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Landmann v. Landmann

Court of Appeals of Illinois, Fifth District

July 23, 2019

RACHEL LANDMANN, Petitioner-Appellee,
v.
KATLIN LANDMANN, Respondent-Appellant.

          Appeal from the Circuit Court of Bond County. No. 17-OP-101 Honorable Ronald R. Slemer, Judge, presiding.

          Attorney for Appellant David M. Fahrenkamp, Law Office of David M. Fahrenkamp.

          Attorneys for Appellee Andrea Neubauer Schrader, Susan M. Simone, Land of Lincoln Legal Assistance Foundation, Inc.

          JUSTICE CATES delivered the judgment of the court, with opinion. Presiding Justice Overstreet and Justice Chapman concurred in the judgment and opinion.

          OPINION

          CATES JUSTICE

         ¶ 1 The respondent, Katlin Landmann, appeals from the circuit court's plenary order of protection entered on December 20, 2017, in which the court ordered the respondent to stay 500 feet away from the petitioner, Rachel Landmann, and her four minor children for a period of one year. On appeal, the respondent argues that the circuit court erred in admitting into evidence certain hearsay statements, failing to apply the adverse inference rule against the petitioner, and finding that he abused the petitioner or other person. We reverse and vacate the circuit court's judgment.

         ¶ 2 BACKGROUND

         ¶ 3 The petitioner and the respondent are ex-spouses and have three children together. On December 1, 2017, the petitioner filed a petition seeking an emergency ex parte order of protection against the respondent pursuant to the Illinois Domestic Violence Act of 1986 (Act) (750 ILCS 60/101 et seq. (West 2016)). The petitioner sought protection for the parties' three children as well as the petitioner's one-year-old child by another man. At the time of the plenary hearing, O.L. was 10 years old, N.L. was 8 years old, and I.L. was 5 years old. The petition alleged that the respondent spanked O.L., causing injury, because O.L. "did not know the answer to a math problem." The petitioner asserted she took O.L. to the emergency room for treatment, where the hospital staff and the police took photographs of O.L.'s injuries. Based on the allegations in the petition, the circuit court issued the ex parte order.

         ¶ 4 On December 20, 2017, the circuit court conducted a plenary hearing on the petition. At the hearing, the petitioner testified that on November 30, 2017, the children returned home from visitation with the respondent. When they came home, O.L. was crying and "whining" that her "butt hurt[ ]." Over the respondent's hearsay objection, the petitioner testified that O.L. told her that the respondent spanked her 27 times because she did not know the answer to a math problem. The petitioner testified she observed on O.L.'s bottom a large red mark with bruising, which worsened over time. The petitioner took O.L. to the hospital for treatment that evening. The petitioner testified the hospital took photographs of O.L.'s injuries and contacted the police. During cross-examination, the petitioner denied recently seeking additional monthly support or a vehicle from the respondent or offering to allow the respondent additional parenting time in exchange for a vehicle.

         ¶ 5 The respondent also testified at the hearing. During direct examination, the respondent denied spanking O.L. 27 times. The respondent stated he spanked O.L. three times and sent her to the corner because "she was having problems with her math homework." The respondent testified he spanked O.L. because she wanted him to give her the answer and she was not applying herself to her homework. The respondent emphasized that he has "rules in [his] house" and that O.L. "continued to ignore [him] and not try and not apply herself." The respondent testified the petitioner recently requested additional child support from him and attempted to bargain with him to obtain a car from him or his father. The respondent denied hurting O.L. but testified he was not aware whether the spanking left marks on O.L.

         ¶ 6 At the conclusion of the evidence, the petitioner's counsel requested the court enter a plenary order of protection, asserting that the respondent's spanking of O.L. constituted abuse because it resulted in bruises lasting days. The respondent's counsel requested the court dismiss the order of protection because the spanking constituted the "reasonable direction of a minor by a parent" and, therefore, fell within the statutory exclusion to abuse. The respondent also requested that the court apply the rule of adverse inference with regard to the alleged photographs of the bruising because the petitioner did not produce the photographs at the hearing and he believed that she had exclusive access to the photographs.

         ¶ 7 The circuit court, stating it "heard the evidence [and] considered the credibility of the witnesses," entered a plenary order of protection for one year. The court entered a written order utilizing a preprinted form. In the written order, the court found the respondent "abused Petitioner and/or the children," that the actions of the respondent would likely cause irreparable harm or continued abuse unless they are stopped, and that it was necessary to grant the requested relief to protect the petitioner and other abused persons. The preprinted order defined "abuse" as "physical abuse *** but does not include reasonable direction of a minor child by a parent."

         ¶ 8 The respondent filed a motion for relief after judgment pursuant to section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West 2016)). The court denied the postjudgment motion, stating it had weighed the believability ...


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