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Radke v. Radke

May 14, 2004


[6] Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois, No. 99-D-776 Honorable William Banich, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Slater

[8]  The trial court granted the petitioner, Kathryn Radke, a plenary order of protection restraining the respondent, Ross Radke, from abusing, harassing, intimidating or interfering with the personal liberty of the parties' daughter. Ross appeals, contending that: (1) the trial court abused its discretion in granting the order of protection because the evidence did not support a finding of harassment; and (2) any action to restrict his contact should have been taken under the existing dissolution action rather than by obtaining an order of protection. We reverse.

[9]  FACTS

[10]   Kathryn was granted residential custody of the parties' 12-year-old daughter, Laine Radke, following the dissolution of their marriage. Ross was granted extensive visitation, including the first weekend of each month and every week from Tuesday through Thursday.

[11]   Kathryn filed a petition for an order of protection on behalf of Laine on January 9, 2003. Kathryn sought, among other things, an order prohibiting Ross from abusing, harassing or intimidating Laine. The trial court issued an emergency order of protection ex parte.

[12]   At the subsequent hearing on the petition, Laine testified that she went to her father's house for visitation on January 7, 2003. She informed Ross that she did not enjoy spending time at his home, and she wanted to go back to Kathryn's house. According to Laine, Ross told her that she was insane and he was going to take her to a hospital. Laine became afraid and tried to call Kathryn on the telephone. When she tried to make the phone call, Ross ripped the telephone off of the wall and told her that she was grounded. When questioned about her claim that the phone was "ripped" from the wall, Laine explained that there were three phones that "were all attached to one thing and he took the one thing all out." Laine later tried to use the phone three additional times to call her mother or the police, and each time her father unplugged the phone she tried to use.

[13]   Laine later left the house to walk back to her mother's house. According to Laine, Ross followed her outside, held her arms behind her back, pushed her in the door and pushed her into her room. Ross also tried to punch her twice, but she avoided contact by moving backward. Laine testified that she suffered a bruise on her arm as a result of this incident.

[14]   On cross-examination, Laine testified that she screamed and cursed during this incident. She believed that she had to curse and scream at Ross to communicate with him. She also kicked Ross in the groin, but claimed she did so in self-defense. Additionally, she testified that she had missed or cut short her visitation with Ross on several occasions in December 2002 and January 2003. The day after the incident, Laine went with her mother to the police station to make a complaint against her father. The police observed no bruises or marks on Laine. When asked why she wanted an order of protection, Laine responded that she did not want her father to touch her again and she wanted to be able to see him only when she wanted to see him. She felt that she had too much visitation with her father and she did not feel welcome at his home.

[15]   Laine's brother, Bryce Radke, testified that he observed a small bruise on Laine's arm after she returned from visitation. Kathryn testified that she observed a bruise on Laine's arm and swelling on her hand. Kathryn also testified that it was her idea to seek an order of protection, because Laine had begged her never to send her back to her father. Kathryn admitted that she used the order of protection to temporarily suspend visitation.

[16]   Ross's wife, Debbie Radke, testified that Laine screamed and cursed at Ross on January 7, 2003. Ross told Laine to go to her room and grounded her from using the telephone or the computer. Laine then tried to leave her room several times. At one point, Laine ran outside. Ross responded by escorting Laine back to her room by holding her arms. Laine kicked Ross while he was escorting her to her room. Debbie also testified that she and Ross had received several e-mails from Laine that contained profanity.

[17]   Debbie's son, Josh Williams, testified that he observed part of this incident. He testified that Laine kicked, hit and cursed at Ross. Ross unplugged the telephone and told Laine to go to her room, but he did not strike or kick Laine.

[18]   Ross testified that prior to the incident, he had allowed Laine to miss some visits at her request. On January 7, he told Laine that he would call the police to enforce the visitation if she did not come over. Laine's mother had done the same thing a year earlier when Laine had refused to go back to her mother's house. Laine had a history of being on good terms with only one parent and then switching preferences.

[19]   Ross further testified that after Laine arrived she became upset, cursed at him, and he told her to go to her room. She came back out of her room, told him that she was going home and continued to curse at him for several minutes. Ross refused to allow Laine to use the telephone to call Kathryn. Laine then kicked him in the groin and punched him in the face. Ross responded by placing his hand on Laine's back and pushing her down the hallway to her room.

[20]   Laine continued to leave her room to attempt to use the telephone. Ross unplugged the telephone and escorted her back to her room. Ross testified that he did not rip ...

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