In re Marriage of Evans

2021 IL App (5th) 200426-U

• Court: Appellate Court of Illinois
• Decided: May 26, 2021
• Docket: 5-20-0426
• Status: Unpublished

Opinion

NOTICE 2021 IL App (5th) 200426-U NOTICE Decision filed 05/26/21. The This order was filed under text of this decision may be NO. 5-20-0426 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for Rehearing or the disposition of IN THE limited circumstances allowed under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

In re MARRIAGE OF ) Appeal from the ) Circuit Court of BRIAN E. EVANS, ) St. Clair County. ) Petitioner-Appellant, ) ) and ) No. 19-D-250 ) THERESA M. EVANS, ) Honorable ) Tameeka L. Purchase, Respondent-Appellee. ) Judge, presiding. ________________________________________________________________________

PRESIDING JUSTICE BOIE delivered the judgment of the court. Justices Welch and Wharton concurred in the judgment.

ORDER

¶1 Held: In a father’s appeal from an expired order of protection that limited his parenting time with his children, the public interest exception to the mootness doctrine applied to the issues the father raised on appeal; the order of protection did not improperly include any claims that were barred under the doctrines of res judicata or collateral estoppel; the circuit court did not error in refusing to transfer the proceeding to the judge who entered the final judgment dissolving the parties’ marriage months earlier in the parties’ uncontested divorce; and the circuit court’s order of protection that temporarily limited the father’s parenting time was proper under the standards set out in the Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West 2018)) and was not against the manifest weight of the evidence.

1 ¶2 The petitioner, Brian E. Evans, and the respondent, Theresa M. Evans, amicably

ended their marriage in an uncontested divorce proceeding. The parties’ dissolution

judgement incorporated an agreed parenting plan in which Brian and Theresa equally

divided parenting time with their two minor children. Approximately four months later,

Theresa filed a petition seeking protection from Brian under the Illinois Domestic Violence

Act of 1986 (Domestic Violence Act) (750 ILCS 60/101 et seq. (West 2018)), for herself

and the parties’ two children. The circuit court entered a plenary order of protection that

limited Brian’s parenting time to supervised visitation. The circuit court limited the

duration of the order of protection to 90 days, during which time the parties were to return

to the domestic docket for a permanent resolution of their parenting time issues. Theresa

subsequently filed an emergency motion to modify the order of protection, and the circuit

court modified the plenary order of protection to temporarily suspend Brian’s parenting

time with one of the minor children for the duration of the 90-day order of protection. Brian

now appeals from the modified order of protection. For the following reasons, we affirm.

¶3 I. BACKGROUND

¶4 Brian and Theresa were married in May 2008 and had two children during their

marriage: A.E., who was born in 2015, and S.E., who was born in 2016. Brian and Theresa

ended their marriage on April 8, 2019, when the circuit court granted them an uncontested

divorce. Judge Stacy Campbell was assigned to preside over Brian and Theresa’s divorce

proceeding, and Judge Campbell entered an agreed judgment dissolving the parties’

marriage. Brian and Theresa’s marital dissolution included an agreement to share decision

making authority regarding their minor children and an agreement that each parent shall 2 have equal periods of parenting time. The agreed dissolution judgment incorporated the

terms of the parties’ agreement with respect to the allocation of their parental

responsibilities and incorporated the terms of an agreed parenting plan. The parties’

uncontested divorce did not include any allegations of abuse by either party.

¶5 In July 2020, the children attended the same daycare. On July 24, 2020, daycare

workers discovered purple and blue marks on S.E.’s backside. The director of the daycare

center asked A.E. how S.E. might have gotten the marks, and A.E. reported that Brian had

hit S.E. the prior evening for peeing on himself during Brian’s parenting time. The daycare

director called the Department of Children and Family Services (DCFS) who started an

investigation, and a caseworker called Theresa about the marks. The DCFS caseworker

also asked A.E. about the marks on S.E., and A.E. reported to the caseworker that Brian

hit S.E. when S.E. peed himself. According to the caseworker, A.E. reported that Brian

gave S.E. “lots of whoopings for peeing on himself.”

¶6 On July 27, 2020, in the divorce proceeding, Theresa filed an ex parte petition

seeking an emergency and plenary order of protection pursuant to the Domestic Violence

Act. Theresa’s petition alleged the incident in which the marks were discovered on S.E.’s

backside on July 24, 2020. Theresa also alleged that on another occasion in March 2020,

she noticed that S.E. had what appeared to be a slap mark on his back after spending time

with Brian. According to the allegations in Theresa’s petition, Brian claimed that he did

not know what happened to cause the slap mark, but Brian’s mother told Theresa that the

mark was caused by S.E. falling off a stool at an ice cream shop. According to Theresa,

however, the mark looked “suspicious.” 3 ¶7 In addition to these two incidents that occurred in July 2020, Theresa also alleged

incidents that occurred during the marriage involving Brian’s abuse directed at her. Those

incidents included an incident in 2018 during which Brian allegedly slammed Theresa

against a kitchen counter and an incident in 2018 during which Brian allegedly cornered

Theresa and shouted at her in front of the children, making her feel unsafe. Theresa alleged

that in late 2018, prior to their divorce, Brian stalked her at work and confessed to

“bugging” her car and phone when they were going through the divorce. Theresa alleged

that in 2016, Brian crashed his vehicle while intoxicated, ran into nearby woods, beat his

head against a tree so it would look like he was mugged, hid his phone and wallet in the

woods, and called the police to falsely report a mugging. Finally, Theresa alleged that in

2015, Brian went missing while intoxicated. He was found by police, returned home, and

Brian’s mother stayed with Brian to ensure Theresa’s safety.

¶8 Theresa appeared pro se in court on July 27, 2020, for a hearing on her request for

an emergency order of protection. Judge Tameeka Purchase presided over the emergency

hearing. At the hearing, Theresa testified that shared parenting time with Brian had been

“working fine until recent events.” She then testified about her telephone call with the

DCFS caseworker on July 24, 2020, regarding S.E.’s bruising, and presented the circuit

court with pictures of the bruising. She also testified about the hand mark on S.E.’s back

that she discovered on the prior occasion in March 2020 after S.E. had spent parenting time

with Brian. Theresa presented the circuit court with a picture of this bruising as well. The

circuit court described the pictures as follows: “There is a picture of [S.E.’s] back side

showing significant bruising on his buttocks and back and it looks like the shape of what 4 could be a handprint. It looks like three long bruising—bruises, as well as some bruises on

the lower back.”

