Opinion
No. 1-18-0657
05-24-2019
PHILLIP KEEFE, Petitioner-Appellee, v. MARIANNA PONIEDZIELSKA, Respondent-Appellant.
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 Cook County.
No. 15 OP 76197
Honorable Judith C. Rice, Judge, presiding.
JUSTICE HARRIS delivered the judgment of the court.
Presiding Justice Delort and Justice Connors concurred in the judgment.
ORDER
¶ 1 Held: We affirm the denial of respondent's motion to dismiss the plenary order of protection filed against her because, in the absence of a record of proceedings, we assume the denial was in conformity to law and the findings were based on evidence presented.
¶ 2 Respondent Marianna Poniedzielska appeals, pro se, from a March 23, 2018, circuit court order denying her motion to dismiss a plenary order of protection entered against her and in
favor of petitioner Phillip Keefe. Petitioner has not filed a responsive brief. We affirm the denial of respondent's motion to dismiss the plenary order of protection because the record on appeal does not include a report of proceedings.
¶ 3 The record on appeal, which does not include a report of proceedings, shows that, on September 28, 2015, petitioner filed a petition for an emergency "Stalking No Contact Order" against respondent that was in effect until a hearing on the matter. On November 30, 2015, a hearing was held, and the court issued a plenary civil no contact stalking order. The order was in effect until November 30, 2017. On December 14, 2015, respondent filed a motion to reconsider the order, which the court denied.
¶ 4 On November 13, 2017, petitioner filed a motion to extend the plenary civil no contact order for an additional two years. On November 27, 2017, the court extended the order to November 27, 2019. On November 30, 2017, respondent filed a motion to vacate the no contact order, which the court denied on December 22, 2017.
¶ 5 On January 12, 2018, respondent filed a motion to dismiss the December 22, 2017 order. The court denied her motion on January 24, 2018.
¶ 6 On March 12, 2018, respondent filed a motion to dismiss the no contact order. The court denied the motion on March 23, 2018, and respondent filed a notice of appeal on March 28, 2018.
¶ 7 On August 30, 2018, respondent filed her opening brief requesting this court to dismiss the plenary order of protection.
¶ 8 On March 18, 2019, we entered an order to take the case for consideration on the record and respondent's brief only since petitioner did not file a brief. See First Capitol Mortgage Corp.
v. Talandis Construction Corp., 63 Ill. 2d 128, 131-33 (1976) (setting forth the principles for the disposition of appeals in cases where the appellee has not filed a brief).
¶ 9 Before turning to the merits of respondent's contentions, we must first determine if we have jurisdiction to hear this appeal. Hamilton v. Williams, 237 Ill.App.3d 765, 772 (1992) ("[a]n appellate court is under a duty to consider its jurisdiction and to dismiss an appeal if jurisdiction is lacking").
¶ 10 Illinois Supreme Court Rule 307 (a)(1) (eff. Nov. 1, 2016) allows for the appeal from an interlocutory order "granting, modifying, refusing, dissolving, or refusing to dissolve or modify and injunction." An order of protection is injunctive in substance. In re T.H., 354 Ill. App. 3d 301, 308 (2004); In re Marriage of Fischer, 228 Ill. App. 3d 482, 486 (1992). A motion to vacate a protective order is considered one seeking to dissolve or modify an injunction. Fischer, 228 Ill. App. 3d at 488-89; In re Marriage of Sanchez, 2018 IL App (1st) 171075, ¶ 34. Here, respondent filed her notice of appeal within 30 days of the denial of her motion to dismiss the plenary no contact order, therefore, we have jurisdiction to hear respondent's appeal under Rule 307 (a)(1). See Marriage of Sanchez, 2018 IL App (1st) 171075, ¶ 34.
