Benjamin v. McKinnon ( 2008 )

NOS. 4-07-0079, 4-07-0080 cons. Filed 2/26/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
LONNA BENJAMIN, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. (No. 4-07-0079) ) Pike County
TERRY McKINNON, ) Nos. 06OP17
Defendant-Appellant. ) 06OP18
-------------------------------------- )
LONNA BENJAMIN, )
Plaintiff-Appellee, )
v. (No. 4-07-0080) ) Honorable
JEREMY McKINNON, ) Michael R. Roseberry,
Defendant-Appellant. ) Judge Presiding.
_________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
In separate April 5, 2006, petitions, plaintiff, Lonna
Benjamin, sought orders of protection against defendant Terry
McKinnon and defendant Jeremy McKinnon, Terry's son. That same
day, the trial court granted ex parte emergency orders of protec-
tion against both defendants. In June 2006, plaintiff filed
amended order-of-protection petitions. After a September 2006
hearing on the amended petitions, the court granted plaintiff an
order of protection for one year against Jeremy but denied her
one against Terry. Jeremy filed a motion to reconsider, and
Terry filed a motion for sanctions under Supreme Court Rule 137
(155 Ill. 2d R. 137). After a January 2007 hearing, the court
denied both motions.
Defendants appeal, asserting (1) the order of protec-
tion against Jeremy should be vacated because Jeremy does not
fall under the definition of "family or household member" and (2)
the trial court erred by denying Terry's Rule 137 motion. We
affirm.
I. BACKGROUND
Plaintiff sought an order of protection against Jeremy
and Terry based on a verbal skirmish that took place at her
residence in the early morning hours of April 1, 2006. In her
order-of-protection petitions, plaintiff marked "other related by
blood or marriage" as her relationship to Jeremy and Terry. The
trial court granted plaintiff emergency orders of protection
against defendants. In May 2006, Terry filed a motion to dis-
miss, asserting, inter alia, that he was not related by blood or
marriage to plaintiff. He noted one of his children had been
married to one of plaintiff's children but that the couple
divorced in October 2005. After a June 2006 hearing, the court
denied Terry's motion. (A transcript of that hearing is not
included in the record on appeal.)
On September 6, 2006, the trial court held a hearing on
the petition for plenary orders of protection. Lonna testified
on her own behalf. She stated that at approximately 2 a.m. on
April 1, 2006, she was watching television when she heard a
vehicle "come barreling down the street." She looked out the
window and saw the vehicle stopped for approximately a minute at
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a stop sign. She said the pickup truck she saw looked to her
like Jeremy's. She then heard the truck "rev just like someone
laid on the gas pedal, just revved up." Lonna estimated her
house to be about 40 to 50 feet from the stop sign. Lonna stated
that the truck drove past the stop sign, stopped, and then Jeremy
got out of the vehicle.
Lonna went outside to the front porch. Lonna
testified, "[Jeremy] was yelling and screaming that--saying
[']that pussy mother--send that pussy mother fucker out so I can
beat his ass.[']" Lonna testified she knew Jeremy to be
referring to her son Lucas because Lucas and Jeremy "have had
history." Lonna stated that she asked Jeremy to leave the
property and that he responded that he "'would kill all you
mother fuckers.'" She again told Jeremy to leave the property.
Jeremy did not leave, and Lonna and Jeremy "argued back and
forth."
Eventually, Jeremy exited the yard and moved to the
side of the street. Lonna testified, "[Jeremy] was calling me
all kinds of filthy names." She stated that Jeremy referred to
her as a "bitch" and a "whore." She said, "[Jeremy] grabbed his
private parts and said, [']I can touch you in places you've never
been touched before.[']"
Lonna testified that it was then that she noticed her
husband Larry, her sons Lucas and Logan, and Logan's girlfriend
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Billy Jo Surratt, were all outside on the porch. Lonna stated
that Jeremy was trying to get Lucas to come down to the street.
She said Jeremy threatened to kill Lucas and the whole family.