¶9 The circuit court asked Theresa whether she had talked to Brian about the incident,

and Theresa testified that she was afraid to contact Brian until an order of protection was

in place. To establish the basis of her fear, Theresa testified about the incident during the

marriage when Brian allegedly slammed Theresa against the kitchen counter. The circuit

court asked Theresa whether she “thought about going back to the family court to modify

the parenting agreement,” and Theresa responded that her intention was to do so and to

modify their agreement immediately after she could talk with a lawyer.

¶ 10 At the conclusion of the hearing, the circuit court entered an emergency order of

protection. The emergency order of protection named Theresa and the minor children as

people protected by the order. The order gave Theresa physical care and possession of A.E.

and S.E., reserved Brian’s parenting time until a later hearing, and prohibited Brian from

having contact with the minor children. The circuit court scheduled an August 17, 2020,

hearing on Theresa’s request for a plenary order of protection.

¶ 11 After Theresa hired an attorney, Theresa filed pleadings pursuant to the Illinois

Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/101 et seq. (West

2018)) seeking a permanent modification of Brian’s parenting time as set out in the parties’

agreed parenting plan. Specifically, Theresa filed an emergency motion requesting that the

circuit court suspend Brian’s parenting time or, alternatively, ordering supervised parenting

time for Brian. In her petition, Theresa alleged the two 2020 bruising incidents as a

substantial change in circumstances justifying the requested modification in Brian’s 5 parenting time. Theresa also filed a separate petition requesting the circuit court to modify

the parties’ agreed parenting plan by awarding Theresa the majority of parenting time and

limiting Brian’s parenting time to supervised parenting time until further order of the court.

The pleadings Theresa filed under the Dissolution Act are not at issue in this appeal.

¶ 12 By agreement of the parties, Judge Purchase continued the emergency order of

protection to October 13, 2020, the date for the hearing on Theresa’s request for a plenary

order of protection. Without objection from Brian, Judge Purchase presided over the

October 13, 2020, hearing on Theresa’s request for protection under the Domestic Violence

Act. At the October 13, 2020, hearing, Theresa testified about the telephone call she

received from a DCFS caseworker on July 24, 2020, informing her of the marks found on

S.E. at daycare and telling Theresa to pick up A.E. and S.E. from daycare for their safety.

The court admitted the pictures of the marks on S.E.’s backside that Theresa took on July

24, 2020, after picking up the children from daycare.

¶ 13 Theresa testified that the July 24, 2020, incident was not the first time she was

concerned with possible physical abuse of one of the children and told the circuit court

about finding what appeared to be a slap mark on S.E.’s back in March 2020. Theresa

testified about discovering the mark when S.E. was getting ready for a bath after just having

returned from Brian’s care. The circuit court admitted a photograph of a picture Theresa

took of this mark on S.E.’s back as well as screen shots of texts Theresa exchanged with

Brian about the mark. According to Theresa, Brian’s mother told her that S.E. had fallen

off a stool while out for ice cream, but Theresa did not believe that the marks were

consistent with this type of accident. 6 ¶ 14 The director of the daycare center that S.E. and A.E. attended testified about

discovering the marks on S.E. on July 24, 2020. The director testified that she then talked

to A.E. and learned that Brian had spanked S.E. the previous day for peeing on himself.

The director then called the DCFS hotline. The director testified that the children continued

under her care at the daycare center after the incident and that she had not seen any further

bruising or injuries on the children.

¶ 15 Theresa acknowledged that DCFS investigated one of the teachers at the daycare

center for slamming S.E. against a cot, but the investigation came back as unfounded, and

the teacher later retired from the daycare center. In addition, Theresa noted that S.E. would

occasionally get bitten by other children while at the daycare. Theresa also told the court

that, prior to the divorce proceeding, Brian hacked one of her phones to gain information

from it and that he bugged her car to record her conversations inside the car. Theresa also

told the circuit court that Brian stalked her at her workplace during the divorce and recorded

her when she had no knowledge that he was doing so. According to Theresa, these activities

stopped in late 2018 before they decided they were getting divorced. Theresa speculated

that Brian’s deployment to Afghanistan with the military may be contributing to his

behaviors.

¶ 16 During Theresa’s direct testimony, her attorney asked her whether Brian had a

history of physical violence against her. Over Brian’s objection, the circuit court allowed

Theresa to testify about violent incidents that occurred during the marriage that were

alleged in her petition, including the incident in November 2018 when Brian allegedly

“slammed” Theresa against the kitchen counter. According to Theresa, A.E. witnessed the 7 incident and blamed himself for not protecting his mother. Theresa also recounted a history

of verbal abuse directed at her in front of the children during the marriage. Theresa testified

that during some of these incidents, she would call Brian’s mother or her parents to come

to the house for her safety and she would lock herself and the children in a room to get

away from Brian. Theresa told the court about incidents involving Brian’s alcohol abuse,

including the incident in 2016 when Brian allegedly wrecked his vehicle while driving

intoxicated and faked being mugged as a cover for the accident.

¶ 17 Theresa testified that, in addition to the petition for an order of protection, she had

also filed a motion to change the parenting plan in family court as well as a motion for the

appointment of a guardian ad litem in the family court proceeding. Theresa asked the circuit

court to enter at least an interim order of protection for 60 days to protect her and the

children but allowing Brian to have supervised parenting time until such time as she can

get her petition under the Dissolution Act heard in family court.

¶ 18 Brian’s mother, Edith Evans, testified about the incident in which S.E. fell off a

stool at an ice cream parlor in March 2020. Edith testified that she told Theresa when the

accident happened and told Theresa that S.E. could have hit his back when he fell although

she did not check for any injuries on his body, only his head. Theresa never told Edith that

she was suspicious about what happened during this March 2020 incident.

