No. 3--01--0356

_________________________________________________________________

							IN THE

							APPELLATE COURT OF ILLINOIS

							THIRD DISTRICT

							A.D., 2002 

BELINDA PECK,					)	Appeal from the Circuit Court,

	)	of the 10th Judicial Circuit,

	Plaintiff-Appellee,	)	Peoria County, Illinois

					)	

	v.						)	No. 01--OP--243

							)	

KEVIN OTTEN,	)	Honorable

                                )	Erik Blanc

	Defendant-Appellant.	)	Judge, Presiding

_________________________________________________________________

	JUSTICE HOMER delivered the opinion of the court:

_________________________________________________________________

	The defendant, Kevin Otten, appeals from the entry of a

plenary order of protection against him obtained by his ex-wife,

Belinda Peck, on behalf of their minor son, Cory.  On appeal, he

argues that the trial court's finding of "abuse" was against the

manifest weight of the evidence and an abuse of the court's

discretion.  We affirm in part, reverse in part and remand.    

	FACTS

	The parties were divorced in August 1995.  During their

marriage, they had one son, Cory, born in December of 1988.  At

the time of their divorce, the parties agreed to joint custody of

Cory with Belinda being the residential parent.  A stipulated

modification order was entered in March 2000 in which Kevin and

Belinda agreed to joint custody of Cory with Kevin being the

residential parent.  

	On March 12, 2001, Belinda filed a petition for an order of

protection on behalf of Cory, alleging that Kevin had abused

Cory.  Specifically, the petition claimed that: (1) Kevin has

been coming home drunk and destroying Cory's personal belongings;

and (2) Kevin grabbed Cory after he had been drinking.  An

emergency order of protection was granted that same day.

	A plenary order of protection hearing was held on

April 2, 2001.  According to the bystander's report, the evidence

at the hearing showed that on March 8, Kevin told Cory that he

was going out at approximately 8 p.m. and instructed Cory to

clean the house and finish his homework.  Kevin returned home

around 12:30 a.m.  He had been drinking.  When he arrived home,

he discovered that Cory had not cleaned the house or completed

his homework.  Kevin awakened Cory.  In his anger, Kevin grabbed

a pool cue that he had given Cory and broke it.  He told Cory

that if he did not have time to do his homework and the

housework, he did not need to be playing pool.  

	Cory testified that his father would often not come home

from work but instead would go to the tavern right after work.

Cory also stated that his father "would always wake him up when

he came home from drinking and would break things and throw

things." 

	The trial court found that Kevin committed abuse and entered

a plenary order of protection prohibiting Kevin from having any

contact with Cory.  The order did not specify a termination date.

	ANALYSIS

	Initially, we note that an appellee's brief was not filed in

this case.  However, since the record is simple and the issue can

be decided without an appellee's brief, we will address Kevin's

issue on the merits.  See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).  

	On appeal, Kevin argues that the protective order was not

supported by the evidence or, in the alternative, was an abuse of

the trial court's discretion.

	Although there is some support for utilizing the manifest

weight standard of review, most appellate courts review findings

of abuse under an abuse of discretion standard.  Wilson v. Jackson, 312 Ill. App. 3d 1156, 1165, 728 N.E.2d 832, 839 (2000).  An abuse of discretion occurs when no reasonable person would

take the view adopted by the court.  Wilson, 312 Ill. App. 3d at 1165, 728 N.E.2d at 839.

	The Illinois Domestic Violence Act of 1986 (Act) (750 ILCS

60/101 et seq. (West 2000)) provides that protective orders may be entered against persons who have abused a minor child in their

care.  750 ILCS 60/201(b)(i) (West 2000).  The Act's definition

of "abuse" includes physical abuse, harassment, or intimidation

of a minor child but does not include the "reasonable direction

of a minor child by a parent."  750 ILCS 60/103(1) (West 2000).  

	Following our careful review, we find that the trial court

did not abuse its discretion in finding that Kevin's conduct constituted "abuse."  We believe that a reasonable person could

conclude that Kevin's treatment of Cory was "abuse" because it

constituted "harassment" as defined by the Act.    

