People v. Kozin

FOURTH DIVISION
JUNE 30, 1998

No. 1--97--1728

THE PEOPLE OF THE STATE OF ILLINOIS,
ex rel.,

GWENA MINTEER,

Petitioner-Appellee,

v.

MARK KOZIN,

Respondent-Appellant.)
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)Appeal from the
Circuit Court of
Cook County

No. 97--D3--30228

Honorable
Charles Porcellino,
Judge Presiding.


PRESIDING JUSTICE CERDA delivered the opinion of the court:
This is an appeal from an order of protection that
petitioner, Gwena Minteer, obtained against respondent, Mark
Kozin. On appeal, respondent asserts that (1) there was
insufficient evidence to support the order of protection; (2) the
trial court erred by considering evidence from a prior ex parte
emergency hearing; and (3) the trial court erred by failing to
articulate any specific findings, as required by statute. For
the following reasons, we reverse.
On February 7, 1997, petitioner testified in an ex parte
emergency hearing that respondent was her ex-boyfriend.
Petitioner told the court that she met respondent two years
earlier and had dated him for three months. When petitioner
decided to end her relationship with respondent, he kept calling
her, kept going over to her house, stood outside her house
waiting for her to come home from work at 4 a.m., and got her
fired from her job by being a customer at her place of
employment. When petitioner found another job, respondent called
her there at least five or six times a day. For that, respondent
was arrested for telephone harassment, but the charges were
dismissed. Since that time, respondent followed petitioner home
from work "all the time" and left notes on her car almost every
day. In addition, petitioner had been told by friends that
respondent had gone to Heavenly Bodies, a club that petitioner
frequented, every week, and waited for her to arrive.
Based on petitioner's ex parte testimony, the trial court
issued an emergency order of protection against respondent from
February 7, 1997, through February 28, 1997.
At the court hearing on March 21, 1997, both petitioner and
respondent were present. Petitioner asked for an extension of
the order of protection. Prior to the hearing, the trial court
explained that when the previous trial judge signed the order of
protection, he found that petitioner had established a prima
facie case. Therefore, the trial court determined that the
burden of going forward shifted to respondent.
Petitioner, called by respondent as an adverse witness,
testified that she dated respondent on and off for a year. They
met in January 1995 at the Admiral Theater, a gentleman's club
where petitioner was employed as a dancer. The following month,
petitioner called respondent and began dating him. After
respondent bought petitioner a $3,100 diamond ring and several
other items, petitioner ended the relationship in May 1995.
Initially, she refused to return the ring, but eventually she
returned the ring to respondent in open court. Subsequently,
petitioner saw respondent at the Admiral Theater and was fired
because she was dating him, which was a violation of the club's
policy. At another club where petitioner worked, Crazy Horse II,
respondent was arrested for telephone harassment, but those
charges were eventually dismissed.
Petitioner testified that she called respondent in March
1996, went to dinner with him in April 1996, and went to a
riverboat and dinner with him in 1996, but petitioner did not
consider those dates. Petitioner also admitted that in the past,
she contacted respondent whenever she needed money or
companionship. Further, petitioner testified that respondent
never threatened her. Nevertheless, petitioner complained that
respondent left notes on her car on one occasion and was present
at a bar that petitioner frequented even though he did not say
anything to her.
Respondent, the owner of a temporary help agency, testified
that he met petitioner at a gentleman's club in February 1995.
Within a short time, they began dating, which lasted until July
1995. Respondent bought gifts for petitioner, including a
diamond ring. Petitioner called respondent in March 1996 at
which time she agreed to go to dinner with respondent. They
started dating again.
Respondent denied ever following petitioner home, leaving
notes on her car, or threatening her. Respondent further
testified that he was in a bar and restaurant, Dakota's, with
other people at the same time petitioner was present. Although
he saw petitioner, he did not speak to her or do anything to her.
Based on that evidence, the trial court found that
respondent failed to overcome the prima facie case established at
the earlier ex parte hearing. The court then entered a plenary
order of protection for a period of two years. Respondent was
ordered to not harass petitioner, interfere with petitioner's
personal liberty, or stalk petitioner.
On appeal, respondent asserts that the evidence presented at
the court hearing was insufficient to support the entry of an
order of protection. Respondent also asserts that the trial
court improperly considered evidence from the previous ex parte
