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Peck v. Otten

April 15, 2002

BELINDA PECK, PLAINTIFF-APPELLEE,
v.
KEVIN OTTEN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court, of the 10th Judicial Circuit, Peoria County, Illinois No. 01-OP-243 Honorable Erik Blanc Judge, Presiding

The opinion of the court was delivered by: Justice Homer

UNPUBLISHED

The defendant, Kevin Otten, appeals from the entry of a plenary order of protection against him obtained by his ex-wife, Belinda Peck, on behalf of their minor son, Cory. On appeal, he argues that the trial court's finding of "abuse" was against the manifest weight of the evidence and an abuse of the court's discretion. We affirm in part, reverse in part and remand.

FACTS

The parties were divorced in August 1995. During their marriage, they had one son, Cory, born in December of 1988. At the time of their divorce, the parties agreed to joint custody of Cory with Belinda being the residential parent. A stipulated modification order was entered in March 2000 in which Kevin and Belinda agreed to joint custody of Cory with Kevin being the residential parent.

On March 12, 2001, Belinda filed a petition for an order of protection on behalf of Cory, alleging that Kevin had abused Cory. Specifically, the petition claimed that: (1) Kevin has been coming home drunk and destroying Cory's personal belongings; and (2) Kevin grabbed Cory after he had been drinking. An emergency order of protection was granted that same day.

A plenary order of protection hearing was held on April 2, 2001. According to the bystander's report, the evidence at the hearing showed that on March 8, Kevin told Cory that he was going out at approximately 8 p.m. and instructed Cory to clean the house and finish his homework. Kevin returned home around 12:30 a.m. He had been drinking. When he arrived home, he discovered that Cory had not cleaned the house or completed his homework. Kevin awakened Cory. In his anger, Kevin grabbed a pool cue that he had given Cory and broke it. He told Cory that if he did not have time to do his homework and the housework, he did not need to be playing pool.

Cory testified that his father would often not come home from work but instead would go to the tavern right after work. Cory also stated that his father "would always wake him up when he came home from drinking and would break things and throw things."

The trial court found that Kevin committed abuse and entered a plenary order of protection prohibiting Kevin from having any contact with Cory. The order did not specify a termination date.

ANALYSIS

Initially, we note that an appellee's brief was not filed in this case. However, since the record is simple and the issue can be decided without an appellee's brief, we will address Kevin's issue on the merits. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).

On appeal, Kevin argues that the protective order was not supported by the evidence or, in the alternative, was an abuse of the trial court's discretion.

Although there is some support for utilizing the manifest weight standard of review, most appellate courts review findings of abuse under an abuse of discretion standard. Wilson v. Jackson, 312 Ill. App. 3d 1156, 1165, 728 N.E.2d 832, 839 (2000). An abuse of discretion occurs when no reasonable person would take the view adopted by the court. Wilson, 312 Ill. App. 3d at 1165, 728 N.E.2d at 839.

The Illinois Domestic Violence Act of 1986 (Act) (750 ILCS 60/101 et seq. (West 2000)) provides that protective orders may be entered against persons who have abused a minor child in their care. 750 ILCS 60/201(b)(i) (West 2000). The Act's definition of "abuse" includes physical abuse, harassment, or intimidation of a minor child but does not ...


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