Dale v. Bennett

FILED
2021 IL App (4th) 200188 March 3, 2021
Carla Bender
NO. 4-20-0188 4th District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
JULIE ANN DALE, f/k/a Julie Ann Bennett, ) Appeal from the
Petitioner-Appellee, ) Circuit Court of
v. ) Pike County
JOSEPH JOHN BENNETT III, ) No. 13OP39
Respondent-Appellant. )
) Honorable
) Jerry J. Hooker,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justices Turner and Cavanagh concurred in the judgment and opinion.
OPINION
¶1 In April 2013, petitioner, Julie Ann Dale, formerly known as Julie Ann Bennett,
filed a petition for an emergency order of protection against respondent, Joseph John Bennett III,
pursuant to section 214 of the Illinois Domestic Violence Act of 1986 (Act) (750 ILCS 60/214
(West 2012)). That same day, the trial court conducted a hearing on the petition at which Dale
testified that (1) Bennett’s business partner was murdered and (2) Bennett confessed to Dale that
he had hired someone to commit the murder. Dale testified that she was in Illinois to give her
statement and testify against Bennett, but Bennett had threatened her over the years that if she told
anyone, he would hurt her. The trial court granted an emergency order of protection.
¶2 In October 2013, the trial court conducted an evidentiary hearing on Dale’s request
for a plenary order of protection. Following closing arguments, the trial court entered a plenary
order of protection that contained an expiration date of October 25, 2015.
¶3 In September 2015, Dale pro se filed a request for hearing on extending the plenary
order of protection for an indefinite amount of time. In support of her request, she asserted that she
remained fearful for her safety and the safety of her children.
¶4 In November 2015, when the trial court conducted a hearing on the motion to
extend the plenary order of protection, Bennett failed to appear. The court noted that Bennett had
been served with summons, found that he was in default, and extended the plenary order of
protection indefinitely. Shortly thereafter, the Manatee County, Florida, sheriff’s office served
Bennett with a copy of the extended plenary order of protection.
¶5 In October 2019, Bennett filed a motion to terminate the plenary order of protection,
alleging that the Act does not provide for an indefinite extension of a plenary order of protection.
In January 2020, the trial court conducted a hearing on Bennett’s motion and denied it, concluding
that plenary orders of protection can be extended for an indefinite period.
¶6 Bennett appeals, arguing that (1) the Act limits the duration for extensions of
plenary orders of protection to two years, (2) the trial court erred by granting Dale’s request for an
extension of the plenary order because no good cause was shown, and (3) section 220 of the Act
is unconstitutionally vague.
¶7 We disagree and affirm the trial court’s judgment.
¶8 I. BACKGROUND
¶9 A. The Plenary Order of Protection
¶ 10 In April 2013, Dale filed a petition for an emergency order of protection against
Bennett, alleging that Bennett (1) threatened her when he was mad, (2) installed an application on
her phone to monitor her activity, (3) would not let her get a job, (4) controlled her access to
money, and (5) in April 2009, hurt her wrist and arm and forced her to have sex with him. She also
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sought protection for her and Bennett’s four young children. The trial court granted her request
and entered an emergency order of protection. Later that month, the Manatee County, Florida,
sheriff’s office served a copy of the order on Bennett.
¶ 11 In October 2013, the trial court conducted a hearing to determine whether to grant
a plenary order of protection. Dale testified that Bennett’s business partner, Tom Fazy, was
murdered and that Bennett confessed to Dale that he had hired someone to commit the murder.
Tom Fazy was murdered in December 2004 at his office in Midlothian, Illinois. Dale said that in
February 2005, Bennett told Dale that he had someone murder Fazy and provided the name of the
hit man. Bennett warned Dale that if she told anyone that he was involved in the murder of Fazy,
he would hurt her or their then three-year-old son. Bennett and Dale left Illinois and went to
Florida. Dale explained that, while in Florida, Bennett frequently threatened her whenever he
became angry and would say that she knew what he was capable of doing—that he killed before
and had no problem killing again.
