Paul v. Calabrese

• Citation: 2014 IL App (1st) 130233 -U
• Decision Date: 20 August 2014
• Docket Number: 1-13-0328,1-13-0233,1-13-3129
• Parties: MARY PAUL, Petitioner-Appellee, v. FRANK CALABRESE, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 130233-U

MARY PAUL, Petitioner-Appellee,
v.
FRANK CALABRESE, Respondent-Appellant.

1-13-0233
1-13-0328
1-13-3129

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THIRD DIVISION

August 20, 2014

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County

11 OP 20308

Honorable Callie Baird, Judge Presiding.

JUSTICE MASON delivered the judgment of the court.
Presiding Justice Hyman and Justice Pucinski concurred in the judgment.

ORDER

¶ 1 Held: The circuit court did not err in denying respondent's motion to vacate an agreed order of protection where the court issued a ruling on the merits and respondent's motion did not contain facts sufficient to entitle him to relief under section 2-1401. Similarly, the circuit court did not err in denying respondent's motion to reconsider and declining to withdraw his notice of appeal where the underlying motion had no merit. The order of protection is not unconstitutional as applied to the facts of this case where the protected parties and the proscribed conduct were clearly stated. The circuit court did not err in failing to transfer the petition for substitution for cause to another judge where the petition did not satisfy the statutory requirements for substitution. Finally, the circuit court did not err in extending the order of protection.

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¶ 2 These consolidated appeals arise out of an order of protection sought and obtained by petitioner Mary Paul against respondent Frank Calabrese. Following the entry of an emergency order of protection in July 2011, an agreed plenary order of protection for a two-year period was entered in September 2011. In December 2012, Calabrese filed a motion to vacate or modify the plenary order of protection.

¶ 3 After the motion was denied, Calabrese filed a notice of appeal but later filed a motion to reconsider the denial of his motion to vacate and another motion to withdraw his notice of appeal pending a decision on his motion to reconsider. The motion to withdraw the notice of appeal was denied on January 17, 2013. Calabrese filed a second notice of appeal and the appeals were consolidated. In September 2013, Paul sought and obtained an extension of the existing plenary order of protection to October 3, 2013.

¶ 4 On appeal, Calabrese contends that (1) the circuit court erred in denying his motion to withdraw his notice of appeal pending a decision on his motion to reconsider the denial of his motion to vacate the 2011 order; (2) the circuit court erred in entering an emergency order of protection in 2011 because there were insufficient allegations of domestic violence; and (3) the 2011 agreed order of protection violated his first amendment rights. Calabrese further contends that (1) the circuit court erred in extending the 2011 order of protection while that order was on appeal; (2) the circuit court had no authority to extend the order where Calabrese filed a motion for substitution of judge for cause and that motion was never ruled on; (3) there were insufficient allegations of domestic violence to support extending the order; and (4) Calabrese's procedural due process rights were violated. After our review of the record and our consideration of Calabrese's various arguments, we affirm the judgment of the circuit court of Cook County.

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¶ 5 BACKGROUND

¶ 6 Paul is Calabrese's biological mother. Paul gave Calabrese up for adoption in 1987. Calabrese eventually located her in September 2010 and attempted to establish a relationship with her.

¶ 7 Although Paul was initially open to a relationship, in July 2011 Paul filed a petition for an emergency order of protection. According to the petition, Calabrese misrepresented his circumstances to Paul and wanted a stronger relationship than Paul was interested in having. The petition alleged that Calabrese contacted Paul hundreds of times via email, text message, and phone calls. When Paul told Calabrese to stop calling so frequently, he became angry and began to call and email her employees, customers and attorneys, claiming that Paul abandoned him at birth. Attempts to block his emails failed because Calabrese kept changing his email address, so Paul filed a report with the Des Plaines police department. Calabrese then stopped sending emails to Paul's friends, employees and customers but began sending them to the police department instead.

¶ 8 Paul believed Calabrese was emotionally disturbed and unstable. Calabrese portrayed Paul as an evil woman who abandoned him but at the same time told her he loved her. Calabrese was verbally abusive to Paul and she did not want any contact with him because he wanted to control her and she and her family were afraid of him.

¶ 9 An emergency order of protection was entered on July 29, 2011. On the same date, Paul signed a complaint for harassment by electronic communication against Calabrese with the Des Plaines police department and Calabrese was charged criminally. After several extensions of the

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emergency order of protection, the criminal case was transferred and consolidated with the emergency order of protection.

¶ 10 On September 28, 2011, Calabrese, represented by counsel, notified the circuit court that he had reached an agreement with the State. In exchange for the dismissal of the criminal charge, Calabrese agreed to a two-year no contact order of protection with an expiration date of September 28, 2013. Calabrese was read the terms of the plenary order of protection in open court and the order was subsequently entered by the court.

¶ 11 Between November 30, 2012, and December 10, 2012, Calabrese filed a series of pro se motions. He first filed a motion to dismiss the order of protection on the grounds that he did not harass Paul or do anything that would cause a reasonable family member to fear him, that the court lacked jurisdiction because neither of the parties resided in Cook County, and that the order was overly burdensome and defamatory. Calabrese claimed that the "grounds" for the motion were "supported by an attached affidavit" and a desire for Calabrese "to communicate with his natural mother, especially during the holiday season."

¶ 12 Calabrese then filed a motion to strike the first motion and replace it with a motion to dismiss or set aside the plenary order of protection. The new motion included the same grounds as the original motion, but added that the order prevented contact with his aunt and cousins. Calabrese later filed a motion for leave to amend and filed another motion to dismiss or set aside the plenary order, including additional paragraphs outlining his initial interactions with Paul and attaching over 100 pages of phone records and emails.

¶ 13 On December 10, 2012, Calabrese filed yet another motion to strike his latest amended motion and replace it with a motion to vacate or modify the plenary order of protection. Calabrese argued that the order of protection should be dismissed because all communication

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with Paul was reasonable and did not constitute harassment. He denied misrepresenting himself to Paul, stated that she introduced him to family members, friends and employees, visited him, initiated phone calls and emails, and sent greeting cards. Calabrese argued that the order of protection prevented him from maintaining a relationship with his aunt and from contacting his cousins in furtherance of his genealogy hobby.

¶ 14 Calabrese further argued that Cook County was an improper venue and that he was falsely accused of harassment and was arrested and criminally charged. Calabrese claimed that he was the victim of malicious prosecution and defamation as a result of the criminal proceedings against him, and he only agreed to the order of protection so that the criminal charge against him would be dismissed. Calabrese argued that the circuit court had the authority to vacate or modify the order because he introduced phone records that he had been unable to obtain previously and showed due diligence in filing his motion as soon as he obtained them.

¶ 15 An order was entered on December 10, 2012, denying Calabrese's motion to vacate or modify the order of protection. According to the certified bystander report, the court gave the following reasons for the denial: (1) Calabrese submitted to the court's jurisdiction by filing an appearance and entering into an agreement for a two-year plenary order of protection; (2) there had been no change in applicable law or facts since the order was entered that warranted a modification of its terms; and (3) the motion did not state a basis for dismissal of the order of protection, Calabrese agreed to the order while represented by counsel, and Calabrese was present at the time the order was entered.

¶ 16 On January 7, 2013, Calabrese filed a notice of appeal from the court's December 10 order. However, two days later, Calabrese filed a motion to reconsider the December 10 ruling and, on January 17, filed a separate motion to withdraw his January 7 notice of appeal pending a

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decision on the motion to reconsider. The circuit court denied the motion to withdraw the appeal on January 17 and Calabrese filed a second notice of appeal from that order on February 4, 2013. The appeals were...