¶ 19 Brian testified that he never abused his children and did not have a drinking

problem. He stated that he was not present when A.E.’s accident happened in March 2020

and that Theresa never relayed any suspicions about the accident. He denied stalking

Theresa at work and denied hacking into her phone. With respect to the vehicle accident in 8 March 2016, Brian testified that his car keys and wallet were taken when he was mugged,

and that the assailant took his car and wrecked it. He denied shouting at Theresa or

slamming her against anything during their marriage. He did admit, however, to placing a

recording device in Theresa’s car while they were married to record her conversations with

other men. He did so because he suspected that she was cheating on him.

¶ 20 With respect to Brian’s visit with the children on July 23, 2020, Brian testified that

his mother picked up the children between 3:30 and 4 p.m. and that she returned the

children to Theresa’s house at 9 p.m. He testified that during this visit he spanked S.E.

three times with his hand for throwing a toy at his brother, for peeing himself and not saying

he needed to go to the bathroom, and for splashing water after being told to stop. According

to Brian, his spankings did not leave any bruises. Brian testified that he spanked both

children during the marriage in Theresa’s presence and that Theresa herself spanked one

of the children on at least one occasion. According to Brian, Theresa never told him not to

spank their children. At the time of the hearing, Brian had not seen the children since his

parenting time on July 23, 2020.

¶ 21 During his testimony, Brian agreed that supervised parenting time was the best

option while an investigation into S.E.’s bruising was ongoing. He agreed that his mother

could supervise his parenting time. Brian testified that he did not know who put the bruises

on S.E. but would like to find out. He did ask the circuit court to end the order of protection

and to allow Theresa’s petitions under the Dissolution Act to move forward.

¶ 22 At the conclusion of the hearing, Judge Purchase entered an order granting

Theresa’s request for a plenary order of protection. The circuit court found Theresa’s 9 testimony to be credible and found that her testimony established that physical abuse and

harassment had occurred. The circuit court stated, “I don’t believe, based on the testimony

that was put forth, that there’s a doubt that [S.E.] on the date in question received three, at

least three spankings” and that the spankings left significant bruising on S.E. which was

“too much.” The circuit court noted that Brian’s past harassment of Theresa included Brian

placing a recording device in Theresa’s vehicle and that Brian’s abuse included physical

abuse of S.E. The circuit court “considered the nature, severity, pattern and consequences”

of Brian’s past abuse and found that there was a likelihood of danger of future abuse

without a plenary order of protection in place. The circuit court granted Brian parenting

time during the day on weekends to be supervised by a family member but denied Brian

overnight parenting time while the plenary order of protection was in place.

¶ 23 Judge Purchase ordered the plenary order to be effective for only 90 days, just long

enough for the parties to have the opportunity to “get back into family court and deal with

this on a long-term basis.” The plenary order, therefore, expired on January 13, 2021. The

circuit court stated that it hoped by the end of the order, “the judge in family court can help

you to guide you towards a longer term solution to this issue.”

¶ 24 Eight days after the circuit court entered the plenary order of protection, on October

29, 2020, Theresa filed an emergency motion to modify the plenary order of protection.

Theresa alleged that the first weekend of Brian’s parenting time following the entry of the

plenary order of protection, A.E. “began exhibiting behavioral changes, including violent

outbursts, self-harm and suicidal statements” that culminated in his hospitalization on

October 25, 2020. According to Theresa, A.E.’s healthcare providers believed Brian’s 10 parenting time should be suspended until A.E. could be further evaluated for treatment. In

addition, Theresa alleged that Edith left S.E. alone with Brian in a vehicle unattended for

several minutes while she was supervising Brian’s parenting time.

¶ 25 On November 19, 20, and 25, 2020, Judge Purchase conducted a hearing on the

emergency motion to modify the plenary order of protection. At the beginning of the

hearing, Brian requested Judge Purchase to transfer the case to Judge Campbell, who, as

stated above, was the judge who was assigned to handle the parties’ dissolution case in

family court and who entered the agreed judgment for the dissolution of the parties’

marriage. Brian noted that Theresa had a motion under the Dissolution Act pending before

Judge Campbell that had not been noticed for hearing. The circuit court, however, denied

Brian’s request, holding that the order of protection case should not be transferred but

adding that Judge Campbell could modify the order of protection “as she sees fit as the

case comes before her.” Judge Purchase noted that the order of protection was only for 90

days and that the family court judge would have “ample time to make the final decisions

on parenting time between the parties.” Judge Purchase, therefore, proceeded to hear the

merits of Theresa’s motion to modify the plenary order of protection.

¶ 26 At the hearing, Theresa called Dr. Rahul Bansal, a child psychologist who had been

treating A.E. Dr. Bansal conducted his first evaluation of A.E on October 27, 2020. Dr.

Bansal opined that A.E.’s recent episodes were caused by “compulsivity and hyperactivity”

and that the primary diagnosis was attention deficit hyperactivity disorder (ADHD). A.E.’s

treatment plan included medications for mood stability, but at that time, the doctor did not

know how A.E. would respond to the medications. According to Dr. Bansal, A.E.’s visits 11 and telephone calls with Brian have been stressful for A.E. Accordingly, Dr. Bansal

recommended suspending A.E.’s visits and communication with Brian pending the

doctor’s comprehensive evaluation of A.E. The doctor also believed that some type of

therapy for A.E. was needed.

¶ 27 Theresa testified that Brian’s first parenting time with the children following the

entry of the plenary order of protection occurred on October 16, 2020. In addition, the

children also had some FaceTime visits with Brian after entry of the order of protection.

According to Theresa, after these visits, A.E.’s “behavior drastically started to change”

including aggressive behavior and “meltdowns at least every other day.” Theresa testified

that prior to Brian’s parenting time on October 25, 2020, A.E. became very aggressive

about not wanting to go and made suicidal statements. Theresa, therefore, called 9-1-1 and

took A.E. to the hospital. Theresa explained that it required medications and a team of

doctors and nurses to calm A.E. down. According to Theresa, the staff at the hospital

recommended a hold on Brian’s visits until it could be determined what was causing A.E.’s

behavioral changes. Theresa told the circuit court that she was asking the court to put a

hold on Brian’s visits with A.E until a guardian ad litem could be appointed and the matter

addressed in family court.

