Frank v. Hawkins, 4-07-0192.

Citation383 Ill.App.3d 799,891 N.E.2d 522
Decision Date26 June 2008
Docket NumberNo. 4-07-0192.,4-07-0192.
PartiesJames FRANK, Petitioner-Appellee, v. Brent D. HAWKINS, Respondent-Appellant.
CourtUnited States Appellate Court of Illinois

Justice MYERSCOUGH delivered the opinion of the court:

In January 2007, petitioner, James Frank, filed a petition for an emergency order of protection on behalf of his children, Donovan and Hayli Frank, requesting that the trial court enter the order against respondent, Brent D. Hawkins, who shared a common household with petitioner's children. The court entered an emergency order of protection. In February 2007, the court entered a plenary order of protection (order) against respondent. Respondent appeals the entry of the order. We affirm entry of the order but remand with directions that the order be corrected on its face.

I. BACKGROUND

In January 2007, petitioner filed a petition for an emergency order of protection on behalf of his children, Donovan Frank, age 14, and Hayli Frank, age 10. In the form petition, petitioner checked the box indicating that the relationship between the children and respondent was "shared/common dwelling." An attachment indicated that the petition for the emergency order of protection stemmed from an incident that occurred late at night on December 21, 2006, at the home of Donovan, Hayli, their mother Ronette Frank (Ronette), and respondent. Respondent allegedly destroyed the Christmas tree, broke many items in the house, and threatened to kill the family pets. The petition also alleged that the children were frightened of respondent. Additionally, the petition stated that respondent had other orders of protection against him which he had violated, he had previous battery charges on his record, and he had pleaded guilty to domestic battery of Ronette in 2000.

On January 3, 2007, petitioner appeared for an ex parte hearing on the petition for an emergency order of protection. He testified that respondent was Ronette's boyfriend and Ronette was the mother of Donovan and Hayli. The trial court entered an emergency order of protection. The form order indicated that the petition was being brought by petitioner on behalf of the "[c]hild(ren) as noted on page 6, [p]art C of this order." The jurisdiction section of the form order indicated that the persons protected by the order were "[m]inor child(ren) who are so identified on page 6 of 11, [p]art C of this order" and that the court had jurisdiction over the minor children. The general findings section of the form order indicated that "[t]he [r]espondent has abused the [p]etitioner and/or the child(ren) so identified in [p]art C (page 6 of 11) of this order and/or the protected person(s)." No names are written in part C of the order. Summons was served on respondent on January 3, 2007. The summons reflected the action was brought on behalf of Donovan Frank and Hayli Frank.

In February 2007, a hearing was held to determine whether a plenary order of protection would be entered. Respondent testified that up until entry of the January 2007 emergency order of protection, he had lived at 708 East Van Buren with Ronette, Donovan, and Hayli. Respondent acknowledged that previously three orders of protection had been entered against him by three different people. Respondent did not recall having pleaded guilty to three violations of orders of protection. He acknowledged that he had pleaded guilty to a 2000 domestic battery committed against Ronette. Respondent did not believe the children had been present when he had battered Ronette. Respondent denied ever holding a knife to Ronette's throat. He admitted he had a misdemeanor theft conviction.

On December 21, 2006, respondent stopped by a bar on his way home from work. Ronette was not home when he arrived home. She and the children arrived home several hours later. Respondent was asleep on the couch when they got home and claimed he stayed asleep the rest of the evening. They did not speak that night because he was asleep.

Respondent denied he "trashed" the upstairs (main floor) of the house. Respondent claimed he fell into the Christmas tree while he was trying to get his change jar off the mantel behind the tree. Respondent slipped in the cords, tried to grab the tree to catch himself, and the tree fell apart. Respondent admitted he was a "little upset" by the tree falling. Respondent knocked over the television. The television fell onto a vase and broke it. Respondent did not pick up anything because he was tired and it was a big mess. He planned to pick it up the next day. Respondent denied smashing the dishes and dishware in the kitchen.

Respondent called Ronette's grandmother's house around 10:30 or 11 p.m., but Ronette was not there. Respondent denied that he threatened to kill the pit bull dog that night. He admitted having done so on a previous occasion three or four weeks before December 21, 2006.

