                                          2017 IL App (3d) 160070

                               Opinion filed January 12, 2017
     _____________________________________________________________________________

                                                   IN THE

                                    APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                     2017

     ERIN LYNN,                                        )       Appeal from the Circuit Court
                                                       )       of the 10th Judicial Circuit,
            Petitioner-Appellee,                       )       Peoria County, Illinois,
                                                       )
            v.                                         )       Appeal No. 3-16-0070
                                                       )       Circuit No. 16-OP-48
                                                       )
     ADRIAN BROWN,                                     )       Honorable
                                                       )       Suzanne Patton,
            Respondent-Appellant.                      )       Judge, Presiding.

     _____________________________________________________________________________

           JUSTICE CARTER delivered the judgment of the court, with opinion.
           Justice Schmidt specially concurred, with opinion.
           Justice McDade dissented, with opinion.
     _____________________________________________________________________________

                                                  OPINION

¶1          Respondent, Adrian Brown, appeals from the trial court’s entry of a plenary order of

     protection. Brown argues the court erred in entering the plenary order of protection because he

     was not allowed to present evidence at the hearing that led to the order. We affirm.

¶2                                                 FACTS

¶3          On January 15, 2016, petitioner, Erin Lynn, filed a petition for an order of protection

     against respondent. The petition alleged that Lynn and Brown had a dating relationship and a

     child together. In the description of the incident that led to the petition, Lynn stated that Brown
     had sent aggressive and threatening text messages for approximately one week. Eventually, Lynn

     allowed Brown to have visitation with the parties’ child provided that Brown ceased the

     aggressive behavior. When Brown arrived to retrieve the child, he and Lynn argued. The

     argument escalated and Brown forced Lynn to the ground. While Brown held Lynn in a choke

     hold, Brown instructed his friend to take the child to his vehicle. Lynn also alleged that Brown

     was abusive and she had ended her three-year relationship with Brown to protect the parties’

     child. Following the filing of the petition, the court entered an emergency order of protection

     against Brown.

¶4          On February 1, 2016, the court entered a plenary order of protection. In the written order,

     the court made the following findings: venue was proper; Brown had abused Lynn and/or the

     child; the conduct or actions of Brown, unless prohibited, will likely cause irreparable harm or

     continued abuse; and it was necessary to grant the requested relief to protect Lynn. The plenary

     order prohibited Brown from further acts or threats of abuse against Lynn and the child and

     ordered Brown to stay at least 300 feet away from Lynn and the child. The plenary order of

     protection was ordered to remain in effect until January 31, 2018. The order also documented

     that Lynn and Brown appeared in court at the time the order was entered. On the same date, the

     parties were ordered to participate in mediation to resolve visitation, scheduling, transportation

     and location issues. The mediation review was ordered for February 17, 2016.

¶5          On February 17, 2016, after the filing of the February 3, 2016, notice of appeal, the

     parties entered an agreed order for visitation. The order provided for three visitations per week

     and included overnight stays. The order stated that Frank Carrillo would transport the child for

     parenting time, and the parties agreed to communicate through Carrillo. The parties also agreed

     to share parenting time on major holidays. The visitation agreement and order of February 17,


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       2016, stated that it was “made a part of the plenary order of protection” entered February 1,

       2016.

¶6                                                 ANALYSIS

¶7             Brown argues the court erred in entering the plenary order of protection because he was

       not allowed to present evidence that established that he was not the aggressor in the January

       2016 incident. Brown also expresses concern that the plenary order of protection will prevent

       him from having a relationship with the parties’ child. Lynn has not filed a brief, however, we

       elect to decide the merits of the appeal because the record is simple and the claimed errors can

       easily be decided without the aid of an appellee’s brief. First Capitol Mortgage Corp. v. Talandis

       Construction Corp., 63 Ill. 2d 128, 133 (1976).

¶8             We review the trial court’s issuance of a plenary order of protection for an abuse of

       discretion. Lutz v. Lutz, 313 Ill. App. 3d 286, 289 (2000). A trial court abuses its discretion only

       where no reasonable person would take the view adopted by the court. Id.

¶9             Initially, we note that our review of the record is limited as Brown did not file a transcript

       of the order of protection hearing and the common law record does not include the docket

       entries, which would summarize the in-court proceedings. Therefore, we resolve any doubts

       arising from the incompleteness of the record against Brown, and we presume that the order

       entered by the trial court conformed to the law and had a sufficient factual basis. People v.

       Carter, 2015 IL 117709, ¶ 19; Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984).

¶ 10           The allegations in the petition established that Lynn and Brown had a contentious

       relationship that culminated in a January 2016 incident of domestic violence. The court appeared

       to base its initial decision to enter the emergency order of protection on these allegations.

       Because we do not have a report of the proceedings, we must presume that the court’s


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       subsequent plenary order of protection conformed to the law and had a sufficient factual basis.