¶ 28 Brian testified that for his first visit with his children after the entry of the plenary

order of protection, his mother, Edith, picked up the children from Theresa, and he spent

approximately two hours with the children before he had to go to work. He told the court

that the children ate and played around and that neither A.E nor S.E. appeared distressed.

According to Brian, the children hugged him and had a good time during his supervised 12 parenting time. Brian testified that he had one FaceTime visit with the children following

the entry of the plenary order, during which he interacted with A.E. and S.E. for 30 minutes.

He described it as a “good interaction” and stated that neither child cried during the

interaction nor seemed distressed. According to Brian, A.E. was excited to show Brian his

new book bag. Brian testified that he did not know that anything was wrong with his

parenting time until the next Saturday when Edith showed up to pick up the children and

was told that Theresa had gone to the hospital with A.E.

¶ 29 Edith also testified that the children were excited to see Brian during Brian’s first

supervised parenting time following the entry of the plenary order of protection. According

to Edith, the children were “not at all” in distress before the visit. Edith explained that,

during the parenting time, Brian played with the children and “nothing was out of order at

all.” Both A.E. and S.E. played with Brian, and Edith did not witness any reaction from the

children that indicated either child was afraid or apprehensive about their visit with Brian.

According to Edith, when leaving, the children were excited to come back and see Brian

again the following week.

¶ 30 At the conclusion of the hearing, the circuit court noted that the case started with an

incident during which Brian’s spanking of S.E. resulted in significant bruising. With

respect to A.E., the circuit court stated that A.E. witnessed the incident in which Brian

shoved Theresa against a kitchen counter, which constituted “intimidation of a dependent.”

The circuit court then noted that shortly before Brian resuming his parenting time, A.E.

exhibited medical symptoms, including suicidal ideation and aggression, since the entry of

the plenary order of protection. The circuit court, therefore, suspended Brian’s parenting 13 time with A.E. for the duration of the order of protection but added that the order was

“modifiable by a family court.” The circuit court did not modify Brian’s parenting time

with S.E., finding that having the parenting time supervised ensured that there would be no

physical violence toward S.E. In addition, the circuit court allowed Brian to continue with

phone visits if A.E. wanted to continue to participate in those visits. The court allowed

Brian to be present for A.E.’s appointments with Dr. Bansal with the hope that Dr. Bansal

would assist in reintroducing Brian to A.E. In modifying Brian’s parenting time, the circuit

court emphasized that A.E.’s health and his well-being superseded all other considerations.

Brian now appeals from the circuit court’s modified plenary order of protection.

¶ 31 II. ANALYSIS

¶ 32 In creating the Domestic Violence Act, the Illinois legislature recognized that

domestic violence is “a serious crime against the individual and society” and that “the legal

system has ineffectively dealt with family violence in the past, allowing abusers to escape

effective prosecution or financial liability.” 750 ILCS 60/102(1), (3) (West 2018).

¶ 33 The Domestic Violence Act provides for three types of orders of protection:

emergency (id. § 217), interim (id. § 218), and plenary (id. § 219). The present case

concerns a plenary order of protection. Section 219 of the Domestic Violence Act provides

that a plenary order of protection “shall issue” if the petitioner has, among other things,

satisfied the requirements of section 214 of the Domestic Violence Act. (Emphasis added.)

Id. § 219. Section 214 of the Domestic Violence Act, in turn, provides that “[i]f the court

finds that petitioner has been abused by a family or household member *** an order of

protection prohibiting the abuse *** shall issue.” (Emphasis added.) Id. § 214. The 14 Domestic Violence Act defines “abuse” as “physical abuse, harassment, intimidation of a

dependent, interference with personal liberty or willful deprivation but does not include

reasonable direction of a minor child by a parent or person in loco parentis.” Id. § 103(1).

¶ 34 On appeal, Brian argues that, in entering a plenary order of protection under the

Domestic Violence Act, the circuit court improperly considered testimony of incidents that

occurred prior to the judgment for the dissolution of the marriage, which was entered on

April 8, 2019. Brian argues that evidence of those past incidents (incidents occurring prior

to April 8, 2019) should have been barred by res judicata or collateral estoppel. Brian also

argues that Judge Purchase erred in denying his request to transfer the case under the

Domestic Violence Act to Judge Campbell, who was assigned to handle the divorce case

on the domestic relations docket. In addition, Brian argues that the circuit court applied the

incorrect standard for restricting his parenting time.

¶ 35 A. Mootness

¶ 36 The first issue we must address is the mootness of Brian’s appeal. The plenary order

of protection from which Brian appeals expired on January 13, 2021, before the merits of

Brian’s appeal could be heard before this court. Therefore, we must first determine whether

we should decline to review the issues presented on appeal pursuant to the mootness

doctrine.

¶ 37 “An issue raised on appeal becomes moot when the issue no longer exists due to

events occurring after the filing of appeal that make it impossible for the appellate court to

grant effective relief.” Benjamin v. McKinnon, 379 Ill. App. 3d 1013, 1020 (2008).

However, “[a] case that is considered moot may still be subject to review if it involves a 15 question of great public interest.” Whitten v. Whitten, 292 Ill. App. 3d 780, 784 (1997).

Illinois courts have held that, even after the expiration of an order of protection renders

issues raised on appeal “formally moot,” the issues nonetheless can be reviewable “under

the public-interest exception to the mootness doctrine.” Benjamin, 379 Ill. App. 3d at 1020;

see also Whitten, 292 Ill. App. 3d at 784 (holding that the Domestic Violence Act addresses

“a grave societal problem” and involves matters of public interest). The factors relevant to

the public interest exception are: (1) the public nature of the question, (2) the desirability

of an authoritative determination for the purpose of guiding public officers, and (3) the

likelihood that the question will generally recur. In re A Minor, 127 Ill. 2d 247, 257 (1989).

¶ 38 Brian argues that his appeal should not be dismissed as moot because it involves a

matter of public concern. Brian notes that this case involves the ability of the circuit court

to enter orders concerning the allocation of parenting time in proceedings under the

Domestic Violence Act when there is also a petition under the Dissolution Act pending on

the domestic relations docket. Theresa takes no position with respect to whether Brian’s

appeal of the plenary order of protection is moot. We agree that the Domestic Violence Act

addresses issues of great public interest and that its purposes can only be accomplished if

the courts properly apply the statutory requirements. See Whitten, 292 Ill. App. 3d at 784.

