Opinion
NO. 5-14-0478
02-02-2015
GERALDINE MARIE CASEY, Petitioner-Appellee, v. ANTHONY RAY STEPTER, Respondent-Appellant.
NOTICE
Decision filed 02/02/15. The text of this decision may be changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of the same.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Johnson County. No. 14-OP-16 Honorable Joseph Jackson, Judge, presiding. JUSTICE WELCH delivered the judgment of the court.
Justices Chapman and Schwann concurred in the judgment.
ORDER
¶ 1 Held: The trial court's entry of an order of protection against the respondent is affirmed where the court's finding that the respondent committed abuse was not against the manifest weight of the evidence; the court's findings complied with section 214(c)(3) of the Illinois Domestic Violence Act of 1986 (750 ILCS 60/214(c)(3) (West 2012)); and the court did not err in denying the respondent visitation of the parties' minor children as a remedy under the Act. ¶ 2 On May 28, 2014, the petitioner-appellee, Geraldine Marie Casey (Geraldine), sought and received an emergency order of protection in the circuit court of Johnson County against the respondent-appellant, Anthony Ray Stepter (Anthony). After a hearing held on June 13, 2014, the trial court granted a plenary order of protection against 2 Anthony to Geraldine and the parties' three children. Anthony's June 30, 2014, motion to reconsider or modify the order was denied. On appeal, he asserts that the trial court erred and reversal is warranted because the finding of abuse, as well as the failure of the court to provide him any type of visitation with his children, was against the manifest weight of the evidence. For the following reasons, we affirm the decision of the circuit court. ¶ 3 On May 6, 2009, a judgment for the dissolution of the parties' marriage was entered in Johnson County case number 08-D-5. Three children were born during the marriage: C.R., a 13-year-old daughter; E.A., a 10-year-old son, and S.W., a 9-year-old son. ¶ 4 On August 23, 2010, the record indicates that Geraldine filed a petition to modify visitation in the dissolution of marriage case, asserting that Anthony only sporadically exercised his right to visitation, and that on the occasions that he did, he failed to comply with the dietary needs of S.W., his autistic son; his girlfriend, Beth Stone, ridiculed the children; and the children received numerous tick bites, experienced bruises, and had no bed in which to sleep; and Anthony failed to show interest in the children's school functions, medical conditions, or academic progress. A hearing was held on January 11, 2011; on January 24, 2011, the court entered an order denying the petition. 3 ¶ 5 On May 28, 2014, Geraldine filed a petition seeking an order of protection against Anthony pursuant to the Illinois Domestic Violence Act of 1986 (the Act) (750 ILCS 60/203 (West 2012)). The petition alleged the following: that Anthony, calling it "horse playing," punched C.R. hard in the arm, causing bruising, and on a separate occasion, grabbed C.R.'s arm when she attempted to change the radio channel in the car, also causing bruising; that Anthony and his current wife (Stone) fight in front of the children; that Stone ridicules the children, calling C.R. "fat" and yelling "I can't understand you" to S.W.; that the children are not allowed in Stone's son's room; that Anthony fails to give S.W. his medication or feed him his proper diet; that the children are forced to make a two-hour drive to attend "7th Day Adventist Church" on Sundays; and that Anthony tells the children that Geraldine is a "whore, slut, bitch, and downgrades [her] in front of the children, slandering [her]-saying how [she] takes all his money, he can't afford anything [sic] even though he just purchased 2 new vehicles." At a hearing held that same day, Geraldine testified that Anthony also gets very aggressive with the boys and her children come home with bruises and scratches. ¶ 6 The court granted an emergency order of protection. Pursuant to the court's order, Geraldine and the parties' children were protected persons, and Anthony was prohibited from committing acts of abuse or threats of abuse, including "harassment, interference with personal liberty, physical abuse, or stalking" and "intimidation of a dependent." Anthony was denied visitation with the children, as he has or was likely to use visitation as an opportunity to "abuse or harass [Geraldine], [Geraldine's] family, or household 4 members," "abuse or engender the minor children during visitation," and "act in a manner that is not in the best interest of the minor children." ¶ 7 On June 13, 2014, a plenary hearing was held on the petition. Geraldine appeared with her attorney, and Anthony appeared pro se. At the hearing, the court acknowledged that before the hearing currently on the record, there was a conference in chambers at Geraldine's attorney's request. The court stated that in that conference, Anthony was informed that he