¶ 12 Dale testified that, in 2009, Bennett raped her. She did not leave him at the time
because she was afraid he would kill her. They separated later in 2009, and Bennett continued to
threaten her life.
¶ 13 Dale testified that in February 2013, she found Bennett loading her gun while
wearing rubber gloves that he brought home from his work. Dale testified, “And when I asked him
why he would need to wear rubber gloves to load my gun that’s registered to me, *** he said to
me that he never knows what he’ll have to use it for.” Dale believed that Bennett was either going
to use the gun to kill someone else and blame it on her or he would use it to kill her and blame it
on suicide. Dale explained that she was fearful for her life. She further testified that Bennett said
he was going to begin selling cocaine and marijuana at his job. She said that while she was visiting
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Illinois in April 2013, Bennett called her multiple times. Bennett told Dale he had fired an
employee that had bought cocaine from Bennett and the former employee was now making threats
against Dale, Bennett, and their children. When Dale returned to Florida, Bennett told her that this
person was still making threats, but Bennett was not afraid because he had killed before and did
not mind killing again.
¶ 14 Dale said that Bennett would scream and yell at the children, throw and break things
in front of the children, punch holes in the wall, and locked one child in a room. Dale testified that
she believed Bennett’s threats that, if she left him, he would kill her.
¶ 15 Dale called Nathaniel Davis to testify at the hearing. Davis testified he was
previously a business associate of Bennett’s in a real estate investment that went bad. Bennett told
Davis the name of the person that Bennett hired to kill his business partner.
¶ 16 Dale also called her sister, Cindy Webb, to testify. Webb testified that she witnessed
Bennett verbally abuse Dale and exhibit controlling behavior over Dale. Webb did not witness
Bennett exhibiting abusive behavior toward his children and never saw any physical abuse. Webb
said that in 2005, shortly after the murder of the business partner, Bennett asked Webb to get rid
of a gun by throwing it into a river.
¶ 17 Dale called Bennett to testify as an adverse witness. Bennett testified that he never
threatened Dale’s life. He denied confessing to Davis that he had his business partner murdered
and, further, denied asking Webb to get rid of a gun.
¶ 18 Bennett called both of his parents to testify. Both parents reported that they had
never seen Bennett exhibit abusive behaviors.
¶ 19 Following closing arguments, the trial court explained its findings of fact and
concluded that the petition had been proven. The trial court entered a plenary order of protection
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that contained an expiration date of October 25, 2015.
¶ 20 B. The Extension of the Plenary Order of Protection
¶ 21 In February 2015, Dale pro se filed a petition to modify the plenary order of
protection so that communication would be allowed between Dale and Bennett regarding their
pending divorce and matters pertaining to their children. The trial court granted that motion the
following month.
¶ 22 In September 2015, Dale pro se filed a request for hearing on extending the plenary
order of protection for an indefinite amount of time. Dale alleged that she remained fearful for her
safety and her children’s safety.
¶ 23 In October 2015, Dale filed a motion to modify the plenary order of protection,
asking that the prior request to allow limited communication be dismissed and that the terms of
the original plenary order of protection resume. That same day, the trial court entered an order
continuing the matter because Bennett had not yet been served with a copy of the petition to extend
the plenary order of protection.
¶ 24 In November 2015, the trial court conducted a hearing on the motion to extend the
plenary order of protection, but Bennett failed to appear. The court noted that Bennett had been
served with summons. The court found that Bennett was in default and extended the plenary order
of protection indefinitely. The court also vacated the order allowing limited communication.
Shortly thereafter, the Manatee County, Florida, sheriff’s office served Bennett with a copy of the
order.