Therefore, we agree with Brian that the public interest exception to the mootness doctrine

applies in this case, and we will address the merits of his appeal.

¶ 39 B. Res Judicata and Collateral Estoppel

¶ 40 Next, Brian argues that the circuit court improperly considered evidence of incidents

that occurred prior to the parties’ uncontested divorce which was finalized on April 8, 2019. 16 Brian argues that allegations of incidents that occurred prior to the uncontested divorce

were barred by res judicata and collateral estoppel.

¶ 41 The res judicata doctrine reflects a public policy favoring finality in litigation and

judicial economy. Pfeiffer v. William Wrigley Jr. Co., 139 Ill. App. 3d 320 (1985).

“Res judicata is separated into two distinct doctrines: (1) true res judicata, which is known

as ‘claim preclusion,’ and (2) collateral estoppel, which is known as ‘issue preclusion.’ ”

Hayes v. State Teacher Certification Board, 359 Ill. App. 3d 1153, 1161 (2005). Although

res judicata and collateral estoppel are different, they serve same purpose, i.e., “promoting

judicial economy and preventing repetitive litigation.” Id.

¶ 42 1. Res Judicata (Claim Preclusion)

¶ 43 There are three requirements for res judicata to apply: (1) there must be a final

judgment on the merits rendered by a court of competent jurisdiction, (2) there must be an

identity of cause of action, and (3) there must be an identity of parties or their privies. Rein

v. David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996). “The doctrine of res judicata provides

that a final judgment on the merits rendered by a court of competent jurisdiction bars any

subsequent actions between the same parties or their privies on the same cause of action.”

Id. Furthermore, res judicata serves to bar “ ‘all matters that were offered to sustain or

defeat the claim in the first action, as well as all matters that could have been offered for

that purpose.’ ” Hayes, 359 Ill. App. 3d at 1161. Finally, we note that the party that seeks

to invoke the doctrine of res judicata bears the burden of proof. Cload v. West, 328 Ill.

App. 3d 946, 950 (2002). In the present case, that party is Brian.

17 ¶ 44 There is no dispute that Brian established element number three because Brian and

Theresa were the same parties in both the marital dissolution case filed under the

Dissolution Act and in the proceedings at issue in this appeal under the Domestic Violence

Act. In addition, with respect to the first element, the dissolution case resulted in a final

judgment on the merits rendered by a court of competent jurisdiction as it relates to Brian’s

parenting time. However, Brian has failed to establish the second element of res judicata,

i.e., identity of cause of action.

¶ 45 In determining whether there is an identity between the causes of action, it is well

established that “separate claims will be considered the same cause of action for purposes

of res judicata if they arise from a single group of operative facts, regardless of whether

they assert different theories of relief.” (Internal quotation marks omitted.) Doe v. Gleicher,

393 Ill. App. 3d 31, 37 (2009).

¶ 46 Here, the uncontested divorce under the Dissolution Act and Theresa’s request for

an order of protection under the Domestic Violence Act do not arise from a single group

of operative facts. As Theresa points out in her arguments before this court, the divorce

proceedings were uncontested, and the circuit court entered an agreed order approving the

parties’ agreement with respect to a parenting plan that included equal parenting time for

both parents. The parties submitted their agreed parenting plan within four days of Brian

filing the petition for dissolution of the marriage, and there was no litigation of any issues

relating to the best interests of the parties’ minor children. The parties deemed the parenting

plan to be in the best interests of their children, and the circuit court approved the parenting

plan based on the parents’ agreement concerning the best interests of their children. None 18 of the terms of the uncontested divorce concerned whether either party (Theresa or Brian)

was abused by the other during the marriage.

¶ 47 Under the Domestic Violence Act, “abuse” is defined as “physical abuse,

harassment, intimidation of a dependent, interference with personal liberty or willful

deprivation.” 750 ILCS 60/103(1) (West 2018). “Physical abuse” includes “knowing or

reckless use of physical force.” Id. § 103(14). The facts surrounding the incident resulting

in S.E.’s bruising after being spanked by Brian arose after the uncontested divorce was

finalized. Accordingly, it was impossible for Theresa to raise any issues stemming from

this abuse during the divorce proceeding even if there had been litigation in the divorce

proceeding over abuse. Therefore, the circuit court’s protection of S.E. does not encompass

any res judicata concerns whatsoever.

¶ 48 In addition, with respect to A.E., one of the purposes of the Domestic Violence Act

is to protect children from exposure to conflict and violence. Mowen v. Holland, 336 Ill.

App. 3d 368, 375 (2003). The circuit court concluded that A.E. needed protection under

the Domestic Violence Act after the court found that A.E. had been subject to “intimidation

of a dependent.” Subjecting a child to “the witnessing of[ ] physical force against another”

constitutes intimidation of a dependent (750 ILCS 60/103(10) (West 2018)) and therefore

falls within the definition of “abuse” under the Act (id. § 103(1)). In addition, as noted

above, under the Domestic Violence Act, “[i]f the court finds that petitioner has been

abused by a family or household member *** an order of protection prohibiting the abuse

*** shall issue.” (Emphasis added.) Id. § 214.

19 ¶ 49 Here, Theresa presented evidence that, during the marriage, A.E. witnessed Brian

shoving Theresa against a counter. In addition, Theresa presented evidence that after the

circuit court entered the judgment dissolving the marriage, A.E. witnessed Brian’s abuse

of S.E. when S.E. was spanked multiple times to the point of bruising during Brian’s

parenting time of both children. A.E. explained what happened to S.E. to Theresa, the

director of the daycare center, and the DCFS caseworker. This incident involving

additional exposure of A.E. to conflict and violence occurred after the divorce proceeding

and constitutes an additional incident of intimidation of a dependent that could not have

been raised in the divorce proceeding. The evidence suggests that the spanking incident

witnessed by A.E. amplified A.E.’s fears and emotional trauma and resulted in A.E.

needing hospitalization and treatment by a child psychologist. Therefore, the protection of

A.E. in the plenary order of protection does not violate the res judicata doctrine as the two

proceedings are not and could not be based on the same operative facts as they relate to

A.E. The res judicata doctrine simply does not prohibit the circuit court from protecting

A.E. from intimidation of a dependent under the Act merely because some facts that

establish the need for the protection occurred prior to his parents’ uncontested divorce.