would be granted time, if necessary, to obtain an attorney. The court advised Anthony that there is more to representation than telling his side of the story, and that there are specific rules regarding evidence that apply in a courtroom. The court felt that Anthony was "making a very, very grave error if [he came] into this hearing [without representation]" due to the fact that his employment at the Department of Corrections required him to carry a firearm, and if Anthony did not prevail at this hearing, he would lose his job. Anthony replied that he had "no choice but to represent [himself]" because "[he had] no *** more income for an attorney." Geraldine's attorney offered to continue the emergency order of protection and have the matter heard in the divorce case, but Anthony stated that he would lose his job. ¶ 8 Geraldine testified that she noticed bruises on C.R.'s arm on Monday, after returning from visitation with her father over the previous weekend. When she asked C.R. where she had gotten the bruise, C.R. told her that "she never wanted to tell" but that 5 Anthony, while "horse playing," had punched her arm, and that "he likes to be aggressive like that." Geraldine testified that the second bruise, which by its appearance "[she] could tell it was somebody grabbing [C.R.'s arm]," was the result of Anthony grabbing C.R. roughly when she changed the radio station while riding in his car. Geraldine took photos of the bruises, and she brought C.R. to the police station the next day where she was interviewed by Deputy Jeff Jordan. Geraldine testified that C.R.'s statement to Jordan was consistent with her own testimony. Geraldine noted that after this incident, C.R. told her that aggressive altercations with her father have occurred repeatedly over the years. In response to questioning about the bruises potentially being caused by C.R.'s boyfriend, Jonathan Sullivan, Geraldine responded that C.R. and Jonathan attend different schools in different towns. She testified that C.R. did not see Jonathan on the weekend that she received the bruises, but agreed that she did not know whether C.R. had contact with her boyfriend on that Friday. ¶ 9 Regarding E.A., Geraldine testified that he has come home from visits with bruises, and that his teachers at school have questioned her about them. She noted that E.A. is beginning to show signs of aggressiveness "because of what he's learned." Regarding S.W., Geraldine testified that he often tells her that he does not want to visit his father, that Anthony is mean to him, and that the children have heard Stone tell S.W. that he is retarded. Geraldine also stated that Anthony does not properly administer S.W.'s diet or medication. ¶ 10 Geraldine testified that Anthony does not involve himself in the children's lives outside the weekend visitations and "still some weekends he doesn't get them whenever 6 he's got something he's got to do." She noted that Anthony continues to slander her to the children. Geraldine testified that Anthony was abusive throughout their marriage, and that the children continue to witness domestic abuse between Anthony and Stone. She testified that she is still afraid of Anthony. ¶ 11 Deputy Sheriff Jeffrey Jordan testified that on May 28, 2014, Geraldine brought C.R. into the Johnson County sheriff's department to file a report. Jordan stated that in his interview with C.R., she told him that the bruises on her upper arm were caused by Anthony striking her with a pair of boxing gloves while she was sitting on the couch during the previous weekend's visitation. Jordan stated that C.R. told him that the other bruise was caused by Anthony grabbing her arm while she was turning the radio dial in the car. On cross-examination, Anthony attempted to elicit information regarding Jordan's conversation with Jonathan, but a hearsay objection by the petitioner was sustained by the court. ¶ 12 The court conducted an in camera interview of C.R. When asked about her upper-arm bruise, C.R. told the court that her father "can get really aggressive" and tells her that "you guys need to toughen up." She testified that while sitting on the couch in his living room, "[Anthony] decides to play with the boys and stuff, and he's punching them, like saying 'toughen up' and then comes up to me and punches me, and I just say 'stop' because I don't want to be punched on and stuff, and he punches me harder." She stated that she got the bruise on her lower arm when, as she was changing the radio station in the car, "my dad grabbed my arm really hard and held it, he had a really tight grip and it hurt." C.R. testified that she was truthful with both her mother and Deputy Jordan. 