emergency hearing and improperly held that the previous hearing
established a prima facie case for the petitioner, which created
an improper evidentiary burden for the respondent to overcome.
At the beginning of the court hearing for the plenary order
of protection, the trial court stated:
"[A]s I understand it, the law indicated that when
Judge Hoffenberg signed this [emergency] order of
protection, he found there was -- the petitioner had
established a prima facie case with regards to the
element of the statute. The burden of going forward
with the evidence shifts to [the respondent]."
After the testimony of petitioner and respondent, the trial
court ruled that respondent failed to overcome the prima facie
case established at the earlier ex parte hearing. At the close
of testimony, the court simply stated:
"The Court has heard had [sic] evidence in the case,
the testimony of the respective parties and finds the
respondent has failed to overcome the prima facie case
established in the record of this cause. There will be
a plenary order of protection for a period of two
years."
Petitioner responds that the trial court did not consider
any evidence adduced at the ex parte hearing until after
respondent opened the door to that consideration when he used the
ex parte hearing transcript to impeach petitioner, whom he called
to testify. Petitioner does not address the trial court's
determination that petitioner established her prima facie case
during the ex parte hearing and that respondent failed to
overcome the prima facie case.
The trial court used the incorrect standard of proof. In In
re Marriage of Gordon, 233 Ill. App. 3d 617, 632, 599 N.E.2d 1151
(1992), on which respondent relies, the trial court entered an ex
parte order of protection after finding that the mother had
committed physical abuse on the child. Subsequently, the trial
court heard six months of testimony to determine whether the
order of protection should be extended. In re Marriage of
Gordon, 233 Ill. App. 3d at 632. Following the end of the
evidence, the trial court shifted the burden to the mother on the
basis of the testimony heard during the ex parte hearing, then
found that she failed to negate the prima facie case established
during that hearing. In re Marriage of Gordon, 233 Ill. App. 3d
at 649. The trial court then extended the emergency order of
protection until further order of court. In re Marriage of
Gordon, 233 Ill. App. 3d at 649.
Since the order was essentially a custody order with no time
limit and the Domestic Violence Act explicitly states that
custody is not a remedy that may be granted under an emergency
order and plenary orders of protection must have a time limit,
the order was invalid on its face. In re Marriage of Gordon, 233
Ill. App. 3d at 646. Although the trial court judgment could
have been reversed on the grounds that the judge exceeded his
statutory authority and that the Domestic Violence Act was
misused, the appellate court declined to do so and considered
whether the judge's findings were against the manifest weight of
the evidence. In re Marriage of Gordon, 233 Ill. App. 3d at 648.
The appellate court ruled that it was improper for the trial
court to consider the evidence heard at the ex parte hearing and
to find that the mother failed to negate the father's prima facie
case. In re Marriage of Gordon, 233 Ill. App. 3d at 649-50. The
reviewing court explained that the Domestic Violence Act requires
that the petitioner prove abuse by a preponderance of the
evidence, not establish a prima facie case. In re Marriage of
Gordon, 233 Ill. App. 3d at 650.
The facts of this case are very similar to those of Gordon.
Accordingly, evidence during the ex parte hearing should not have
been considered to relieve petitioner of her burden of proving by
a preponderance of the evidence that respondent had abused her.
The trial court improperly determined that petitioner had
established a prima facie case through the evidence she presented
at the ex parte hearing, then compounded that error by finding
that respondent failed to overcome the prima facie case. That is
not the standard to be used. Instead, the court should have
considered only the evidence presented at the later hearing,
where both parties were present, before determining whether
petitioner met her burden of proving by a preponderance of the
evidence that respondent had abused her. Section 205(a) of the
Act, which sets out the standard to be used to obtain an order of
protection, provides in part:
"the standard of proof***is proof by a preponderance of
the evidence, whether the proceeding is heard in
criminal or civil court." 750 ILCS 60/205 (West 1994).
Based on the evidence presented at the hearing on the
plenary order of protection, we find that the court abused its
discretion when it entered the order of protection. 750 ILCS 60/
214(a)(West 1994); In re Marriage of Healy, 263 Ill. App. 3d 596,
602, 635 N.E.2d 666 (1994); In re Marriage of Lichtenstein, 263
Ill. App. 3d 266, 269, 637 N.E.2d 1258 (1994).
While this case rests on the credibility of the witnesses,