¶ 50 The circuit court was obviously concerned with protecting A.E. and S.E. from

abuse. Given the summary nature of the parents’ uncontested divorce, we believe the circuit

court properly exercised caution in refusing to apply res judicata in a way that would

preclude the circuit court from protecting the children from abuse based on facts that had

never been presented to the court by the parties and could not have been presented at the

time of the divorce. Much of the facts surrounding the children’s abuse occurred after the 20 divorce case and after the parents had agreed upon a parenting plan. Therefore, the circuit

court ruled correctly in rejecting Brian’s request to apply the res judicata doctrine to deny

protection of the children under the Domestic Violence Act.

¶ 51 Finally, with respect to evidence of Brian’s abuse of Theresa during the marriage,

the abusive nature of the relationship between Brian and Theresa was not at issue during

the uncontested divorce proceeding. Accordingly, the operative facts of the uncontested

divorce under the Dissolution Act and the operative facts of the proceedings under the

Domestic Violence Act are not the same as they relate to Brian’s abuse of Theresa. Brian’s

abuse of Theresa was not a matter that was or could have been offered to sustain or defeat

any of Theresa or Brian’s claims for support or marital property in the uncontested divorce

action. Theresa and Brian’s divorce judgment, marital settlement agreement, and parenting

plan focused only on what they believed to be the best interests of their children at the time;

they did not raise or address any abuse that occurred strictly between themselves during

the marriage. Therefore, the purpose of Theresa’s petition under the Domestic Violence

Act was not to seek another opportunity to litigate the same claims against Brian, but

instead her purpose was to ensure the safety of herself and her children in light of the events

that arose after the dissolution of the marriage. Accordingly, under the facts of this case,

res judicata does not operate to prohibit the circuit court from entering a plenary order of

protection naming Theresa as a protected person in the order.

¶ 52 Furthermore, as Theresa notes in her brief, section 214 of the Domestic Violence

Act requires the circuit court to consider the frequency and pattern of abuse in determining

whether to grant an order of protection. 750 ILCS 60/214(c)(1)(i) (West 2018). Here, in 21 granting the plenary order of protection, the circuit court expressly followed this statutory

requirement, stating that it considered the nature, severity, pattern, and consequences of

the recent abuse and the past abuse in determining the likelihood of danger of future abuse.

Based on this relevant evidence, the circuit court found that “the action of [Brian], unless

prohibited, will likely cause irreparable harm or continued abuse,” making a plenary order

of protection necessary. The circuit court, therefore, ruled correctly in admitting evidence

of abuse that occurred during the marriage and in considering that evidence in determining

whether to enter a plenary order of protection that included Theresa as a protected person.

¶ 53 2. Collateral Estoppel (Issue Preclusion)

¶ 54 Collateral estoppel “promotes fairness and judicial economy by preventing the

relitigation of issues that have already been resolved in earlier actions.” Du Page Forklift

Service, Inc. v. Material Handling Services, Inc., 195 Ill. 2d 71, 77 (2001). Collateral

estoppel applies when a party participated in two separate and consecutive cases arising

out of the same cause of action and some controlling factor or question material to the

determination of both cases has been adjudicated by a court of competent jurisdiction

against the party in the former suit. Stathis v. First Arlington National Bank, 226 Ill. App.

3d 47, 53 (1992). The following elements are required to establish collateral estoppel:

“(1) the issue decided in the prior litigation is identical to the one presented in the

current case, (2) there was a final adjudication on the merits in the prior case, and

(3) the party against whom estoppel is asserted was a party to, or in privity with a

party to, the prior litigation.” Pine Top Receivables of Illinois, LLC v. Transfercom,

Ltd., 2017 IL App (1st) 161781, ¶ 8. 22 Defensive use of collateral estoppel involves a defendant who seeks to prevent a plaintiff

from asserting a claim the plaintiff has previously litigated and lost. In re Owens, 125 Ill.

2d 390, 397 (1988); Sampson v. Cape Industries Ltd., 229 Ill. App. 3d 943, 949 (1992).

¶ 55 Brian’s collateral estoppel argument fails because there was no adjudication of any

abuse claims in the uncontested divorce proceeding. “For collateral estoppel to apply, a

decision on the issue must have been necessary for the judgment in the first litigation, and

the person to be bound must have actually litigated the issue in the first suit.” Talarico v.

Dunlap, 177 Ill. 2d 185, 191 (1997); see also In re Marriage of Connors, 303 Ill. App. 3d

219, 227 (1999).

¶ 56 In addition, even where the threshold elements of the collateral estoppel doctrine

are satisfied and an identical common issue is found to exist between a former and current

lawsuit, collateral estoppel must not be applied to preclude parties from presenting their

claims or defenses unless it is clear that no unfairness results to the party being estopped.

Kessinger v. Grefco, Inc., 173 Ill. 2d 447, 467-68 (1996); see also Van Milligan v. Board

of Fire & Police Commissioners, 158 Ill. 2d 85, 96 (1994); Richter v. Village of Oak Brook,

2011 IL App (2d) 100114, ¶ 25.

¶ 57 Here, fairness requires Theresa to have the opportunity to seek an order of protection

under the Domestic Violence Act following the events that have occurred since the parties’

uncontested divorce. Collateral estoppel simply does not apply in this case to prevent the

circuit court from entering an order under the Domestic Violence Act to protect Theresa

and the children from Brian’s abuse.

23 ¶ 58 C. Denial of Brian’s Request to Transfer the Matter From the Domestic Violence Docket to the Domestic Relations Docket

¶ 59 Next, Brian argues that the circuit court erred in denying his request to transfer the

proceedings under the Domestic Violence Act to the judge who presided over their

uncontested divorce. We disagree.

¶ 60 Illinois Supreme Court Rule 903 (eff. Mar. 8, 2016) provides that “[w]henever

possible and appropriate, all child custody and allocation of parental responsibilities

proceedings relating to an individual child shall be conducted by a single judge.”