7 ¶ 13 C.R. testified that Anthony punches her "every time [she's] there" and he also punches E.A. and S.W., claiming to be playing around, but "really, honestly, he's not." She noted that E.A. "tries to go along with it," but that S.W. does not like it. She stated that "[Anthony] will push [S.W.] on the ground and [S.W.] will get back up, and then he will push him down again and [S.W.] will say to stop and [Anthony] will keep doing it. [S.W.] will go to his room and start crying and just say that he wants mom." The court noted for the record that C.R. was tearful during this testimony. ¶ 14 C.R. stated that Anthony calls Geraldine "[a] whore and a slut" in front of her and her brothers, and E.A. will agree "because [E.A.] doesn't know how to react to it." The court inquired as to why C.R. did not tell her father how she felt, and C.R. responded that she had been too afraid to tell anyone. She stated that she and her brothers are afraid of her father's punishments, which include yelling and hitting them on the head with a wooden paddle. ¶ 15 C.R. testified that her boyfriend's name is Jonathan Sullivan. She noted that she rarely gets to see him, and there is no possible way he ever gave her any bruises. She agreed that on the weekend of the incident, she did not see Jonathan from the time she went to visit her father to the time she told her mother about her bruises. ¶ 16 Anthony then called witnesses on his behalf. Alaina Stone stated she was nine years old and in the fourth grade. She testified that on May 24, she spent the weekend at Anthony's home and shared a bedroom with C.R. She testified that C.R. told Anthony that she had gotten bruises from running into a pole in the school cafeteria, but that later, she told Alaina that her boyfriend bit her on the arm. Alaina testified that on that 8 Saturday night, she saw C.R. "skyping" with a boy. She testified that the boy was C.R.'s boyfriend, and C.R. told her that his name was Jonathan. ¶ 17 Beth Stone testified that C.R. told her about her boyfriend, Jonathan. Stone agreed that on the weekend in question, she did not witness Anthony strike or grab C.R., and agreed that she had never witnessed him "kicking or punching [S.W.] just for the heck of it." ¶ 18 Andrea Stepter, Anthony's daughter, testified that she had never witnessed Anthony smack, punch, or kick any of the children, and he did not do those things to her while she was growing up. She agreed that in the past, Geraldine had encouraged her to lie and keep things from her father. Andrea testified that she is friends with C.R. on Instagram, and C.R. had posted several "selfies" saying that she was "[g]oing to Metropolis," that were then "turned around and deleted." Andrea agreed that she had heard that C.R.'s boyfriend lived in Metropolis. ¶ 19 Anthony testified that Geraldine "started in with the normal manipulative behavior" when E.A. expressed interest in living with him. He stated that he believed that C.R. is "brainwashed" and that he did not put the bruises on her. He noted that he has no record of violence, and that he gives S.W. his proper diet and medication. Anthony testified, "[Geraldine] knows that if I have an [order of protection] it sticks to me [sic] that I'm going to lose my job. And, of course, in [the court's] chambers, [Geraldine and her attorney] brought up that they want me to sign over the rights to my children and they will drop everything. They want me to choose between my job and my children. I am going to choose my children every time." 9 ¶ 20 On cross-examination, Anthony agreed that he complains about paying child support, and agreed that Geraldine's attorney has previously offered "to terminate [his] rights in exchange for not paying any more child support." He agreed that in the meeting held in the court's chambers before the hearing, Geraldine's attorney stressed to him that she did not want to have a permanent order of protection against him because of the repercussions to his employment. He also agreed that she asked him to continue the emergency order of protection, and instead have these issues heard in the divorce case. He did not agree that he felt that Geraldine and her attorney were making the offer to protect his employment, but felt that they were "strong arming" him. ¶ 21 At the end of cross-examination, the court wanted to clarify the discussion in the prehearing meeting in chambers. The court noted that in that meeting, Geraldine's attorney made a proposal to continue the emergency order of protection, and the issues at hand would be "merged and resolved in the dissolution of marriage proceeding, that was going to be pending when [Geraldine] filed a petition for termination of visitation rights. There was no discussion of any termination of parental rights." The court stated that it encouraged Anthony to further these discussions, advising him that "if [he] needed an extension of time to obtain an attorney to get legal advice, that [the court] thought it was absolutely imperative that [he] do so." Anthony agreed that he told the court in that meeting that he was not able to obtain a lawyer, despite the court's warnings. The court also noted that Geraldine's attorney had indicated her concern that Anthony would become a danger to her or to others if he lost his job, and noted for the record that Anthony appeared amused by the sentiment. 