In Re Marriage of Munger

791 N.E.2d 573, 339 Ill. App. 3d 1104, 274 Ill. Dec. 481, 2003 Ill. App. LEXIS 717
CourtAppellate Court of Illinois
DecidedJune 6, 2003
Docket4-02-0937
StatusPublished
Cited by10 cases

This text of 791 N.E.2d 573 (In Re Marriage of Munger) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Munger, 791 N.E.2d 573, 339 Ill. App. 3d 1104, 274 Ill. Dec. 481, 2003 Ill. App. LEXIS 717 (Ill. Ct. App. 2003).

Opinions

JUSTICE APPLETON

delivered the opinion of the court:

Catherine and Thurman Hunger, husband and wife, filed petitions for orders of protection against one another. They had a daughter in day care. After an evidentiary hearing on the two petitions, the trial court granted Catherine’s petition and denied Thurman’s petition. In its order of protection, the trial court awarded temporary custody of the child to Catherine and allowed Thurman the right to visit the child.

Afterward, Thurman filed a petition for a rule to show cause, complaining that Catherine had frustrated the visitation provisions in the order of protection. The trial court dismissed the petition for a rule to show cause but ordered that Thurman’s visits with the child would henceforth be unsupervised. Catherine appeals, arguing that by eliminating the supervision of visitation, the trial court modified the order of protection sua sponte, without a written motion to do so or prior notice to her. Thurman has filed no brief. Nevertheless, the record is simple, and we can easily decide the issues in this appeal without an appellee’s brief. See First Capitol Mortgage Corp. v. Talandis Construction Co., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976). Catherine’s brief finds support in the record and points to prima facie reversible error. See Talandis, 63 Ill. 2d at 133, 345 N.E.2d at 495.

Catherine argues that the lack of (1) a written motion to modify the protective order, and (2) advance written notice to her are fatal to the trial court’s modification of its protective order. We affirm the trial court’s judgment.

I. BACKGROUND

The order of protection allowed Thurman to visit the child only “while [the] child [was] at [Daydreams] [D]aycare[,] with 48[-]hour advance written notice to the day[ ]care and [Catherine,] or as agreed in writing by the parties through counsel.” Thurman was to stay at least 500 feet from Catherine and — except when visiting the child at Daydreams Daycare — the same distance from the child, too.

On September 17, 2002, Thurman filed his petition for a rule to show cause, alleging that Catherine had disenrolled the child from Daydreams Daycare without telling him she was going to do so or letting him know where he could visit the child.

According to an order entered on October 4, 2002, the “[p]arties appear[ed] with counsel in [an] attempt to renegotiate visitation. By agreement, [Thurman could] have visitation[,] as arranged through [a] private visitation supervision service or [as] otherwise agreed [to] by the parties, of at least [two] days every other week.”

On October 11, 2002, the trial court held an evidentiary hearing on Thurman’s petition for a rule to show cause. Thurman testified that on September 6, 2002, Daydreams Daycare told him the child was no longer enrolled there. This news came as a surprise to Thurman. His attorney called Catherine’s attorney and learned that the child was now enrolled in the day care at Blessing Hospital, where Catherine worked. The order of protection expressly forbade Thurman from entering that hospital (except in a medical emergency or — with advance notice to Catherine — for routine treatment or to visit a patient). As a consequence, he was deprived of opportunities to visit his daughter. Thurman’s attorney asked him:

“Q. Are you asking the [c]ourt to consider doing away with the supervised visitations?
A. Yes, sir.”

Catherine took the stand and admitted removing the child from Daydreams Daycare and enrolling her in Blessing Daycare. She had done so because Blessing Daycare’s hours of operation better fit her unpredictable work schedule.

In his closing argument, Thurman’s attorney told the trial court: “As a remedy, I’m asking the [c]ourt to revisit the question of supervised visitation or, in the alternative, I’m asking the [cjourt to allow my client’s parents to supervise.”

An order entered on October 16, 2002, says:

“Cause comes on for hearing on contempt petition. All parties present and with counsel. Petition to [s]how [clause is dismissed. Effective [nunc pro tunc] 10/11/02, the previous [ojrder of [protection [is] hereby modified as follows:
Thurman Hunger is no longer required to have supervised visitation. Thurman Hunger is granted visitation for three six[-]hour visits per week[,] to be arranged between [Thurman] Hunger’s mother and Catherine Hunger. One visit shall be on Saturday or Sunday. Neither party shall make unreasonable demands or restrictions on times or places for visitation.
By agreement, possession of the former marital home at 4400 State Street, Quincy, IL, is awarded to Thurman Hunger. All previous orders remain in effect.” (Emphasis added.)

When Catherine’s attorney asked the trial court to explain why visitations no longer needed to be supervised, the trial court said: “[T]he reason why I’m not making [visitations] supervised is we had a workable solution set up and your client sabotaged it, so now we are going to do whatever we have to do so the father can visit with the child and that I’m satisfied that the child’s safety is not compromised.”

This appeal followed.

II. ANALYSIS

When a party appeals the modification of an order of protection, we will ask whether the trial court abused its discretion. In re Marriage of Fischer, 228 Ill. App. 3d 482, 489, 592 N.E.2d 604, 608 (1992). The trial court abused its discretion only if its decision was “clearly against logic.” State Farm Fire & Casualty Co. v. Leverton, 314 Ill. App. 3d 1080, 1083, 732 N.E.2d 1094, 1096 (2000). The question is not whether we would have made the same decision if we were the trial court. Leverton, 314 Ill. App. 3d at 1083, 732 N.E.2d at 1096. Rather, the question is whether the trial court made an arbitrary decision, without using conscientious judgment, or whether, in view of all of the circumstances, the trial court overstepped the bounds of reason, ignored the law, and thereby caused substantial prejudice to the appellant. Leverton, 314 Ill. App. 3d at 1083, 732 N.E.2d at 1096.

With that deferential standard of review in mind, we consider Catherine’s argument. The protective order allowed Thurman to visit the child only “while [the] child [was] at [Daydreams] [D]aycare[,] with 48[-]hour advance written notice to the day[ ]care and [Catherine,] or as agreed in writing by the parties through counsel.” (Emphasis added.) Pursuant to the protective order, the parties agreed, in writing, that Thurman could “have visitation[,] as arranged through [a] private visitation supervision service or [as] otherwise agreed [to] by the parties, of at least [two] days every other week.” Clearly, when the parties renegotiated visitation, they did so under the aegis of the protective order, which remained in force.

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In Re Marriage of Munger
791 N.E.2d 573 (Appellate Court of Illinois, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
791 N.E.2d 573, 339 Ill. App. 3d 1104, 274 Ill. Dec. 481, 2003 Ill. App. LEXIS 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-munger-illappct-2003.