McGowan v. Cook

2019 IL App (5th) 180031-U

MELODY R. McGOWAN, Petitioner-Appellee, v. ANDREW J. COOK, Respondent-Appellant.

NO. 5-18-0031

APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

June 24, 2019

NOTICE

Decision filed 06/24/19. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

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 St. Clair County.

No. 17-OP-803

Honorable Walter C. Brandon Jr., Judge, presiding.

JUSTICE CHAPMAN delivered the judgment of the court.

Justices Welch and Cates concurred in the judgment.

ORDER

¶ 1 Held: Where Melody R. McGowan, the person who sought the stalking no contact order against Andrew Cook, was not "a specific person" as contemplated by the Stalking No Contact Order Act (740 ILCS 21/10 (West 2016)) in that she was not the target of Cook's alleged "stalking" conduct, McGowan is not an appropriate petitioner or victim, and thus the trial court's original plenary order in McGowan's favor was incorrect, and the trial court's order denying Cook's motion for reconsideration must be reversed.

¶ 2 Melody R. McGowan (McGowan) filed a verified petition for a stalking no contact order against Andrew J. Cook (Cook) on September 29, 2017. Three days prior, McGowan's son, Anthony McGowan (Anthony), had sent her screenshots of Facebook messages between his wife, Vanessa McGowan (Vanessa), and Cook. These screenshots appeared to outline a plan by which Cook would follow McGowan in order to attempt to catch her meeting with her son, Anthony. Anthony was not allowed to have any contact with his mother pursuant to the terms of his parole. The trial court granted the emergency stalking no contact order against Cook on September 29, 2017, and set a hearing for a plenary stalking no contact order for October 18, 2017. Noting that Cook was served with process and notice and was present with his attorney, the trial court entered the plenary stalking no contact order on the basis that McGowan was a victim of two or more acts of "following, monitoring, observing, [and] surveilling" by Cook. The trial court denied Cook's motion for reconsideration. Cook appeals from that order.

¶ 3 BACKGROUND

¶ 4 Anthony and Cook had been friends. During the relationship, Cook loaned Anthony more than $15,000 in order to help him to pay credit card debt and to maintain an apartment. Cook later learned that Anthony was not being truthful about his financial situation, and that he had incurred new charges on credit card accounts that Cook had previously paid off. Thereafter, the friendship ended.

¶ 5 The record on appeal is not entirely clear about the foundation of the criminal charges that resulted in Anthony's original prison sentence and the subsequent parole violations.¹ However, Vanessa and McGowan both testified that they had been victims of domestic assaults and/or batteries by Anthony. Upon release from prison, Anthony was required to comply with numerous conditions of parole, two of which prohibited him from being with McGowan or Vanessa. If Anthony violated any of the conditions of parole, he could be charged with a parole violation and returned to prison.

¶ 6 On one occasion when Anthony was sent to prison on a parole violation, Cook contacted McGowan about providing her with assistance around the house since Anthony was not able to help her. McGowan developed a friendship with Cook. In June 2017, McGowan concluded that Cook had become demanding and controlling with requests for information about Anthony's financial records. McGowan had the ability to provide Cook with that financial information because she was Anthony's power of attorney while he was incarcerated. However, she refused to provide Cook with Anthony's financial information. McGowan broke off communication with Cook in June 2017.

¶ 7 In 2017, Vanessa reached out to Cook by sending him a message on Facebook because she felt that she was responsible for the demise of Anthony's friendship with Cook. Vanessa and Cook began an exchange of Facebook and text messages that went from mid-June 2017 until mid-July 2017. During that time, Cook and Vanessa spoke to each other about Anthony's childhood history of abuse. Cook testified that Vanessa told him that she was fearful that Anthony would abuse or had been abusing their children. Vanessa testified that she had not told Cook that Anthony had abused their children, but that she was concerned that he could do so due to his drug and alcohol use.