10 ¶ 22 After the parties gave closing arguments, the court stated that it had an opportunity to observe C.R. while testifying, and to form an opinion by asking her questions regarding attempts to manipulate her and whether there was any reason to believe she was not telling the truth. The court believed that C.R.'s testimony was truthful. The court noted that it was ready to make a ruling, and asked Anthony if he wanted to consider the earlier proposal of taking the matter up in the divorce case. Geraldine's attorney noted that the option remained agreeable if the evidence from the current hearing would be available for that proceeding; the court, "that being the case," issued a plenary order of protection, stating that in its best judgment, C.R. told the truth, and "the truth not only affected her welfare, but it affected [E.A.] and [S.W.]'s welfare as well." The plenary order of protection was made effective until June 13, 2016. ¶ 23 On June 30, 3014, Anthony, through an attorney, filed a motion to reconsider, or in the alternative, to modify condition of order or protection. Anthony alleged that if terminated from his employment, the parties and the minor children will suffer great economic harm, and the parties' divorce case is a more appropriate forum for the visitation issues. He also alleged that a termination of his visitation for a two-year period is not in the best interest of the children, that their interests would be best served by the appointment of the guardian ad litem in the parties' divorce case, and that Anthony would be willing to enter into a temporary no contact order with the children. Anthony requested that the court reconsider the entry of the plenary order of protection, or in the alternative, modify it by allowing him to carry a firearm at the place of his employment. At a July 11, 2014, hearing, both parties appeared with representation. The court entered 11 an order modifying a condition of the order, giving Anthony the right to carry a firearm for employment purposes, and the court continued the hearing on the motion to reconsider. ¶ 24 On August 29, 2014, Anthony filed an amended motion to reconsider, or in the alternative, reopen evidence and/or modify conditions. Anthony requested to recall Deputy Jordan to testify regarding his investigation of the incident, to call Mary Sullivan and Jonathan Sullivan to testify, and to conduct an in camera interview of C.R. and E.A. The amended motion also requested that Anthony be allowed to have restricted or supervised visitation with his minor children, pending an investigation regarding their best interest, order him to participate in anger management classes if the court deems it necessary, and order him and C.R. to attend family counseling. ¶ 25 At a hearing held that same day, the court heard the parties' argument on the motion. The court found that Anthony "had his bite of the apple and he took his bite of the apple, and he didn't like the results. So the Motion for Reconsideration is denied. I see no legal basis for a reconsideration and I see no legal basis for opening the proof." The court noted its desire for both parents to have a good relationship with their children, but found that based on the evidence, "[the court] was convinced that the order of protection as entered was the appropriate order." ¶ 26 On appeal, Anthony alleges that the trial court's failure to dismiss the plenary order of protection and its denial of his amended motion to reconsider was against the manifest weight of the evidence. Specifically, he asserts that the trial court erred in denying the motion to reconsider where additional testimony from material witnesses 12 would have corroborated the statement and testimony of Alaina Stone. Further, he asserts that the court erred in failing to dismiss the plenary order of protection where the court did not consider the totality of the circumstances, such as the credibility of Geraldine and C.R.; it improperly allowed Geraldine to use the order of protection as a vehicle to modify custody; and it failed to make any specific oral or written findings of abuse per the statutory requirements of section 214(c) of the Act. Finally, Anthony argues that the court erred in failing to provide for any type of restricted or supervised visitation with E.A. and S.W., in order to foster and preserve the relationship pending a complete investigation under the Illinois Marriage and Dissolution of Marriage Act. ¶ 27 In any proceeding to obtain an order of protection, the central inquiry is whether the petitioner has been abused. Best v. Best, 223 Ill. 2d 342, 348 (2006). Under section 214(a) of the Act, once the trial court finds that the petitioner has been abused, "an order of protection *** shall issue." 750 ILCS 60/214(a) (West 2012). Abuse as defined in section 103(1) includes physical abuse, harassment, intimidation of a dependent, interference with personal liberty, or willful deprivation. 