She stated that she had reason to be fearful of Jeremy because
her grandchildren were inside the house and because "anybody that
would come to someone's house at that hour of the morning I think
that they would act on their words."
Approximately three and five minutes after Jeremy
arrived, his father Terry also arrived at the Benjamins' house.
Lonna testified that Terry "jokingly" tried to get Jeremy back in
his truck. As Terry was driving off, Lonna stated the he pointed
to her son Logan and said "something to the effect of [']that's
right, you better leave, slugger,['] or something like that."
She testified that Terry pointed his finger at Logan and said,
"['][Y]ou better watch your ass, boy, or you'll get some of it
too.[']"
Lonna testified that she feared Terry because she knew
that he had been convicted for stabbing his own nephew. She said
the actions of both Jeremy and Terry made her extremely upset.
She said Jeremy appeared to be under the influence of alcohol
that night. She said Jeremy was "extremely loud" and that he had
slurred speech. She also observed that he was staggering. She
testified that he appeared to be drunk "or impaired in some way."
Lonna's husband, Larry, also testified that he observed
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the events that night as Lonna described and that Jeremy's
behavior caused him to be extremely upset. He testified, "You
know, any time someone threatens to kill my whole family, yes,
it's upsetting." Larry testified that he could not recall
exactly what Lucas was saying in response to Jeremy; however,
Larry recalled Lucas indicating that if Jeremy came into their
yard he would beat him up.
On cross-examination, Larry testified that there was
"bad blood" between the two families. When asked whether the bad
blood was caused by criminal activity, namely Lucas's home
invasions, Larry responded that "[a] lot of that has to do with
[Jeremy] threatening my family." Larry testified that Lucas had
been arrested because of complaints made by Terry's daughter and
Jeremy's sister (and Lucas's former wife), Tara. Larry could not
recall whether Lucas had been arrested for home invasion. Larry
denied that Lucas had a reputation for being a troublemaker. On
the night in question, Larry stated that his youngest son, Logan,
told Terry that he "better go on down the street" which elicited
Terry's response, "['][Y]ou better watch your ass boy. You're
going to get some of it too.[']"
Billy Jo Surratt testified that she was Logan's
girlfriend and living in the Benjamins' house at the time. She
also observed the events that night around 2 a.m. outside the
Benjamins' house. She testified she heard Jeremy tell Lonna he
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was going to kill her whole family. She also heard Jeremy call
Lonna a "bitch" and a "whore." After Terry arrived, Billy Jo
testified she went back inside the house and did not observe
anything further. On cross-examination, Billy Jo testified that
she initially went outside to the porch because she heard an
engine "revving" outside. She testified that she only heard what
Jeremy said while the argument ensued outside on the porch and
could not recall what anyone else said.
At the conclusion of plaintiff's evidence, defense
counsel made a motion for a directed judgment asserting plaintiff
had failed to establish a family relationship between the
parties. Plaintiff's attorney responded they had already
litigated the matter on Terry's motion to dismiss. The trial
court noted the issue of a family relationship had already been
brought before the court and denied the motion for a directed
judgment.
Lonna was called as an adverse witness by Jeremy and
Terry. She testified that Lucas had pending court cases
involving Class X felonies. The victim in those cases was her
son Lucas's ex-wife Tara, Jeremy's sister and Terry's daughter.
Lonna testified that Lucas's felony charges were pending when she
filed the petition.
When asked whether she had any family relationship with
Terry at all, Lonna answered, "I don't know how to answer that."
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She also testified that she was not Jeremy's mother-in-law.
Terry testified that when he arrived at the Benjamins'
that night, he did not observe anyone threaten anyone else. He
stated Jeremy did not punch anyone and he did not go onto the
Benjamins' property. He said that he observed Jeremy in the
street arguing with Lucas. Terry testified that Lucas's actions
were, "[l]ike Jeremy's. They were just a word battle is all it
was." Terry did not observe Jeremy grab his crotch. Terry
testified Lucas got his dog, which "looked like some kind of a
lab maybe, golden lab, pretty good size dog." He said he did not
know whether Lucas had the dog by a chain or the collar, but he
was trying to "sic" the dog on Jeremy but the dog would not do
it. Terry said eventually he got Jeremy in his truck and went
back to his truck to leave. At this point, Terry testified the
McKinnons were calling him "[']fat ass, queer, and baldy.[']" He
could not recall exactly who was saying these things to him.