	"Harassment" is defined as "knowing conduct which is not

necessary to accomplish a purpose that is reasonable under the

circumstances; would cause a reasonable person emotional

distress; and does cause emotional distress" to the child.  750

ILCS 60/103(7) (West 2000).  We conclude that Kevin's actions

were unnecessary and of such a nature to cause a reasonable

person to feel emotional distress and did in fact cause 12-year

old Cory to feel emotional distress.  In fact, immediately after Kevin awoke Cory and broke his pool cue, Cory called his mother

and asked for her to pick him up. 

	Significantly, the evidence showed that this was not an

isolated incident.  The bystander's report indicates that Cory

stated that his father "would always wake him up when he came

home from drinking and would break things and throw things." 

Such conduct is sufficient to justify a finding of abuse.  

	Even though there is no indication that Kevin's actions

created an immediate risk of physical harm to Cory, they still

constituted "abuse."  There need not be any physical acts of

violence in order for actions to constitute "harassment" under

the Act.  In re Marriage of Healy, 263 Ill. App. 3d 596, 599-600, 635 N.E.2d 666, 669 (1994).  Consequently, we affirm the trial

court's finding of abuse and hold that the trial court properly

issued a plenary order under the Act.  750 ILCS 60/214(a) (West

2000). 

	However, we conclude that the trial court abused its

discretion by entering a plenary order without a termination date

that prohibited Kevin from having any contact with his son. 

Section 220 of the Act provides that a plenary order of

protection shall be valid for a fixed period of time, not to

exceed two years.  750 ILCS 60/220 (West 2000).  When a court

does not state a termination date, the order automatically

expires in two years.  Gasaway v. Gasaway, 246 Ill. App. 3d 531, 537, 616 N.E.2d 610, 614 (1993).  Under the circumstances here,

where Kevin is completely deprived of any contact with his son

for two years, we conclude that the trial court should have set a

reasonable limit on the duration of the order or fashioned a less

severe remedy that would protect Cory while still allowing Kevin

to retain some kind of relationship with his son.  	

	Section 214(b) of the Act provides remedies that can be

included in an order of protection, such as counseling and

structured visitation.  750 ILCS 60/214(b) (West 2000).  We remand so that the trial court can issue an order of protection  with a reasonable duration or with appropriate conditions that will not deprive Kevin of all contact with his

son.          

	For the foregoing reasons, the judgment of the circuit court

of Peoria County is affirmed in part, reversed in part and

remanded.

	Affirmed in part, reversed in part and remanded. 

BRESLIN, J., cuoncuredred.

	No. 3--01--0356, Peck v. Otten

JUSTICE HOLDRIDGE, dissenting:

	The majority’s attempt to justify an order of protection

against Kevin evokes the observation of Professor Harold Hill in

the popular musical, The Music Man: “We’ve got trouble--right

here in River City--with a capital ʻTʼ--and that rhymes with ʻPʼ-- and that stands for Pool!”  The evidence of record does not

support the majority’s finding that Kevin committed abuse by

harassment when he broke Cory’s pool cue.

	First, I believe Kevin’s conduct falls within the statutory

exception for “reasonable direction of a minor child by a

parent.”  750 ILCS 60/103(1) (West 2000).  Kevin was providing

direction when he awakened Cory and broke the pool cue.  The

object of his action was to instill in Cory the importance of

homework and household chores vis-a-vis recreational activities.  There is no evidence that he struck, or even touched, Cory.  His

action reflects a desire to teach an important lesson in a

memorable manner without causing harm--arguably a lesson lless expensive

lesson than enrolling Coreyy in a community band! .  The action was

reasonable.

	Second, the statutory definition of “harassment” requires

conduct that “would cause a reasonable person emotional

distress[,] and does cause emotional distress to the petitioner.” 

750 ILCS 60/103(7) (West 2000).  I seriously question whether

Kevin’s conduct would cause a reasonable person to suffer

emotional distress.  In any event, however, the record contains absolutely no evidence that Cory actually suffered emotional distress.

	The majority relies essentially on its own conclusory

statements to support its contrary finding.  Indeed, the majority

only musters one evidentiary fact in its analysis--Cory’s

statement that Kevin “would always wake him up when he came home

from drinking and would break things and throw things.”  That

fact does not even address how Cory felt about Kevin’s conduct. 

How then can the majority conclude that Cory was emotionally

distressed?  The conclusion is wholly unsubstantiated by the

evidence of record.

	Regardless of how one personally feels about Kevin’s

conduct, he should not be subjected to an order of protection

unless the State proves every element of its case.  Since the

State failed to do so here, I respectfully dissent.