750 ILCS 60/103(1) (West 2012). Section 103(14) defines "physical abuse" to include "knowing or reckless use of physical force" and "knowing or reckless conduct which creates an immediate risk of physical harm." 750 ILCS 60/103(14)(i), (iii) (West 2012). ¶ 28 Anthony first asserts that the trial court erred by denying his motion to reconsider by denying him the opportunity to present additional evidence and testimony regarding C.R.'s allegations. He argues that "[Geraldine] was able to rehash the allegations that were unfounded in 2010" and the court "heard five (5) different versions of the event that 13 led to the bruises on C.R.'s right arm." At the hearing, the trial court interpreted this portion of Anthony's argument as a motion to reopen the proofs; we thus review the trial court's determination on this allegation for an abuse of discretion. In re Marriage of Sawicki, 346 Ill. App. 3d 1107, 1120 (2004). ¶ 29 "If evidence offered for the first time in a posttrial motion could have been produced at an earlier time, it is not an abuse of discretion for the court to deny its introduction into evidence." Id. At the hearing on the motion to reconsider, the court reminded Anthony that it had unambiguously expressed concerns regarding Anthony's decision to appear pro se, noting that Anthony "was given every opportunity" to find legal representation before conducting the hearing on the order. We agree that the court "could [not] have been more clear" in stressing the risk of not hiring representation, so as to prevent these exact evidentiary issues that Anthony raises on appeal. Anthony does not allege that any of this information could not have been produced at an earlier time. As Anthony had the opportunity at the hearing to cross-examine Deputy Jordan regarding his investigation of the incident, to call Jonathan Sullivan and/or Mary Sullivan to testify as witnesses, and to request additional in camera interviews, we find that the trial court's decision on this matter was not an abuse of discretion. ¶ 30 Anthony also argues that the trial court's failure to dismiss the plenary order of protection was error, as the totality of the evidence weighs against a finding of abuse. Anthony cites the inconsistencies in C.R.'s testimony and Geraldine's testimony; specifically, C.R.'s statement to Deputy Jordan regarding the presence of boxing gloves and number of punches as compared to her testimony to the court, the inconsistencies in 14 Geraldine and C.R.'s testimonies as compared to the testimonies of Anthony's current wife, daughter, and stepdaughter; the similar allegations from 2010 that were ruled as unfounded after a hearing on the merits; and the alleged offer to dismiss the order of protection in exchange for the termination of Anthony's parental rights. ¶ 31 The standard of proof in this proceeding is proof by a preponderance of the evidence. Best, 223 Ill. 2d at 348. Thus, this court may only reverse the trial court's factual finding of abuse where that finding was against the manifest weight of the evidence presented. Id. at 348-49. A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence presented. Id. at 350. ¶ 32 We cannot say that the trial court's determination to the contrary was unreasonable, arbitrary, or not based on the evidence presented. The trial court expressly resolved issues of credibility in favor of C.R., and noted its belief that Anthony's actions affected all three childrens' welfare. The evidence to which Anthony cites does not render the opposite conclusion clearly evident to this court. As a reviewing court may not substitute its judgment for the trial court concerning the credibility of the witnesses, the weight to be given to the evidence, or the inferences to be drawn (In re D.F., 201 Ill. 2d 476, 499 (2002)), we decline to find that the court's ruling is unsupported by the evidence. ¶ 33 Next, Anthony alleges that the court improperly allowed Geraldine to use the plenary order of protection as a vehicle to modify his right to visitation with his minor children, citing as evidence Geraldine's unsuccessful 2010 petition to modify visitation 15 and the offer to dismiss the order of protection in exchange for termination of the respondent's parental rights. Anthony cites Radke ex rel. Radke v. Radke, 349 Ill. App. 3d 264 (2004), for his contention that Geraldine used the Act to circumvent the requirements of section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/610(b) (West 2012)) for the modification of custody. We disagree. ¶ 34 We note initially that the restriction or denial of a respondent's visitation rights is a remedy under the Act. See 750 ILCS 60/214(b)(7) (West 2012) and infra ¶ 39. In Radke, the court held that "[o]btaining an order of protection is not the proper procedure for resolving child custody or visitation issues. Those issues should be resolved under the Illinois Marriage and Dissolution of Marriage Act." Radke, 349 Ill. App. 3d at 269. However, the Radke petitioner