Terry stated that he laughed at them while he was walking back to
his truck because they were calling him these names. Terry
denied that he threatened Logan while he was leaving.
On cross-examination, Terry testified that it was Cindy
McKinnon, his ex-wife, who called him that night and told him to
go to the Benjamins' house to get Jeremy. Terry testified he
went to the Benjamins' house because he did not want to see
Jeremy get in trouble. Terry testified that he had not been
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drinking that night and that he does not drink. He testified
that he did have a conviction in Calhoun County for aggravated
battery.
Jeremy testified that earlier in the evening he had
been at Palace, a bar in Calhoun County. He stated that he saw
Lucas at the bar with Jeremy's sister and Lucas's ex-wife, Tara,
although Tara had been issued an order of protection preventing
Lucas from being near her. The trial court took judicial notice
of this order. Jeremy said that he and Lucas "had words" at the
bar. Jeremy testified that he asked Lucas to leave the bar, but
Lucas refused. Jeremy said he left the bar with his cousin Greg;
and when they returned to the bar, Lucas and Tara were gone.
Jeremy testified, "I got upset, and that's why I went
into Pleasant Hill [(where the Benjamins lived)] and done what I
done." Jeremy stated that he went first to his sister Tara's
house to look for her. When he did not find her at home, he
went to the Benjamins' house to search for Tara. Jeremy denied
that he was barreling down the road or revving his engine when he
approached the Benjamins' house. He stated that he stopped his
car because Lucas came running out into the yard and saying,
"[B]ring it on, little pussy, come on, come on." Jeremy
testified that Lucas "kept going, [']bang, you're dead, bang,
you're dead.[']" Jeremy said that he got scared, turned around
and started to return to his truck, and Lucas called him "a
- 8 -
pussy." Jeremy stated that he went to the edge of the Benjamins'
property but that he never set foot in their yard. Jeremy
testified that his father, Terry, eventually showed up and
quietly asked him to get into his truck. Jeremy said he went to
Terry's truck and Terry said, "[C]ome on, let's go home."
Jeremy stated that Lucas brought his dog outside and
kept laughing as he told the dog to "sick [sic] him, boy, sick
[sic] him." Jeremy testified that he was not related to Lonna,
Luke, or Larry.
On cross-examination, Jeremy said Terry had to persuade
him to leave the Benjamins' property. He said he was very angry
and not ready to leave. Jeremy said that he was begging Lucas to
come out for a fight. Jeremy said, "I'm going to tell you why I
was beggin [sic] him to come out to the road. When you show up
at somebody's house walking toward them and they act like they've
got a gun, [']bank [sic] your dead, bank [sic] your dead,[']
wouldn't that upset you?" He said, "When I started walking back,
I didn't know what was going to happen. When you have a guy
calling you names, [']pussy, faggot,['] whatever was said, it
does flare the temper a bit."
On redirect examination, Jeremy testified that he did
not originally go to Lucas's house looking for a fistfight but
instead wanted to see if his sister Tara was safe. During the
hearing, no evidence or testimony was presented by either party
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as to where Tara was located after she left the bar that evening.
During closing arguments, defense counsel again
contended no family relationship existed among the parties.
The trial court issued a plenary order of protection
against Jeremy and denied the order against Terry. The court
disagreed with defendants, finding a sufficient relationship
existed for the issuance of an order of protection based on the
fact Jeremy was the brother and Terry was the father of
plaintiff's son's ex-wife, Tara. The court stated:
"Certainly ex-relationships are as protected
as existing relationships, at least according
to the language of the Order of Protection
Act. This certainly seems to me to be a case
where that relationship should apply and
where an order of protection should enter if
there were sufficient factual bases to
support it."
