Mowen v. Holland

783 N.E.2d 180, 336 Ill. App. 3d 368, 270 Ill. Dec. 605, 2003 Ill. App. LEXIS 29
CourtAppellate Court of Illinois
DecidedJanuary 15, 2003
Docket4-02-0507
StatusPublished
Cited by19 cases

This text of 783 N.E.2d 180 (Mowen v. Holland) 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
Mowen v. Holland, 783 N.E.2d 180, 336 Ill. App. 3d 368, 270 Ill. Dec. 605, 2003 Ill. App. LEXIS 29 (Ill. Ct. App. 2003).

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant, Christine E. Holland, f/k/a Christine E. Brown, appeals from a plenary order of protection entered by the circuit court of Brown County (No. 02 — OP—3) for the protection of Jessica L. Mo-wen (born December 30, 1995), the daughter of defendant and plaintiff, Bruce L. Mowen. The circuit court of Brown County, on its own motion, at the time of entering the plenary order, transferred this case to Adams County to be consolidated with Adams County case No. 97— F — 45. Christine’s husband, Russell Holland, also a defendant in this case, and intervenors Joyce Brown and Bernice Klinefelter, the maternal grandmother and great-grandmother of Jessica, are not parties to this appeal. The issues on appeal are whether (1) the trial court abused its discretion by admitting into evidence hearsay statements of a caseworker for the Department of Children and Family Services (DCFS), (2) the trial court allowed improper impeachment of defendant, (3) evidence was sufficient to support the imposition of the plenary order of protection, and (4) the trial court failed to make findings of fact in compliance with the controlling statute. We affirm.

On February 22, 2002, plaintiff filed in the circuit court of Brown County a petition pursuant to the Illinois Domestic Violence Act of 1986 (Act) (750 ILCS 60/101 through 401 (West 2000)). All proceedings related to this appeal were conducted in Brown County (Brown County case No. 02 — OP—3), concluding with the circuit court of Brown County denying defendant’s motion to reconsider on April 18, 2002. The cause was then transferred to and filed in the circuit court of Adams County on April 22, 2002 (Adams County case No. 02— OP — 74). Thereafter, on May 17, 2002, defendant filed her notice of appeal in Adams County.

The petition sought emergency and plenary orders (1) directing Russell Holland and defendant not to strike, harass, or abuse Jessica; (2) placing the physical care and custody of Jessica in plaintiff; (3) preventing defendants from removing the child from the state or concealing her from plaintiff; and (4) ordering Russell to stay at least 1,000 feet away from Jessica. The exhibits attached to the petition show that there had been disputes regarding custody and visitation in a paternity proceeding (Mowen v. Brown, Adams County case No. 97— F — 45) involving defendant making unfounded reports of plaintiff abusing Jessica, and plaintiffs belief that Russell faced criminal charges of sexual offenses perpetrated on Russell’s daughter, N.L.M. (born August 31, 1999). The trial court entered the emergency order on February 22, 2002. That order (1) restrained and prohibited defendants from harassing, interfering with personal liberty, intimidating, physically abusing, wilfully depriving, neglecting, exploiting, or stalking Jessica; (2) ordered them to stay away from Jessica; (3) granted plaintiff physical care and “possession” of Jessica; (4) ordered defendants not to remove the child from plaintiff; (5) directed that there be no visitation until further order of the court; (6) prohibited defendants from removing the child from the state and concealing her from plaintiff; (7) enjoined Russell from being within 1,000 feet of Jessica; and (8) authorized the temporary placement of Jessica in a school other than her current school. The emergency order was set to expire at 3:30 p.m. on March 15, 2002, and a hearing for an extension of the order was scheduled for 10 a.m. on March 8, 2002.

At the hearing, the trial court heard the testimony of defendant, plaintiff, and plaintiffs wife Robin Mowen. Russell invoked the fifth-amendment privilege against self-incrimination (U.S. Const., amend. V) and declined to testify. At the conclusion of the hearing, the trial court entered an order continuing the emergency order in full force and effect as a plenary order until February 22, 2003, but modified the order to allow defendant, her parents, and her grandparents to have visitation for eight hours on alternate Saturdays, with visitation to be arranged and supervised by DCFS.

Defendant, called as an adverse witness, testified that Russell had recently been in jail on allegations of sexual assault against his (Russell’s) daughter, who had been living with them. Defendant was familiar with DCFS caseworker Beth Wienhoff. Wienhoff had contacted defendant about the situation. Wienhoff told defendant that Russell and his daughter were not to be in the same household. The hearsay objection interposed by defendant’s counsel was overruled. According to defendant, Russell was arrested in the last week of February. Jessica was living in their house at that time. Defendant called Robin Mowen to arrange early visitation so defendant could bond Russell out of jail. A condition of the bond was that Russell have no contact with his daughter or Jessica. She bonded him out of jail on February 28, 2002. At the time of the hearing, Russell was living in the marital home, and defendant was staying with her parents. After Russell was released from jail, Wienhoff informed defendant that she was going to mail defendant a safety plan. Defendant had not received it, and Wienhoff did not tell her of its contents. Similarly, plaintiff was allowed to testify, over defendant’s hearsay objection, that Wienhoff provided him with the information, on the basis of which he sought the order of protection, and told him to seek the order of protection.

We initially address the propriety of the trial court’s ruling on defendant’s hearsay objection. The determination of the admissibility of evidence rests in the sound discretion of the trial court, and that determination will not be reversed on appeal absent an abuse of discretion. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 92, 658 N.E.2d 450, 454-55 (1995). Unless it falls within a recognized exception to the rule, hearsay, defined as an out-of-court statement offered to prove the truth of the matter asserted, is not admissible. Pavlik v. Wal-Mart Stores, Inc., 323 Ill. App. 3d 1060, 1064, 753 N.E.2d 1007, 1011 (2001).

In this case, plaintiff argued in the trial court, as he does in this court, that the statement of Wienhoff to defendant was not offered to prove the matter asserted by Wienhoff, but to establish that defendant had notice from DCFS of the no-contact requirement. Plaintiff cites no legal authority to support his contention. See Official Reports Advance Sheet No. 21 (October 17, 2001), Rs. 341(e)(7), (f), eff. October 1, 2001.

By definition, an out-of-court statement offered for a purpose other than for the truth of the matter asserted is not hearsay. People v. Reed, 108 Ill. App. 3d 984, 989, 439 N.E.2d 1277, 1280 (1982). See Halleck v. Coastal Building Maintenance Co., 269 Ill. App. 3d 887, 891, 647 N.E.2d 618, 623 (1995). An out-of-court statement may be offered to show personal knowledge otherwise established. See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 801.5, at 519 (4th ed. 1984).

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Bluebook (online)
783 N.E.2d 180, 336 Ill. App. 3d 368, 270 Ill. Dec. 605, 2003 Ill. App. LEXIS 29, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mowen-v-holland-illappct-2003.