(Emphasis added.) In creating this one-judge rule, our supreme court has expressed a

preference for the same judge to hear all proceedings involving child custody and the

division of parental responsibilities. In re Z.J., 2020 IL App (2d) 190824, ¶ 66. Likewise,

section 212 of the Domestic Violence Act provides that a “petition for an order of

protection shall be treated as an expedited proceeding, and no court shall transfer or

otherwise decline to decide all or part of such petition except as otherwise provided herein.”

750 ILCS 60/212(a) (West 2018). Section 212 of the Domestic Violence Act further

provides for discretionary transfer as follows:

“Any court or a division thereof which ordinarily does not decide matters of child

custody and family support may decline to decide contested issues of physical care,

custody, visitation, or family support unless a decision on one or more of those

contested issues is necessary to avoid the risk of abuse, neglect, removal from the

state or concealment within the state of the child or of separation of the child from

the primary caretaker. If the court or division thereof has declined to decide any or

24 all of these issues, then it shall transfer all undecided issues to the appropriate court

or division.” (Emphasis added.) Id. § 212(b).

¶ 61 Brian also directs our attention to the local rules of the Circuit Court of the

Twentieth Judicial Circuit. Local rule 8.05(A) provides: “Petitions for emergency orders

of protection shall generally be heard by the judge assigned to the Domestic Violence

Courtroom. Petitions for emergency orders of protection shall be heard promptly and need

not be scheduled in advance.” 20th Judicial Cir. Ct. R. 8.05(A) (Oct. 2017). Also,

subsection (B) of local rule 8.05 states: “It is the goal of this circuit to have all proceedings

related to a child(ren) conducted by a single judge where possible.” 20th Judicial Cir. Ct.

R. 8.05(B) (Oct. 2017).

¶ 62 In the present case, when Brian filed the petition for the dissolution of the parties’

marriage, the presiding judge of family division assigned the dissolution case to Judge

Stacy Campbell. Four days later, Judge Campbell entered an agreed judgment of

dissolution of the marriage that incorporated Theresa and Brian’s marital settlement

agreement. Judge Campbell also entered an agreed order allocating parental responsibilities

and incorporating the parties’ agreed parenting plan. There was no contested litigation

concerning the minor children before Judge Campbell.

¶ 63 Theresa filed her petition under the Domestic Violence Act approximately four

months after Judge Campbell granted the uncontested divorce. Theresa filed her petition in

the underlying divorce case. In her petition, Theresa requested an emergency order to

protect herself and the minor children. On the same day she filed her petition, Theresa

appeared pro se before Judge Tameeka Purchase and testified about the allegations of 25 abuse alleged in her petition. Judge Purchase granted Theresa’s request for an emergency

order of protection. Theresa then filed a petition in the divorce proceeding to permanently

modify Brian’s parenting time pursuant to the Dissolution Act. At the time Judge Purchase

entered the emergency order of protection, there was nothing pending before Judge

Campbell under the Dissolution Act.

¶ 64 After Brian was served with a copy of Theresa’s petition and the emergency order

of protection, his attorney entered an appearance but did not immediately request a transfer

of Theresa’s petition to Judge Campbell. Instead, Brian agreed to two continuances that

extended Judge Purchase’s emergency order of protection to October 13, 2020, the date in

which the parties agreed to hear Theresa’s request for a plenary order of protection before

Judge Purchase.

¶ 65 At the October 13, 2020, hearing, without objection from Brian, Judge Purchase

heard testimony from Theresa, Brian, Brian’s mother, and the director of the children’s

daycare relevant to Theresa’s allegations of abuse as alleged in her petition. Based on this

evidence, Judge Purchase granted Theresa’s request for a plenary order of protection

naming Theresa, A.E., and S.E. as persons protected by the order. Judge Purchase

recognized the supreme court’s preference for the same judge to hear all proceedings

involving child custody and the division of parental responsibilities. Judge Purchase,

therefore, limited the duration of the plenary order of protection to only 90 days, which

Judge Purchase stated would provide protection to Theresa, A.E., and S.E, until the parties

had “the opportunity to get back into family court to deal with this on a long-term basis.”

26 ¶ 66 Accordingly, in the present case, no party made any request to transfer the domestic

violence proceeding until after the parties appeared before Judge Purchase and litigated

Theresa’s claim to a final judgment, without objection to Judge Purchase presiding over

the proceeding. Brian did not make a transfer request until he again appeared in front of

Judge Purchase on November 19, 2020, for a hearing on Theresa’s emergency motion to

modify the plenary order of protection.

¶ 67 Accordingly, it was only after Judge Purchase heard lengthy testimony and ruled

against Brian on the merits of Theresa’s petition that Brian then requested the matter to be

transferred to Judge Campbell. Under these facts, Judge Purchase was well within her

discretion to deny the late transfer request. At the time Brian made the transfer request,

Judge Purchase was the only judge that had conducted any evidentiary hearings on any

issues concerning the best interests of the minor children. The purpose of the one-judge

rule is to protect children “who might bounce from household to household based on

inconsistent, but legally correct, rulings founded on separate legislative enactments

construed by different judges presiding in separate courtrooms.” In re G.P., 385 Ill. App.

3d 490, 502 (2008). That danger is not present when Judge Campbell had not litigated any

issues prior to Judge Purchase presiding over the proceedings under the Domestic Violence

Act. In addition, Theresa’s attorney represented to Judge Purchase that Judge Campbell

was not available to hear the matter sooner than Judge Purchase’s availability.

¶ 68 Under the circumstances of this case, Judge Purchase was the proper judge to hear

Theresa’s request for relief under the Domestic Violence Act, including the emergency

motion to modify the plenary order of protection. Judge Purchase was faced with 27 allegations of potential abuse of minor children that required immediate protection, and

Judge Purchase acted properly to protect the children. The Domestic Violence Act, the

supreme court rules, and the local rules cited by Brian give the circuit court discretion in

deciding when a transfer is appropriate. In cases involving minor children, the safety and

welfare of the minor children are paramount in making this decision. Theresa’s allegations

of abuse presented the circuit court with a matter of urgency that involved the safety and

welfare of minor children. Under these facts, Judge Purchase simply did not abuse her

discretion in protecting the children by entering the original plenary order of protection and

in modifying the plenary order of protection after denying Brian’s untimely transfer

request.

