Appeal from Circuit Court of Adams County No. 02OP160 Honorable Chet W. Vahle, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
Catherine and Thurman Munger, husband and wife, filed petitions for orders of protection against one another. They had a daughter in day care. After an evidentiary hearing on the two petitions, the trial court granted Catherine's petition and denied Thurman's petition. In its order of protection, the trial court awarded temporary custody of the child to Catherine and allowed Thurman the right to visit the child.
Afterward, Thurman filed a petition for a rule to show cause, complaining that Catherine had frustrated the visitation provisions in the order of protection. The trial court dismissed the petition for a rule to show cause but ordered that Thurman's visits with the child would henceforth be unsupervised. Catherine appeals, arguing that by eliminating the supervision of visitation, the trial court modified the order of protection sua sponte, without a written motion to do so or prior notice to her. Thurman has filed no brief. Nevertheless, the record is simple, and we can easily decide the issues in this appeal without an appellee's brief. See First Capitol Mortgage Corp. v. Talandis Construction Co., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976). Catherine's brief finds support in the record and points to prima facie reversible error. See Talandis, 63 Ill. 2d at 133, 345 N.E.2d at 495.
Catherine argues that the lack of (1) a written motion to modify the protective order, and (2) advance written notice to her are fatal to the trial court's modification of its protective order. We affirm the trial court's judgment.
The order of protection allowed Thurman to visit the child only "while [the] child [was] at [Daydreams] [D]aycare[,] with 48[-]hour advance written notice to the daycare and [Catherine,] or as agreed in writing by the parties through counsel." Thurman was to stay at least 500 feet from Catherine and--except when visiting the child at Daydreams Daycare--the same distance from the child, too.
On September 17, 2002, Thurman filed his petition for a rule to show cause, alleging that Catherine had disenrolled the child from Daydreams Daycare without telling him she was going to do so or letting him know where he could visit the child.
According to an order entered on October 4, 2002, the "[p]arties appear[ed] with counsel in [an]- 1 -attempt to renegotiate visitation. By agreement, [Thurman could] have visitation[,] as arranged through [a] private visitation supervision service or [as] otherwise agreed [to] by the parties, of at least [two] days every other week."
On October 11, 2002, the trial court held an evidentiary hearing on Thurman's petition for a rule to show cause. Thurman testified that on September 6, 2002, Daydreams Daycare told him the child was no longer enrolled there. This news came as a surprise to Thurman. His attorney called Catherine's attorney and learned that the child was now enrolled in the day care at Blessing Hospital, where Catherine worked. The order of protection expressly forbade Thurman from entering that hospital (except in a medical emergency or--with advance notice to Catherine--for routine treatment or to visit a patient). As a consequence, he was deprived of opportunities to visit his daughter. Thurman's attorney asked him:
"Q. Are you asking the [c]court to consider doing away with the supervised visitations?
Catherine took the stand and admitted removing the child from Daydreams Daycare and enrolling her in Blessing Daycare. She had done so because Blessing Daycare's hours of operation better fit her unpredictable work schedule.
In his closing argument, Thurman's attorney told the trial court: "As a remedy, I'm asking the [c]court to revisit the question of supervised visitation or, in the alternative, I'm asking the ...