The court concluded the evidence was sufficient to grant an order
of protection for one year against Jeremy only, as Terry's
actions were reasonable under the circumstances. The court
issued a written order of protection against Jeremy effective
until 9 a.m. on August 31, 2007.
On September 22, 2006, Jeremy filed a motion to
reconsider the trial court's order, again asserting no family
- 10 -
relationship existed. Also on September 22, 2007, Terry filed a
motion for sanctions pursuant to Supreme Court Rule 137,
asserting, inter alia, plaintiff filed her petition for an order
of protection knowing she had no family relationship with him.
155 Ill. 2d R. 137. After a joint January 2007 hearing, the
trial court denied both of the motions. Jeremy (No. 4-07-0080)
and Terry (No. 4-07-0079) appealed, and we consolidated the
appeals.
II. ANALYSIS
A. Lack of Appellee Brief
Plaintiff has not filed a brief on appeal. A reviewing
court is not compelled to serve as an advocate for the appellee
and is not required to search the record for the purpose of
sustaining the trial court's judgment. However, if the record is
simple and the claimed errors are such that the reviewing court
can easily decide them without the aid of an appellee's brief,
that court should decide the merits of the appeal. On the other
hand, "if the appellant's brief demonstrates prima facie
reversible error and the contentions [in] the brief find support
in the record," the trial court's judgment may be reversed.
First Capitol Mortgage Corp. v. Talandis Construction Corp., 63
Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).
B. Order of Protection
Since the order of protection against Jeremy has
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expired on its own terms on August 31, 2007, we must begin by
addressing whether the doctrine of mootness applies to Jeremy's
challenge to the order. An issue raised on appeal becomes moot
when the issue no longer exists due to events occurring after the
filing of appeal that make it impossible for the appellate court
to grant effective relief. Lutz v. Lutz, 313 Ill. App. 3d 286,
288, 728 N.E.2d 1234, 1236 (2000). Even assuming the order of
protection's expiration rendered Jeremy's issue formally moot, we
find his issue reviewable under the public-interest exception to
the mootness doctrine. See Lutz, 313 Ill. App. 3d at 288, 728
N.E.2d at 1236 (applying the exception to an expired order of
protection).
Jeremy asserts the order of protection entered against
him should be vacated because he is not "a family or household
member" of plaintiff. Jeremy's issue is a matter of statutory
interpretation, which presents a question of law; and thus our
review is de novo. People v. Palmer, 218 Ill. 2d 148, 154, 843
N.E.2d 292, 296 (2006).
In interpreting statutes, courts seek to ascertain and
give effect to the legislature's intent. A court begins by
examining the statute's language. The words are given their
plain and commonly understood meanings as viewed, not in
isolation, but in light of the statute's other relevant
provisions. When a statute's language is clear and unambiguous,
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it will be given effect without resort to statutory-construction
tools. State Board of Elections v. Shelden, 354 Ill. App. 3d
506, 512, 821 N.E.2d 698, 704 (2004). This case involves the
Illinois Domestic Violence Act of 1986 (Domestic Violence Act)
(750 ILCS 60/101 through 401 (West 2006)), which contains a
provision regarding construction (750 ILCS 60/102 (West 2006)).
The Domestic Violence Act, by its very language, was intended to
be applied broadly. The Domestic Violence Act states that it
"shall be liberally construed and applied to promote its
underlying purposes," which the legislature then lists. 750 ILCS
60/102 (West 2006). The first purpose of the Domestic Violence
Act is as follows:
"(1) Recognize domestic violence as a
serious crime against the individual and
society which produces family disharmony in
thousands of Illinois families, promotes a
pattern of escalating violence which
frequently culminates in intra[]family
homicide, and creates an emotional atmosphere
that is not conducive to healthy childhood
development[.]" 750 ILCS 60/102(1) (West
2006).
