Appeal from the Circuit Court of Du Page County. No. 02-DV-288 Honorable Terence M. Sheen and Jane Hird Mitton, Judges, Presiding.
The opinion of the court was delivered by: Justice Callum
Respondent, David Creaser, appeals the denial of his motion to vacate nunc pro tunc an emergency order of protection granting exclusive possession of the parties' residence to petitioner, Sharon Creaser. We reverse.
On February 19, 2002, petitioner, assisted by the Du Page County State's Attorney, appeared before Judge Jane Hird Mitton. Petitioner sought an emergency order of protection granting her exclusive possession of the family residence pursuant to the Illinois Domestic Violence Act of 1986 (the Act) (750 ILCS 60/101 et seq. (West 2002)). The petition itself was a preprinted form with check boxes for standard allegations and blanks for hand-written information. Where the form asked for a description of the alleged abuse, petitioner wrote:
"On 2-15-02 at approx[imately] 1:00 PM [respondent] made accusations that I was stealing money from him--I tried to encourage 3rd party mediation--He got off the sofa to leave. I stood in front of him to ask that we get help. I had [the parties' ten-month-old daughter] in my right arm. He grabbed my left arm to push me out of the way. He still had hold of my left arm as he went thru the front door--pulling my right shoulder (and the baby) into the doorframe."
Where the form asked for the effects of the abuse, petitioner wrote that: "[b]ruises on my left bicep[s] were noticed the next day." Petitioner checked boxes on the form so as to aver:
"Both parties have the right to occupancy; and, considering the risk of further abuse by Respondent interfering with the Petitioner's safe and peaceful occupancy, the balance of the hardships favors the Petitioner because of the following relevant factors: Availability, accessibility, cost, safety, adequacy, location and other characteristics of alternative housing for each party and any minors or other dependents."
At the hearing, the court inquired where respondent would live if the order were entered. Petitioner suggested that he would stay with his parents, and then interjected that "[t]he reason for the petition is to retrieve my belongings out of the house. He has changed the locks so I don't have access to the house right now." She stated that he had also closed their checking and credit card accounts. The court asked petitioner if respondent had been arrested on a domestic violence charge, and petitioner stated that he would be that day. Neither the court nor the State asked petitioner whether respondent had ever abused her in the past or whether she feared that he would abuse her in the future.
The court found that there would likely be irreparable injury if respondent were given notice of the proceedings. It entered an emergency order of protection giving petitioner exclusive possession of the residence and set the matter for a hearing on a plenary order of protection on March 8, 2002.
Respondent filed a motion to vacate the emergency order of protection nunc pro tunc. Judge Terence M. Sheen heard this motion and held the hearing on issuance of a plenary order of protection simultaneously on March 8, 2002. The court seems to have found that respondent had not abused petitioner, although its ruling is possibly ambiguous:
"[T]he issue is whether or not there is physical abuse. I think there was a physical touching that was inappropriate. However, I think it appears that she was also interfering with his ability to leave. It seems it's both parties.
So, therefore, I'm going to enter an order that prevents both
parties from having any physical contact with each other." The court stated that the order of protection was "removed" and entered a mutual restraining order which, inter alia, prohibited physical contact between the parties and ordered petitioner to give keys to the house to respondent. The court denied respondent's motion to vacate the emergency order on the basis that respondent's testimony that he had grabbed petitioner's wrist, given at the hearing on the plenary order, supported the granting of the emergency order.
On March 15, 2002, respondent filed a motion to reconsider the denial of the motion to vacate. After some confusion as to whether this motion should have been heard by Judge Mitton or Judge Sheen, Judge Sheen denied the motion on April 22, 2002. Respondent filed his notice of appeal on May 17, 2002. He argues that the granting of the emergency order of protection was error because (1) petitioner did not make the showing necessary for the ex parte issuance of an emergency order, and (2) petitioner did not show by the preponderance of evidence that there was abusive behavior by respondent. He argues that we should hear this case, although the emergency order expired by its own terms no more than 21 days after it was entered, either because ...