admitted that she had requested an order of protection to obtain visitation of the minor child, and not for the primary purpose of preventing abuse; therefore, the court found that the Act was not the appropriate vehicle for resolving that issue. Id. We find Radke distinguishable from this case, where Geraldine was seeking an order of protection based on abuse from Anthony, and any evidence of ulterior motive presented at this hearing was resolved against Anthony. The court ruled that Anthony had committed abuse, and its decision to deny visitation to Anthony was within the remedies available to victims of abuse under the Act. ¶ 35 Next, Anthony challenges the sufficiency of the trial court's findings, arguing that the court "made no findings under section 214(c)(3)" as required by the Act. He asserts the following: (1) that the only oral finding the court made was that it believed C.R.'s testimony was truthful, and that it affected her welfare and the welfare of E.A. and S.W., 16 (2) that the court made no oral or written finding about the nature, frequency, severity, pattern, and consequences of his alleged past abuse, (3) that the order failed to find that he abused Geraldine and the children, and (4) the order checked a box that Anthony is likely to "improperly conceal or detain the minor children" although there was no evidence of the same. ¶ 36 The court is required to make its findings in an official record or in writing and shall at a minimum set forth that the court has considered the relevant factors of section 214(c)(1) (which includes the nature, frequency, severity, pattern, and consequences of the past abuse and the likelihood of future abuse (see 750 ILCS 60/214(c)(3) (West 2012))); whether the conduct or actions of respondent, unless prohibited, will likely cause irreparable harm or continued abuse; and whether it is necessary to grant the requested relief in order to protect petitioner or other alleged abused persons. 750 ILCS 60/214(c)(3) (West 2012). ¶ 37 Admittedly, the form order entered by the trial court does not include a handwritten recitation of the court's oral statements, and the requisite statutory language was preprinted on the form order. However, the Act requires the court, at a minimum, set forth that it considered the appropriate factors, and this was accomplished here. The order states that the court had considered "all relevant factors, including, but not limited to the nature, frequency, severity, pattern, and consequences of Respondent's past abuse, neglect, or exploitation of Petitioner or any family/household member." Additionally, while the form order does not have a physical marking over the box regarding its finding that Anthony abused Geraldine and the minor children, the names are handwritten into 17 the appropriate line on the form. Finally, although the court indeed marked the box for denying Anthony visitation because he has or is likely to "improperly conceal or detain the minor child(ren)," we do not agree that this finding is unsupported by the evidence, or that it renders the trial court's findings incomplete. Accordingly, the trial court's findings met the statutory requirements. ¶ 38 Finally, Anthony asserts that the trial court erred in failing to provide for any type of restricted or supervised visitation to foster and preserve the parent-child relationship. We disagree. ¶ 39 Section 214(b)(7) of the Act allows the circuit court to determine the visitation rights, if any, of the respondent in any case in which the court awards the physical care or temporary legal custody of a minor child to the petitioner. 750 ILCS 60/214(b)(7) (West 2012). It states: "The court shall restrict or deny respondent's visitation with a minor child if the court finds that respondent has done or is likely to do any of the following: (i) abuse or endanger the minor child during visitation; (ii) use the visitation as an opportunity to abuse or harass petitioner or petitioner's family or household members; (iii) improperly conceal or detain the minor child; or (iv) otherwise act in a manner that is not in the best interests of the minor child." Id. ¶ 40 In this case, Anthony was denied visitation with the children. The court found that Anthony had committed abuse during the time that he had physical custody of the minor children; as we have discussed above, this finding was not against the manifest weight of the evidence. Pursuant to the statute, it was therefore within the trial court's discretion to 18 restrict or deny Anthony's visitation with his minor children. The trial court is in the best position to determine the appropriate remedy, as it can observe the witnesses and assess their credibility. In re Marriage of Blitstein, 212 Ill. App. 3d 124, 132 (1991). Accordingly, we conclude that the court did not err in failing to provide any type of restricted or supervised visitation. ¶ 41 For the foregoing reasons, the judgment of the circuit court of Johnson County is affirmed. ¶ 42 Affirmed.