If the trial court finds the plaintiff "has been abused by a
family or household member," then the Domestic Violence Act
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provides that "an order of protection prohibiting that abuse,
neglect, or exploitation shall issue." 750 ILCS 60/214(a) (West
2006). Section 103(6) of the Domestic Violence Act (750 ILCS
60/103(6) (West 2006)) defines "'[f]amily or household members'"
as including the following:
"spouses, former spouses, parents,
children, stepchildren[,] and other persons
related by blood or by present or prior
marriage, persons who share or formerly
shared a common dwelling, persons who have or
allegedly have a child in common, persons who
share or allegedly share a blood relationship
through a child, persons who have or have had
a dating or engagement relationship, persons
with disabilities and their personal
assistants, and caregivers as defined in
paragraph (3) of subsection (b) of [s]ection
12-21 of the Criminal Code of 1961 [(720 ILCS
5/12-21(b)(3) (West 2006))]." (Emphases
added.) 750 ILCS 60/103(6) (West 2006).
The specific statutory language at issue in this case is the
language "other persons related by blood or by present or prior
marriage." 750 ILCS 60/103(6) (West 2006). In the present case,
Lonna's son, Lucas, was formerly married to Jeremy's sister,
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Tara. Jeremy is, therefore, clearly Lucas's former brother-in-
law. Jeremy is then Lonna's former daughter-in-law's brother.
Terry's relationship to Lonna is Lonna's son's former father-in-
law.
Jeremy and Terry argue that these relationships were
not intended to be included in the language of the Domestic
Violence Act. They argue that "related by marriage" is commonly
understood to mean one's "in-laws," such as father-in-law,
mother-in-law, sister-in-law, brother-in-law, son-in-law, and
daughter-in-law. See Gary-Wheaton Bank v. Meyer, 130 Ill. App.
3d 87, 93, 473 N.E.2d 548, 553 (1984) (noting the defendant was
"related by marriage" to his mother-in-law).
"Related by marriage" is synonymous with "related by
affinity." See, e.g., Merriam-Webster's Collegiate Dictionary
1050 (11th ed. 2003) ("relative *** a person connected with
another by blood or affinity"). There are degrees of affinity.
"Direct affinity" is "[t]he relationship of a spouse to the other
spouse's blood relatives," such as "a wife and her husband's
brother." Black's Law Dictionary 63 (8th ed. 2004). "Collateral
affinity" is "[t]he relationship of a spouse's relatives to the
other spouse's blood relatives," such as a "wife's brother and
her husband's sister." Black's Law Dictionary 63 (8th ed. 2004).
The relationship between Lonna and Jeremy and Lonna and
Terry is not fortuitous. These parties were relatives by virtue
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of Lucas and Tara's prior marriage. Therefore, Jeremy and Terry
were Lonna's relatives by collateral affinity.
Pratt v. Lasley, 213 S.W.3d 159, 160 (Mo. App. 2007),
supports this statutory interpretation. In Pratt, the court
concluded that two men who were married to sisters were related
by secondary affinity such that one could obtain an order of
protection against the other. Pratt, 213 S.W.3d at 160. No
direct affinity existed in that case. The defendant argued that
while he was related by marriage to his wife's sister, he was not
related by marriage to her sister's husband. Pratt, 213 S.W.3d
at 160. Nevertheless, "collateral affinity" existed, and the
court, quoting Black's Law Dictionary, held that an order of
protection was properly granted. Applying that logic to the
present case, any of Lucas's siblings could have obtained an
order of protection against any of Tara's blood relatives,
including her father, Terry, and her brother Jeremy. Lucas's
mother should be allowed to do so also, as the same degree of
relationship is present.
Such a liberal interpretation of "persons related by
prior marriage" is supported by section 102 of the Domestic
Violence Act, which states, "This Act shall be liberally
construed and applied to promote its underlying purposes." 750
ILCS 60/102 (West 2006). One of those stated purposes is to
prevent escalating intrafamily violence. Certainly, the present
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case commenced as a result of escalating intrafamily violence
that included not only the formerly married couple, Lucas and
Tara, but also their siblings and parents. Based on this stated
purpose of the Domestic Violence Act, the relationship between
Jeremy, Terry, and Lonna, which resulted from the marriage of
their immediate family members, is precisely one type of
relationship the Domestic Violence Act was intended to address.