¶ 11 That said, the purpose of appellate review is to evaluate the record presented in the trial court and review must be confined to what appears in the record. People v. Canulli, 341 Ill. App. 3d 361, 367-68 (2003). The appellant has the burden of presenting a sufficiently complete record to support her claim of error and any doubts arising from the incompleteness of the record will be resolved against her. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984). Matters not properly in the record or presented to the trial court will not be considered on review. Jenkins v. Wu, 102 Ill. 2d 468, 483-84 (1984). Where the record is incomplete or does not demonstrate the alleged
error, a court of review will not speculate as to what errors may have occurred below. Foutch, 99 Ill. 2d at 391-92. In the absence of a complete record, the reviewing court must indulge in every reasonable presumption favorable to the judgment and will presume that the trial court's judgment conformed with the law and had a sufficient factual basis. Id. It is well settled that a pro se litigant "must comply with the same rules of procedure required of attorneys" and "this court will not apply a more lenient procedural standard to pro se litigants than is generally allowed attorneys." Harvey v. Carponelli, 117 Ill. App. 3d 448, 451 (1983).
¶ 12 In this case, respondent is appealing from the March 23, 2018, trial court order denying her motion to dismiss petitioner's plenary order of protection against her. While respondent has included that order in the record on appeal, she has failed to include a transcript of the proceedings or a bystander's report from that day or any other day that a hearing on any of her motions was held. This includes the transcript of the proceedings on the date the plenary stalking no contact order was first issued. In the absence of a complete record, we will not speculate as to what occurred in the trial court. Foutch, 99 Ill. 2d 389, 391-92 (1984).
¶ 13 In addition to respondent's failure to provide this court with a complete record, her pro se brief fails to comply with several requirements of Illinois Supreme Court Rule 341 (Ill. S. Ct. R. 341 (eff. Nov. 1, 2017)). This rule "governs the form and content of appellate briefs." McCann v. Dart, 2015 IL App (1st) 141291, ¶ 12. Without outlining all of the shortcomings of respondent's brief we point out specifically that her brief fails to comply with subsections (h)(6) and (h)(7) of Supreme Court Rule 341.
¶ 14 Subsection (h)(6) of Rule 341 requires the appellant's brief to contain a statement of facts necessary for this court to have an understanding of the case. Respondent is required to cite to
the pages and volume of the record she is referring "so that we are able to assess whether the facts which (the appellant) presents are accurate and a fair portrayal of the events in this case." In re Marriage of Hiluska, 2011 IL App (1st) 092636, ¶ 58; Ill. S. Ct. R. 341 (h)(6) (eff. Nov. 1, 2017). Although respondent has filed her brief with a statement of facts, she makes no reference to page numbers from the record. More importantly, it is virtually impossible to discern what happened in respondent's case as her brief is incomprehensible. Without a report of proceedings and a cogent brief, it is almost impossible to discern what respondent is alleging.
¶ 15 Respondent also fails to cite to any pertinent legal authority to support her arguments on appeal. See Gandy v. Kimbrough, 406 Ill. App. 3d 867, 875 (2010) (this court is not a depository in which the burden of argument and research may be dumped); People v. Hood, 210 Ill. App. 3d 743, 746 (1991) ("A reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository into which the appealing party may dump the burden of argument and research."); Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017). Respondent seemingly has an issue with petitioner over the ownership of the property listed in the plenary no contact order but a careful review of the record provided and respondent's brief fail to shed light on what those issues are or why we should reverse the circuit court's ruling.
¶ 16 "[A] decision as to whether to dissolve an injunctive order is reviewed for an abuse of discretion." In re Marriage of Sanchez, 2018 IL App (1st) 171075, ¶ 35 (citing Debrowski v. Shred Pax Corp., 45 Ill. App. 3d 891, 899 (1977)). Respondent has not presented this court with a complete record nor a coherent brief that would allow us to make that determination. Therefore, we must presume the trial court's order denying respondent's motion to dismiss the plenary no contact order was in conformity with the law and based on the evidence presented. In
re Marriage of Sanchez, 2018 IL App (1st) 171075, ¶ 37; Watkins v. Office of the State Appellate Defender, 2012 IL App (1st) 111756, ¶ 19. Accordingly, we affirm the denial of respondent's motion to dismiss the plenary order of protection.
¶ 17 For the reasons stated, we affirm the denial of respondent's motion to dismiss the plenary order of protection.
¶ 18 Affirmed.