¶ 25 C. Bennett’s Motion to Terminate the Plenary Order of Protection
¶ 26 In October 2019, Bennett filed a motion to terminate the plenary order of protection,
alleging that an indefinite extension is not allowed by statute. In January 2020, the trial court
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conducted a hearing on that motion and denied it, concluding that courts may extend plenary orders
of protection for indefinite periods of time.
¶ 27 This appeal followed.
¶ 28 II. ANALYSIS
¶ 29 Bennett appeals, arguing that (1) the Act limits the duration for extensions of
plenary orders of protection to two years, (2) the trial court erred by granting Dale’s request for an
extension of the plenary order because no good cause was shown, and (3) section 220 of the Act
is unconstitutionally vague. We disagree and affirm the trial court.
¶ 30 A. Plenary Orders of Protection can be Extended for an Indefinite Period of Time
¶ 31 1. The Law
¶ 32 “The best way to determine the legislature’s intent is to give the statutory language
its plain and ordinary meaning.” People v. Rowell, 2020 IL App (4th) 190231, ¶ 16 (citing People
v. Witherspoon, 2019 IL 123092, ¶ 21, 129 N.E.3d 1208). “Where statutory language is clear and
unambiguous, courts should apply the statute as written.” Id. (citing People v. Eppinger, 2013 IL
114121, ¶ 21, 984 N.E.2d 475). Further, statutes should be read as a whole and construed so no
part of the text is rendered meaningless or superfluous. Id. When the language of a statutory
provision is susceptible to more than one reasonable interpretation, the court may look to additional
sources to determine legislative intent. Id. “Such sources include the maxim of in pari materia,
under which two statutes, or two parts of one statute, concerning the same subject must be
considered together in order to produce a ‘harmonious whole.’ ” People v. Rinehart, 2012 IL
111719, ¶ 26, 962 N.E.2d 444 (quoting Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548,
555, 591 N.E.2d 427, 429 (1992)).
¶ 33 The Act “shall be liberally construed and applied to promote its underlying
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purposes.” 750 ILCS 60/102 (West 2018). The purposes of the Act include supporting the efforts
of victims of domestic violence to avoid further abuse by reducing an abuser’s access to the victim
so that victims are not trapped in abusive situations by fear of retaliation. Id. § 102(4).
¶ 34 Section 220 of the Act states that “[a] plenary order of protection entered under this
Act shall be valid for a fixed period of time, not to exceed two years.” Id. § 220(b)(0.05).
Subsection (e) further states, “Any *** plenary order may be extended one or more times ***.”
Id. § 220(e). The statute continues, stating, “An extension of a plenary order of protection may be
granted, upon good cause shown, to remain in effect until the order of protection is vacated or
modified.” (Emphasis added.) Id.
¶ 35 2. This Case
¶ 36 We conclude that the plain language of the Act provides for an indefinite extension
of a plenary order of protection. Although the initial plenary order of protection had a specific time
limit of two years, no time limit exists for an extension of such an order. Instead, the Act
specifically states that, upon good cause shown, the extension may “remain in effect until the order
of protection is vacated or modified.” Id. This language is crystal clear. This language also stands
in stark contrast to the language limiting the initial plenary order of protection to not “exceed two
years.” Id. § 220(b)(0.05). The legislature was clearly aware of the language necessary to impose
such a time limit on an extension of a plenary order of protection but explicitly chose not to.
Instead, the legislature stated that a motion to vacate or modify the order is the method by which
a party may seek to change or end the order. Id. § 224. This is hardly a case in which the statutory
language is confusing or obscure.