Because the Domestic Violence Act provides for a
liberal construction of the term "family member," courts should
recognize brothers and parents of two formerly married people as
included in the term "family member" or "persons related by ***
prior marriage." Moreover, as applied in this case, inclusion of
siblings and parents of formerly married spouses as "family
members" promotes the Domestic Violence Act's stated purpose of
eliminating intrafamily violence. Therefore, we affirm the order
of protection entered against him.
C. Rule 137 Sanctions
Terry contends the trial court erred by denying his
Rule 137 motion for sanctions because plaintiff falsely pleaded a
family relationship existed between them when one did not.
The decision whether to impose sanctions under Rule 137
rests within the trial court's sound discretion, and a reviewing
court will not overturn that decision unless the trial court has
abused that discretion. Dowd & Dowd, Ltd. v. Gleason, 181 Ill.
- 17 -
2d 460, 487, 693 N.E.2d 358, 372 (1998). A trial court abuses
its discretion when no reasonable person could take the view it
adopted. Technology Innovation Center, Inc. v. Advanced
Multiuser Technologies Corp., 315 Ill. App. 3d 238, 244, 732
N.E.2d 1129, 1134 (2000).
This court has held Rule 137 (155 Ill. 2d R. 137)
sanctions may be granted under the following circumstances:
"(1) if either party files a pleading or
motion that to the best of the attorney's
'knowledge, information, and belief' is not
'well grounded in fact' and is not 'warranted
by existing law or a good-faith argument for
the extension, modification, or reversal of
existing law,' or (2) if the pleading or
motion is interposed to 'harass or to cause
unnecessary delay or needless increase in the
cost of litigation.'" (Emphasis omitted.)
Miller v. Bizzell, 311 Ill. App. 3d 971, 976,
726 N.E.2d 175, 179 (2000), quoting 155 Ill.
2d R. 137.
We disagree with Terry that he and plaintiff were not
family members related by a prior marriage. Therefore,
plaintiff's argument was not only a good-faith interpretation of
the Domestic Violence Act as demonstrated by the trial court's
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concurrence with her interpretation but also a successful one.
Accordingly, we find the trial court did not abuse its discretion
by denying Terry's Rule 137 motion.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgments.
No. 4-07-0079, Affirmed.
No. 4-07-0080, Affirmed.
COOK, J., concurs.
TURNER, J., specially concurs in part and dissents in
part.
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JUSTICE TURNER, specially concurring in part and
dissenting in part:
While I concur in the majority's conclusion the trial
court did not abuse its discretion by denying Terry's Rule 137
motion (No. 4-07-0079), I respectfully dissent from its
affirmation of the trial court's order of protection against
Jeremy (No. 4-07-0080).
I fully appreciate the majority's desire to uphold one
of the Domestic Violence Act's stated purposes "to prevent
escalating intra[]family violence." Nonetheless, there must be
some set parameters to determine when and if people are related
by marriage.
As defendants note, "related by marriage" is commonly
understood to mean one's "in-laws," such as father-in-law,
mother-in-law, sister-in-law, brother-in-law, son-in-law, and
daughter-in-law. See Gary-Wheaton Bank, 130 Ill. App. 3d at 93,
473 N.E.2d at 553 (noting the defendant was "related by marriage"
to his mother-in-law). The term "in-law" is defined as "a
relative by marriage." Black's Law Dictionary 802 (8th ed.
2004); Merriam-Webster's Collegiate Dictionary 644 (11th ed.
2003). Thus, the language of the statute is almost identical to
the definition of "in-law." Clearly, Jeremy is Lucas's former
brother-in-law, but none of the aforementioned "in-law" terms
would apply to Lonna's relationship to Jeremy. Similarly, Terry
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is Lucas's former father-in-law, but again none of the
aforementioned terms would apply to Lonna's relationship to
Terry. I agree with defendants, no commonly understood term
describes the relationship between a parent and his or her
child's in-laws. Additionally, a parent's child's in-laws are
not commonly understood to be the parent's relations by marriage,
just the child's. Thus, I conclude Lonna's relationship to
Jeremy and Terry does not fall under the plain and ordinary
meaning of "related by *** prior marriage." 750 ILCS 60/103(6)
(West 2006).