which is best left to the trier of fact to determine, we find
that the trial court abused its discretion in entering the
plenary order of protection because there was insufficient
evidence to prove by a preponderance of the evidence that
respondent had abused petitioner. The record shows that
petitioner complained that (1) respondent was at a bar that she
frequented even though he did not say anything to her; (2) she
saw respondent leave notes on her car on one occasion; and (3)
respondent was arrested for telephone harassment for telephoning
petitioner at her place of employment, but those charges were
dismissed. That is not sufficient evidence for an order of
protection. Even accepting the trial court's determination that
petitioner was a credible witness, she failed to prove her case
by a preponderance of the evidence.
Finally, respondent asserts that the order of protection
should be overturned because the trial court failed to articulate
specific findings on the record. We agree. Instead of making
any specific findings about the relevant factors, the court
simply stated at the close of testimony:
"The Court has heard had [sic] evidence in the case,
the testimony of the respective parties and finds the
respondent has failed to overcome the prima facie case
established in the record of this cause. There will be
a plenary order of protection for a period of two
years. There will be no harassment, no interference
with the personal liberty, and he'll be barred from
stalking."
Therefore, we reverse the entry of the order of protection
on the basis that the trial court failed to meet its statutory
obligation to make specific findings prior to entering an order
of protection under the Act. In re Marriage of Henry, No. 3--97-
-0537, slip op. at 7-8 (Ill App. Ct. June 4, 1998); In re
Marriage of Healy, 263 Ill. App. 3d 596, 602, 635 N.E.2d 666
(1994). Section 214(c) of the Act was amended in 1993 to provide
as follows:
"(1) In determining whether to grant a specific remedy,
other than payment of support, the court shall consider
relevant factors, including but not limited to the
following:
(i) the nature, frequency, severity, pattern and
consequences of the respondent's past abuse, neglect or
exploitation of the petitioner or any family or
household member, including the concealment of his or
her location in order to evade service of process or
notice, and the likelihood of danger of future abuse,
neglect, or exploitation to petitioner or any member of
petitioner's or respondent's family or household;
* * *
(3)***[T]he court shall make its findings in an
official record or in writing, and shall at a minimum
set forth the following:
(i) That the court has considered the applicable
relevant factors described in paragraphs (1) and (2) of
this subsection.
(ii) Whether the conduct or actions of respondent,
unless prohibited, will likely cause irreparable harm
or continued abuse.
(iii) Whether it is necessary to grant the
requested relief in order to protect petitioner or
other alleged abused persons." 750 ILCS 60/214(c)
(West 1994).
Healy, which was decided under the current statute,
distinguished In re Marriage of Hagaman, 123 Ill. App. 3d 549,
462 N.E.2d 1276 (1984), which was decided under a prior version
of the Act. The Hagaman court held that an order of protection
would not be reversed solely because the trial court failed to
make specific findings on the factors referenced in the statute.
In re Marriage of Healy, 263 Ill. App. 3d at 602.
Petitioner relies on Glater v. Fabianich, 252 Ill. App. 3d
372, 377, 625 N.E.2d 96 (1993), which relied on In re Marriage of
Hagaman, 123 Ill. App. 3d 549. The Glater court stated that a
trial court's failure to state specific findings on the record
does not require reversal.
Further, petitioner analogizes this case to In re Marriage
of McCoy, 253 Ill. App. 3d 958, 964, 625 N.E.2d 883 (1993), which
was decided under the current statute. We find this case to be
distinguishable from McCoy. Although the McCoy trial court's
written order could have contained more express findings, the
reviewing court concluded that the findings articulated by the
trial court comported with the minimum statutory requirements.
McCoy, 253 Ill. App. 3d at 965. The written findings stated that
the petitioner was an abused person as defined in the Act and
that the children were persons protected by the order of
protection while the oral record indicated that the court found
the evidence established the respondent to be a violent person
whom the petitioner had reason to fear and given the respondent's
attempts to circumvent the visitation orders previously entered,
it was proper to prevent him from contacting the children at
school. McCoy, 253 Ill. App. 3d at 965.
In this case, the trial court made no findings, oral or
written, regarding the relevant factors. Therefore, we also
reverse the entry of the order of protection on the basis that
the trial court failed to make the specific findings required by
the Act.
Based on the foregoing, we reverse the circuit court
judgment and vacate the order of protection.
Reversed.
McNAMARA, J., and SOUTH, J., concur.