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In re Marriage of Flannery

March 22, 2002

IN RE MARRIAGE OF MICHELLE FLANNERY, PETITIONER-APPELLEE, AND KEVIN FLANNERY, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of McHenry County. No. 01-OP-67 Honorable Sharon L. Prather, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

Released for publication April 3, 2002.

IN RE MARRIAGE OF MICHELLE FLANNERY, PETITIONER-APPELLEE, AND KEVIN FLANNERY, RESPONDENT-APPELLANT.

Appeal from the Circuit Court of McHenry County. No. 01-OP-67 Honorable Sharon L. Prather, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

PUBLISHED

 Petitioner, Michelle Flannery, filed a petition for order of protection on behalf of her minor daughter, Amanda, against respondent, Kevin Flannery, Amanda's father. Following a hearing, the trial court entered a plenary order of protection. On appeal, respondent argues (1) the trial court erred in admitting Amanda's hearsay allegations of sexual abuse; (2) Amanda's hearsay statements lacked sufficient corroboration; (3) he was not given reasonable notice of Amanda's hearsay statements; (4) the trial court abused its discretion with respect to certain evidentiary rulings; and (5) the trial court's decision was against the manifest weight of the evidence and an abuse of discretion. For the reasons that follow, we reverse.

I. BACKGROUND

On March 14, 2001, petitioner filed a verified petition for an order of protection against respondent. Petitioner alleged that her then three-year-old daughter told social worker Regina Lumpkins that "daddy put his finger in my buddy butt (vagina) and hurt me." Among other things, petitioner requested that respondent stay away from Amanda and that she (petitioner) be granted "physical care" of the child. A hearing on the petition commenced on April 3, 2001. At the hearing, petitioner, petitioner's mother, petitioner's father, and Lumpkins testified about statements made to them by Amanda between August 2000 and April 2001 regarding the alleged sexual abuse.

At the close of petitioner's case, respondent moved to strike the hearsay statements attributed to Amanda. Respondent asserted that there were three possible bases for the admission of the hearsay statements: (1) section 213.1 of the Illinois Domestic Violence Act of 1986 (Domestic Violence Act) (750 ILCS 60/213.1 (West 2000)); section 606(e) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/606(e) (West 2000)); or (3) section 8--2601 of the Code of Civil Procedure (Code) (735 ILCS 5/8--2601 (West 2000)). However, respondent suggested that none of these statutory provisions applied to the instant case. Section 213.1 of the Domestic Violence Act did not apply because that section pertains exclusively to hearsay statements made by high-risk adults with disabilities. Respondent argued that neither section 606(e) of the Marriage Act nor section 8--2601 of the Code applied because both of those statutory provisions allow the admission of hearsay statements only if there is corroboration. Respondent contended that there was no physical or other corroboration of the statements attributed to Amanda. In addition, respondent pointed out that section 8--2601 of the Code requires that any statement have sufficient safeguards of reliability, which the hearsay statements in this case lacked. In response, petitioner, relying on Daria W. v. Bradley W., 317 Ill. App. 3d 194 (2000), argued that section 606(e) of the Marriage Act allows the admission of a child's hearsay statements of abuse at an order-of-protection hearing.

The trial court ruled that the hearsay statements were admissible under section 606(e) of the Marriage Act. The court commented that in Daria W. the appellate court "made it clear that it is [section] 606(e) that controls hearsay statements of a child dealing with abuse." Accordingly, the trial court denied respondent's motion to strike Amanda's hearsay statements. Respondent then presented his case. At the close of the evidence, the court ruled that there was sufficient evidence to corroborate Amanda's hearsay statements. Specifically, the court noted that there were two types of corroborating evidence, "physical evidence" and "testimony of the physical actions of the child when that child relayed statements of abuse." The court issued a plenary order of protection against respondent for two years. The order allowed respondent to have supervised visitation with Amanda. This appeal followed.

II. ANALYSIS

A. Applicable Statute

Respondent first argues that the trial court erred in admitting Amanda's out-of-court statements under section 606(e) of the Marriage Act. According to respondent, section 8--2601 of the Code (735 ILCS 5/8--2601 (West 2000)) governs the admissibility of a minor's hearsay statements in cases brought pursuant to the Domestic Violence Act. Section 8--2601 requires (1) the court to conduct a hearing to establish the reliability of the statements and (2) corroborative evidence of the act which is the subject of the statement if the child is unavailable to testify. Respondent asserts that Amanda's statements were not admissible under section 8--2601 because the trial court failed to determine whether Amanda's statements were reliable. Petitioner responds that the trial court properly admitted Amanda's hearsay statements pursuant to section 606(e) of the Marriage Act and Daria W.

Our task is to determine whether section 606(e) of the Marriage Act or section 8--2601 of the Code applies in assessing the admissibility of a minor child's hearsay statements where a party seeks an order of protection. The resolution of this issue involves a question of statutory construction, a question of law that is subject to de novo review. Overlin v. Windmere Cove Partners, Inc., 325 Ill. App. 3d 75, 77 (2001). The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. Forest Preserve District v. Loren & Gisela Brown Family Trust, 323 Ill. App. 3d 686, 692 (2001). The best indication of the legislature's intent is the plain language of the statute. Westcon/Dillingham Microtunneling v. Walsh Construction Co. of Illinois , 319 Ill. App. 3d 870, 875 (2001). After carefully reviewing the applicable statutory provisions, we conclude that section 8--2601 applies in determining the admissibility of Amanda's out-of-court statements of sexual abuse by respondent.

The Domestic Violence Act (750 ILCS 60/101 et seq. (West 2000)) governs orders of protection. Section 205(a) of the Domestic Violence Act (750 ILCS 60/205(a) (West 2000)) provides in pertinent part:

"Any proceeding to obtain, modify, reopen or appeal an order of protection, whether commenced alone or in conjunction with a civil or criminal proceeding, shall be governed by the rules of civil procedure of this State. The standard of proof in such a proceeding is proof by a preponderance of the evidence, whether the proceeding is heard in criminal or civil court. The Code of Civil Procedure [(735 ILCS 5/1--101 et seq. (West 2000))] and Supreme Court and local rules applicable to civil proceedings, as ...


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