The majority reaches the opposite result, finding
Jeremy and Terry were Lonna's "relatives by collateral affinity."
The majority's analysis is flawed for several reasons. First,
the statute does not use the term "relatives by collateral
affinity," and it is not this court's function to insert
terminology into the statute the legislature did not see fit to
include. See In re Minor Child Alexis Stella, 353 Ill. App. 3d
415, 417, 818 N.E.2d 824, 826 (2004) ("We cannot read words into
a statute that are not there"). The crux of this case is the
plain and ordinary meaning of "related by *** prior marriage."
750 ILCS 60/103(6) (West 2006).
Second, although I question the majority's conclusion
"'related by affinity'" is synonymous with "'related by
marriage,'" even if it is true, "affinity" is usually described
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as the relationship that the majority refers to as "direct
affinity" (see slip op. at 14). Black's Law Dictionary defines
"affinity" as "[t]he relation that one spouse has to the blood
relatives of the other spouse; relationship by marriage."
Black's Law Dictionary 63 (8th ed. 2004). Moreover, Black's Law
Dictionary provides the following definition for "relative by
affinity": "A person is a relative by affinity (1) to any blood
or adopted relative of his or her spouse, and (2) to any spouse
of his or her blood and adopted relatives." Black's Law
Dictionary 1315 (8th ed. 2004). While Lucas's prior relationship
to Terry and Jeremy would fall under the aforementioned
definitions of affinity and direct affinity, Lonna's relationship
to defendants as Lucas's mother clearly does not.
Third, even if we look to degrees of affinity, the
majority fails to expressly note the term "secondary affinity."
"Secondary affinity" is "[t]he relationship of a spouse to the
other spouse's marital relatives," such as "a wife and her
husband's sister-in-law." Black's Law Dictionary 63-64 (8th ed.
2004). Contrary to the majority's suggestion (see slip op. at
14-15), "secondary affinity" is its own term separate from the
term "collateral affinity." Moreover, on the facts of this case,
secondary affinity would describe Lucas's relationship to the
spouses of Tara's siblings and Tara's relationship to the spouses
of Lucas's siblings, not the relationship between Lucas's
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siblings and Tara's blood relatives as implied by the majority
(see slip op. at 15).
Last, I disagree the Pratt case supports the majority's
interpretation of the statute. While the Pratt court noted the
parties in that case were related by secondary affinity, it
mentioned that term in rejecting the defendant's assertion
"related by marriage" should be limited to relatives by blood or
direct affinity based on the definition of the term "of kin."
See Pratt, 213 S.W.3d at 160, 160 n.2. In actually interpreting
the statute, the Pratt court looked to the plain and ordinary
meaning of "related by marriage" and found that term included
one's brother-in-law. Pratt, 213 S.W.3d at 160. Then citing the
definition of "brother-in-law," the Pratt court found the
defendant and the plaintiff, who were married to sisters, were
brothers-in-law and therefore their relationship fell under the
order-of-protection statute. Pratt, 213 S.W.3d at 160, citing
Black's Law Dictionary 194 (6th ed. 1990); Webster's Third New
International Dictionary 284 (1993). Thus, the Pratt court did
not look to such terms as direct, secondary, and collateral
affinity in interpreting "related by marriage," but rather looked
to the commonly understood meaning of the term. Moreover, even
if it is proper to consider degrees of affinity in interpreting
"related by marriage," the Pratt case still does not support the
majority's conclusion because it involved secondary affinity, not
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the more distant collateral affinity at issue in this case.
As previously indicated, I agree with the majority's
conclusion the trial court did not abuse its discretion by
denying Terry's Rule 137 motion. While I agree with Terry that
he and Lonna were not family members related by a prior marriage
since they were not "in-laws," Lonna's argument was a good-faith
interpretation of the Domestic Violence Act as demonstrated by
the trial court's ruling and by the majority position taken
today.
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