Respondent denied having "trashed" the basement of the house that evening. Respondent denied having destroyed anything when Ronette and the children were there. He stated that the only thing that was broken was the vase and that the tree had been knocked over. Respondent denied yelling at, swearing at, or threatening the children that night. Respondent stated he had never laid a hand on Donovan or Hayli.

Ronette testified that her address was 708 East Van Buren, Decatur, Illinois. She is the mother of Donovan and Hayli. She is divorced from petitioner. Ronette maintained that respondent is Hayli's father but that in the divorce proceedings petitioner was named the father of both children. Ronette and respondent had been together going on 12 years, and they had been together for a solid 7 years.

Ronette denied ever having an order of protection against respondent. Ronette did not recall having been the victim of domestic battery at the hands of respondent in 2000. She remembered an argument that resulted in the police being called, but she did not recall that respondent pleaded guilty to domestic battery. Ronette maintained that respondent had never abused her, hit her, or laid a hand on her. Ronette denied that respondent drank or came home drunk.

Regarding the incident on December 21, 2006, shortly after 9 p.m. Ronette picked up her children from petitioner's house and took them to her grandmother's while she went to finish up her Christmas shopping. At approximately 12:30 a.m., Ronette went to the house to drop off the presents she had purchased. When she arrived home, she noticed that the Christmas tree was all messed up. No furniture was knocked over. Respondent was asleep on the couch so she did not talk to him. Ronette put the gifts in Donovan's bedroom and left to pick up the children. They arrived back home about 1 a.m.

Ronette denied receiving a phone call from respondent after she returned to her grandmother's or that respondent had threatened to kill the pets if she did not get home. Ronette thought her grandmother may have received a call from respondent inquiring if she was there to get the children.

When Ronette arrived back home with the children, the house was in the same condition. Respondent was still asleep on the couch, so she nudged him and asked what had happened to the tree. He said something about getting caught up in the cords, and grabbing hold of the tree, and coming down with it. Ronette said she would worry about it in the morning. The house had only two bedrooms, one for Donovan and one for Hayli. Respondent slept on the couch when the children were there and Ronette slept on another couch. When the children were gone, sometimes Ronette slept in Donovan's room because she got tired of sleeping on the couch. Ronette stated that the basement was where the dogs stayed and where the laundry room was located. The basement was a mess with unpacked boxes. They rarely went down into the basement. Ronette and the children went to bed in Hayli's room. Ronette maintained that was because she had hidden the Christmas presents in Donovan's room. Ronette claimed she did not sleep on the other couch because she did not want to step on any of the debris from the Christmas tree if she got up to use the bathroom in the middle of the night.

Ronette denied getting into an argument with respondent or that she went down in the basement with him. Ronette further maintained that respondent had not done any damage to the basement of the house later that night.

Ronette testified that respondent had never laid a hand on either of the children. She stated that she had never seen respondent hit, push, or use the belt on the children. Ronette denied offering her children money and to buy them things in exchange for their false testimony at the hearing. She testified that her son lies to her, has behavioral problems, and gets into trouble.

Virginia Spires testified that she is Ronette's grandmother. On the evening of December 21, 2006, Spires watched the children while Ronette finished her Christmas shopping. Ronette dropped the children off around 9 p.m. and returned around 12:30 a.m. During that time period, respondent called to inquire if Ronette had been there to pick up the children. Spires did not speak to respondent again that evening. Spires testified that when Ronette came to pick up the children, Ronette did not say anything about respondent messing up the Christmas tree or destroying items in the house.

Donovan and Hayli Frank were called to testify by petitioner. At the request of petitioner's counsel, and without objection by defense counsel, the testimony was given in chambers with only the judge and attorneys present.

Donovan testified that he was 14 years old and was in the eighth grade. He attended Thomas Jefferson Middle school. Donovan lived at his father's house every Monday, Thursday, and every other weekend. The rest of the time he lived at his mother's house along with his sister Hayli and respondent.

Late on December 21, 2006, Donovan was at his...

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