and told Dawn that she would not see their daughter Marina at age 11.

January 30, 2001: Dhia allegedly said that the final destination of the children was with him and that she would never see them.

Dawn offered into evidence tape recordings that documented some of the alleged conversations detailed above. Dawn made these recordings without Dhia's knowledge. Over Dhia's objection, these recordings were admitted into evidence. The trial court found that the recordings were made under the reasonable suspicion that Dhia had committed or was about to commit a criminal offense. See 720 ILCS 5/14--3(i) (West 2000).

Dawn also testified that in September 2000 Dhia had been convicted of domestic battery and violating an order of protection. These convictions stemmed from an incident in which Dhia allegedly punched Dawn on the head. The incident took place in front of the parties' son, Ibrahim. Certified copies of these convictions were admitted into evidence.

Dawn testified that late in 1997 Dhia's sister called from Iraq to tell him that the house next door to the house where Dhia's parents lived was for sale for $35,000. Dhia told Dawn that the house would be a beautiful villa for them. Dawn agreed to the purchase, and Dhia gave his mother the money to purchase the home. Dawn testified that the money was not given to Dhia's mother as a loan, but was instead intended to buy the parties a home in Baghdad. Dawn testified ...


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