¶ 8 On or about June 30, 2017, Cook and Vanessa engaged in an exchange of messages with the plan of finding Anthony in the presence of his mother, McGowan. The goal was to obtain photographic proof that Anthony was violating a parole condition, turn the proof over to law enforcement, and hopefully have Anthony sent to prison for a parole violation. Vanessa acknowledged that she provided Cook with specific times and places when she knew that McGowan was going to be providing Anthony with transportation. Cook responded that he was "going to be in the area and catch a picture of [Anthony and McGowan] to send to [the] paroleboard along with my letter." Later that same date, Cook informed Vanessa that he had a friend drive him there, so that Anthony and McGowan would not recognize the car. Cook went to the location where Anthony was taking a class and saw McGowan drop him off "down the road." The following day, Cook messaged Vanessa that the letter was drafted, and that he planned to meet with a police officer to see if Anthony would be arrested for violating the conditions of his parole.

¶ 9 Whether Cook met with a police officer to provide information about Anthony's parole violation and whether Anthony was sent back to prison for a parole violation related to this June 30, 2017, event are not indicated in the record.

¶ 10 Both Cook and Vanessa testified at the plenary hearing that this was the only time that Cook followed through on the information she provided him. There had been additional opportunities, but June 30, 2017, was the only attempt made to obtain photographic proof that Anthony was violating the terms of his parole by being with his mother, McGowan. Cook further explained that he did not "follow" McGowan, but merely drove to a place where Vanessa told him McGowan would be with her son, and waited for the two to arrive. On two other occasions, Vanessa contacted Cook with information about the time and place when Anthony and McGowan would be together, and Cook called local law enforcement and provided information regarding Anthony's potential parole violation. Whether Anthony and McGowan were together on those other two occasions is not indicated in the record.

¶ 11 Cook and Vanessa both testified about their motivations for attempting to catch Anthony in a parole violation. Cook stated that he tried to document a parole violation because Anthony was a hazard to himself and to his children due to drug and alcohol use. Vanessa testified that she was angry with Anthony and wanted him to return to prison.

¶ 12 McGowan testified at the plenary hearing that she did not know that Cook had followed or watched her and Anthony until Anthony discovered the Facebook messages between Cook and Vanessa in late September 2017. On the basis of those messages, McGowan asked the court to enter an emergency stalking no contact order. The court entered this order on September 29, 2017.

¶ 13 The court set a hearing for a plenary stalking no contact order for October 18, 2017. The record reflects that service was obtained on Cook approximately one week before the hearing. Cook and an attorney appeared in court for the hearing. Cook did not file an answer or other responsive pleading, but participated in the hearing.

¶ 14 At the hearing, McGowan testified that she was aware that being with her son, Anthony, constituted a parole violation. The court asked McGowan if there were any additional incidents, other than June 30, 2017, to which McGowan replied: "Not that I can see through these [Facebook messages]."

¶ 15 McGowan also testified that she had a history of severe post-traumatic stress disorder (PTSD) as a result of sexual trauma that occurred when she served in the military. She said that since she learned that Cook had followed her, her PTSD symptoms had reemerged, and she described her mental status as fearful and emotionally distraught. She also said that during her brief friendship with Cook, she had discussed her history of PTSD with him several times. In response, Cook testified that he had no previous knowledge that McGowan suffered from PTSD.

¶ 16 At the conclusion of the plenary hearing, the trial court stated that it found that McGowan was the victim of two or more acts of monitoring or surveillance and that as a result she had suffered emotional distress. The court further found that Cook would continue to engage in these activities if it did not enter a more permanent order. The court entered the plenary order onOctober 18, 2017, barring Cook for two years from in person or third party contact with McGowan that could be construed as stalking or threatening and from coming within 500 feet of McGowan's home.

¶ 17 Counsel for Cook asked the trial judge to specify the particular "two or more acts" of monitoring or surveilling McGowan on which the court based its decision. The trial judge responded as follows:

"The course of conduct would be those two or more acts not limited to the acts which [Cook] directly or indirectly through the third party—and the third party would be the witness that was involved—the direct contact, the monitoring, not only the one where the picture was taken but also the one concerning the times that [McGowan] was *** dropping her son off at the school. Both of the two acts that the Court noted."

¶ 18 Cook filed a motion to reconsider, arguing that...