¶ 37 Bennett argues on appeal that because section 220(b)(0.05) of the Act states, “a
plenary order of protection entered under this Act shall be valid for a fixed period of time, not to
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exceed two years,” that this extension also cannot exceed two years. Id. § 220(b)(0.05). The Illinois
Supreme Court recently reiterated the principle that “specific statutory provisions will control over
general provisions on the same subject.” Van Dyke v. White, 2019 IL 121452, ¶ 46, 131 N.E.3d
511. Here, absent the specific statutory provision allowing indefinite extensions, the general rule
that plenary orders entered under the Act may not exceed two years would control. However,
because we have the more specific rule governing only extensions, any conflict between the
general rule and the specific rule is resolved in favor of the specific one. Further, to read section
220(b)(0.05) in the manner in which Bennett suggests would render the language allowing
indefinite extensions superfluous, which violates the principle of statutory interpretation that “[n]o
part of a statute should be rendered meaningless or superfluous.” Id.
¶ 38 Our conclusion is consistent with the policy goals that the Illinois legislature
articulated in the Act. The legislature noted the need for robust protections for victims of domestic
violence and sought to “[e]xpand the civil and criminal remedies for victims of domestic violence;
including, when necessary, the remedies which effect physical separation of the parties to prevent
further abuse.” 750 ILCS 60/102(6) (West 2018). The legislature wrote the law so that a victim
who needs an extension of a plenary order of protection need not appear in court every two years
simply to dredge up their terror before the court to explain why the order remains necessary. The
legislature, in its wisdom, created a statutory scheme in which after the initial two-year order, the
victim may request an indefinite extension that, if granted, shifts the onus to the respondent to
bring the case back to court if matters change.
¶ 39 The Act permits courts to indefinitely extend plenary orders of protection. Bennett
may, as the law provides, file a motion to vacate or modify the order if he chooses.
¶ 40 B. Bennett’s Argument That the Trial Court Erred by Denying
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Bennett’s Motion to Terminate Is Forfeited
¶ 41 Bennett also argues on appeal that the trial court made insufficient factual findings
before granting the extension of the plenary order of protection. However, he failed to raise this
issue before the trial court. In fact, Bennett failed to appear at the November 2015 hearing the court
conducted on Dale’s request to extend the plenary order of protection.
¶ 42 In Dale’s request, she stated that she wanted an indefinite extension because she
was “fearful for my safety and my children’s safety. I fear that if he knew of our location, the
children’s school[’s] location and my employment location he would show up unannounced and I
am fearful of how he would act and fearful of what he is capable of.” Dale further stated there
were no material changes since the original entry of the plenary order of protection.
¶ 43 Although Bennett now claims that the trial court made insufficient factual findings
before granting the extension, because Bennett failed to appear at the hearing, he deprived the trial
court of the opportunity to consider this argument. The trial court ensured that Bennett was
properly served before it heard the request for extension. As Dale notes on appeal, in both
Bennett’s motion to terminate and motion to reconsider, Bennett made arguments about only the
validity of an indefinite extension.
¶ 44 “Issues not raised in the trial court are forfeited and may not be raised on appeal.”
In re Marriage of Kasprzyk, 2019 IL App (4th) 170838, ¶ 40, 128 N.E.3d 1105. Because Bennett
failed to raise this issue in the trial court, his request that we reverse the trial court based upon this
argument would mean that we would be reversing the trial court’s decision based upon an
argument it never heard. We reject Bennett’s request that we do so.
¶ 45 This court has previously explained the problem with this course of action in the
context of motions to reconsider as follows:
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“Trial courts should not permit litigants to stand mute, lose a motion, and then
frantically gather evidentiary material to show that the court erred in its ruling. Civil
proceedings already suffer from far too many delays, and the interests of finality
and efficiency require that the trial courts not consider such late-tendered
evidentiary material, no matter what the contents thereof may be.” (Emphasis in
original.) Gardner v. Navistar International Transportation Corp., 213 Ill. App. 3d
242, 248, 571 N.E.2d 1107, 1111 (1991).