       Carter, 2015 IL 117709, ¶ 19; Foutch, 99 Ill. 2d at 391-92. Finally, we note that Brown’s

       concern that the order of protection will prohibit him from seeing his child is addressed by the

       parties’ agreed visitation order that allows Brown three opportunities for visitation per week,

       including overnight stays and additional time on holidays.

¶ 11                                             CONCLUSION

¶ 12          For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.

¶ 13          Affirmed.

¶ 14          JUSTICE SCHMIDT, specially concurring.

¶ 15          Appellant has the burden to prove that the trial court erred. TSP-Hope, Inc. v. Home

       Innovators of Illinois, LLC, 382 Ill. App. 3d 1171, 1173 (2008) (“Defendant’s failure to file a

       brief does not require automatic reversal, and plaintiff continues to bear the burden of

       establishing error.”). He has failed to do so. Without a transcript of the hearing or a bystander’s

       report, we have no idea whether the trial court erred. In light of appellant’s brief, it is no surprise

       that appellee filed no brief. With or without an appellee’s brief, appellant clearly failed to meet

       his burden. By affirming, we are not saying we believe the trial court did everything exactly right

       (it may or may not have). We are saying that appellant failed to establish any reversible error.

       Contrary to the dissent, I find nothing unusual about that.

¶ 16           JUSTICE McDADE, dissenting.

¶ 17          I respectfully dissent from the majority’s analysis and conclusion. I find that the

       combined omission of the appellee’s brief and insufficiency in the record necessarily renders this

       case undecidable. Therefore, I would dismiss the appeal.




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¶ 18           The analysis of a case on appeal is founded on the premise that the proceedings are

       inherently adversarial and require the participation of two parties with opposing viewpoints.

       Illinois Supreme Court Rule 341 (eff. Jan. 1, 2016) provides the requirements for the filing of an

       appellant’s brief, appellee’s brief, and reply brief. Inherent within Rule 341 is the presumption

       that both parties shall file briefs that, respectively, raise an issue with the lower court’s ruling and

       advocate for the correctness of the ruling. Where the appellee elects not to file a brief, the

       temptation arises to construe the appellee’s omission as a waiver of the counter argument and

       reverse the trial court’s judgment. See Country Mutual Casualty Co. v. Van Duzen, 351 Ill. App.

       112, 116-17 (1953) (even though appellee did not fulfill their duty to either file a brief that raised

       a meritorious defense or confess error, the court was still required to consider the merits of the

       case). Such a pro forma reversal would clearly be inappropriate as it permits the judgment of the

       trial court to be set aside without some consideration of the merits of the appeal. Talandis, 63 Ill.

       2d at 131. In response to this situation, the supreme court crafted a narrow exception that allows

       a court of review to consider a single-briefed proceeding without assuming an advocatory role.

       See Talandis, 63 Ill. 2d at 133. Where an appellee does not file a brief, a court of review may

       decide the case on the merits “if the record is simple and the claimed errors are such that the

       court can easily decide them without the aid of an appellee’s brief.” Id. However, the supreme

       court has warned “[w]e do not feel that a court of review should be compelled to serve as an

       advocate for the appellee or that it should be required to search the record for the purpose of

       sustaining the judgment of the trial court.” Id.

¶ 19           The resolution of the present case turns on the applicability of the Talandis exception. I

       find that Brown’s pro se claims of error are unclear and the record cannot be characterized as




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       “simple,” and therefore, the exception does not apply. In this general situation, I believe the only

       viable option is to dismiss the appeal.

¶ 20           Brown generally argues that the court erred when it entered the plenary order of

       protection because he was not allowed to present evidence in support of his case. However,

       Brown does not cite to anything in the record which supports his position. Likely, Brown’s lack

       of support is the result of his failure to file the report of proceedings for the hearings that led to

       the entry of the plenary order of protection. When faced with this omission, the majority turns to

       the familiar presumption that, given an insufficiency in the record, the court of review presumes

       the lower court acted correctly. Supra ¶ 10. I find that, given the particulars of this case, this

       presupposition is inapplicable. Without an appellee’s brief, the application of this presumption

       impermissibly thrusts this court into the role of an advocate for Lynn as we are forced to “search

       the record,” or as in this case, omission in the record, for a reason to affirm the judgment. See id.

       Moreover, the Talandis exception is premised on the presumption that the record is simple and

       the claims of error are such that they may be readily decided without the aid of an appellee’s

       brief. Neither of these prerequisites is satisfied in this case. The record is complicated by the

       omitted transcripts, and Brown’s claims of error are unclear. Given these issues, I find that

       Talandis does not provide grounds for us to affirm the judgment of the trial court. Rather, this

       appeal is “incomplete” in that it lacks an appellee’s brief and adequate record. See Ill. S. Ct. R.

       321 (eff. Feb. 1, 1994); Ill. S. Ct. R. 341 (eff. Jan. 1, 2016). Therefore, I find that we are without

       grounds to enter a ruling on the merits and dismissal of the appeal is the appropriate resolution.




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