¶ 69 Furthermore, in granting the order of protection, Judge Purchase made it very clear

that while she was ruling on temporary changes to Brian’s parenting time in the plenary

order of protection, the order was for limited duration (90 days) and subject to modification

by Judge Campbell in the family division when the parties had the opportunity to appear

before Judge Campbell. Judge Purchase’s ruling, therefore, complies with the letter and

spirit of the one-judge rule set out by the supreme court in Rule 903. After modifying the

plenary order of protection, Judge Purchase instructed the parties that any further filings

would be heard by Judge Campbell, who would make any permanent modifications to

parenting time that are in the children’s best interests. Accordingly, we conclude that Judge

Purchase committed no error in presiding over the proceedings under the Domestic

Violence Act under the circumstances presented here.

28 ¶ 70 D. Whether the Circuit Court Applied the Correct Standard in Temporarily Restricting Brian’s Parenting Time

¶ 71 Finally, Brian argues that the circuit court applied the incorrect standard in

restricting his parenting time. Again, we disagree.

¶ 72 The Domestic Violence Act instructs the circuit court, as the trier of fact, to

determine whether the persons seeking to be protected under the statute have been abused.

750 ILCS 60/205(a) (West 2018). The petitioner must prove her allegations by a

preponderance of the evidence. Id. When the circuit court makes a factual finding, we defer

to the circuit court’s finding unless the finding is against the manifest weight of the

evidence. Best v. Best, 358 Ill. App. 3d 1046, 1053 (2005). A factual finding is against the

manifest weight of the evidence if the opposite conclusion is clearly evident or the finding

is unreasonable, arbitrary, or without basis in the evidence presented. Id. at 1054. We will

not substitute our judgment for the trial court’s regarding the credibility of witnesses, the

weight it should have given to the evidence, or the inferences it should have drawn. Id. at

1055.

¶ 73 As stated above, the Domestic Violence Act requires the circuit court to issue an

order of protection if the court finds that a petitioner has been abused by a family or

household member. 750 ILCS 60/214(a) (West 2018). The available remedies under the

Domestic Violence Act include allocation of the physical care and possession of minor

children needing protection and temporary allocation of parental responsibilities and

parenting time. Id. § 214(b). If the circuit court finds that the respondent has committed

29 abuse of a minor child, there is a rebuttable presumption that awarding the physical care of

the minor to the respondent would not be in the child’s best interest. Id. § 214(b)(5).

¶ 74 Section 214(b)(5) of the Domestic Violence Act provides:

“In order to protect the minor child from abuse, neglect, or unwarranted separation

from the person who has been the minor child’s primary caretaker, or to otherwise

protect the well-being of the minor child, the court may do either or both of the

following: (i) grant petitioner physical care or possession of the minor child, or both,

or (ii) order respondent to return a minor child to, or not remove a minor child from,

the physical care of a parent or person in loco parentis.” Id.

¶ 75 Section 214(b)(7) of the Domestic Violence Act requires the circuit court to

“restrict or deny respondent’s parenting time 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 parenting time; (ii) use the parenting time 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. § 214(b)(7).

Furthermore, section 214(b)(7) of the Domestic Violence Act provides that, in determining

remedies under the statute, the “court shall not be limited by the standards set forth in

Section 603.10 of the Illinois Marriage and Dissolution of Marriage Act.” Id.; see 750 ILCS

5/603.10 (West 2018) (providing for restricting and modifying parental responsibilities

under the Dissolution Act).

30 ¶ 76 Here, the circuit court specifically found that abuse of A.E. and S.E. occurred and

was likely to continue without an order of protection in place. Accordingly, when the

circuit court entered the original plenary order of protection, the court properly restricted

Brian’s parenting time to only supervised parenting time on a temporary basis in order to

protect A.E. and S.E. from further abuse. This remedy was proper under the terms of the

Domestic Violence Act set out above.

¶ 77 At the hearing on Theresa’s emergency motion to modify the plenary order of

protection, the circuit court considered additional evidence of emotional trauma

experienced by A.E., and the circuit court then properly denied Brian parenting time with

A.E., again on a temporary basis, to allow A.E.’s care providers to assess A.E.’s issues and

until such time as Judge Campbell could hear and determine Theresa’s motion to modify

Brian’s parenting time on a permanent basis under the provisions of the Dissolution Act.

Again, the paramount focus in temporarily modifying Brian’s parenting time as set out in

the original plenary order of protection and in the modified plenary order of protection was

protecting A.E.’s and S.E.’s best interests. The language of the Domestic Violence Act

authorizes the remedies handed down by the circuit court in the orders of protection, and

the trial court’s findings support the remedies it awarded in entering these orders. We

cannot find that the circuit court’s findings were against the manifest weight of the

evidence, and we, therefore, cannot reverse the orders based on those findings.

¶ 78 The circuit court found Theresa to be credible, and the circuit court considered

additional testimony from the director of the children’s daycare center as well as the

psychologist who was treating A.E. following A.E.’s breakdown stemming from Brian’s 31 scheduled parenting time. The court considered the nature, severity, pattern, and

consequence of Brian’s actions and found a likelihood of further abuse without invoking

the protections afforded by the provisions of the Act. After conducting three separate

evidentiary hearings under the Domestic Violence Act, the circuit court was in the superior

position to evaluate the credibility, temperaments, personalities, and capabilities of both

Theresa and Brian. See In re Marriage of Balzell¸ 207 Ill. App. 3d 310, 314 (1991).

¶ 79 Theresa and the director of the daycare center both testified about the severity of the

bruising on S.E.’s backside, and Brian admitted to spanking S.E. three times the day before

the bruising was discovered. Although Brian denied causing the bruising, the circuit court

considered the testimony of the witnesses as well as pictures showing the extent of the

bruising. Nothing in the record allows us to conclude that the circuit court’s findings were

against the manifest weight of the evidence, and we must, therefore, affirm the circuit

court’s modified order of protection.

¶ 80 III. CONCLUSION

¶ 81 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 82 Affirmed.