¶ 46 In Vantage Hospitality Group, Inc. v. Q Ill Development, LLC, 2016 IL App (4th)
160271, ¶ 46, 71 N.E.3d 1, this court noted that the same principle applies to arguments. We stated
that “no reason exists why the Gardner holding should not apply fully to either (1) rulings (as in
this case) on motions for involuntary dismissal under section 2-619(a) of the Code [of Civil
Procedure] or (2) to arguments, not just evidence, which are presented after the fact to the court.”
(Emphases omitted.) Id. We further explained that,
“this is the same rule that applies regarding the forfeiture of arguments that a party
wishes to raise on appeal. It has long been the law of the State of Illinois that a party
who fails to make an argument in the trial court forfeits the opportunity to do so on
appeal.” Id. ¶ 49.
¶ 47 C. Section 220 of the Act Is Not Vague
¶ 48 1. The Law
¶ 49 “Reviewing courts have a duty to construe a statute to preserve its constitutionality
whenever reasonably possible. [Citation.] Indeed, statutes are presumed constitutional, and the
challenging party has the burden to prove the statute is unconstitutional.” Bartlow v. Costigan,
2014 IL 115152, ¶ 18, 13 N.E.3d 1216 (citing People v. Masterson, 2011 IL 110072 ¶ 23, 958
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N.E.2d 686). When a party challenges a statute as vague, the court needs to decide (1) whether the
statute fails to provide a person of ordinary intelligence a reasonable opportunity to understand
what conduct the statute prohibits or (2) if it authorizes or encourages arbitrary and discriminatory
enforcement. Id. ¶ 40.
¶ 50 2. This Case
¶ 51 Bennett argues that the statute is confusing or contradictory because one portion of
it says the duration of a plenary order of protection is not to exceed two years but another portion
states that extensions may be of an indefinite duration until vacated or modified. Bennett contends
that “a reasonable person of ordinary intelligence may interpret that an extension of an [sic] plenary
order of protection is still a plenary order of protection, and therefore shall have a limit not to
exceed [two] years.”
¶ 52 This is not the standard. If the fact that a reasonable person “may interpret” the
statute incorrectly was all it took for a statute to be unconstitutionally vague, then almost any
statute could be deemed unconstitutionally vague. The real standard is whether a reasonable person
of ordinary intelligence has a reasonable opportunity to understand what the statute provides.
¶ 53 Judged in accordance with the correct standard, we conclude that the statute easily
passes constitutional muster.
¶ 54 III. CONCLUSION
¶ 55 For the reasons stated, we affirm the trial court’s judgment.
¶ 56 Affirmed.
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No. 4-20-0188
Cite as: Dale v. Bennett, 2021 IL App (4th) 200188
Decision Under Review: Appeal from the Circuit Court of Pike County, No. 13-OP-39; the
Hon. Jerry J. Hooker, Judge, presiding.
Attorneys Joshua Emberton and David Daudell, of Law Firm of
for David Daudell, of Chicago, for appellant.
Appellant:
Attorneys Susan M. Simone, of Land of Lincoln Legal Aid, of East St.
for Louis, and Thomas J. Hunter, of Becker, Hoerner & Ysursa, P.C.,
Appellee: of Belleville, for appellee.
Amici Curiae: Tinos D. Diamantatos, of Morgan, Lewis & Bockius LLP, of
Chicago, Randall M. Levine, of Morgan, Lewis & Bockius
LLP, of Washington D.C., Christine Raffaele,
of Illinois Coalition Against Domestic Violence, of
Springfield, Sarah Megan, of Prairie State Legal Services, Inc., of
West Chicago, and Melanie MacBride, of Legal Aid Society of
Metropolitan Family Services, Benna Crawford, of Legal Aid
Chicago, Denice Wolf Markham, of Life Span Center for Legal
Services and Advocacy, Margaret Duval, of Ascend
Justice, Elizabeth J. Ptacek, of Greater Chicago Legal Clinic, all
of Chicago, and Sasha Drobnick, the Domestic Violence Legal
Empowerment and Appeals Project, of Washington, D.C.,
for amici curiae.
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