Stock v. Pearce

1

2024 IL App (4th) 230719-U

KIM D. STOCK and SCOTT K. PEARCE, Petitioners-Appellees, v. KENNETH MAX PEARCE, Respondent-Appellant.

Nos. 4-23-0719, 4-23-0720 cons.

Court of Appeals of Illinois, Fourth District

April 25, 2024

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Whiteside County Nos. 23OP10 23OP11 Honorable Stanley B. Steines, Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Presiding Justice Cavanagh and Justice Turner concurred in the judgment.

ORDER

DeARMOND, JUSTICE

¶ 1 Held: The appellate court reversed and remanded finding the trial court's failure to provide respondent an opportunity to conclude his cross-examination of petitioners violated respondent's due process rights.

¶ 2 In January 2023, petitioners, Kim D. Stock and Scott K Pearce, filed petitions for emergency and plenary orders of protection against their father, respondent, Kenneth Max Pearce, pursuant to section 214 of the Illinois Domestic Violence Act of 1986 (750 ILCS 60/214 (West 2022)). The trial court denied the emergency orders of protection.

¶ 3 Beginning in May 2023, the trial court conducted a series of evidentiary hearings on petitioners' requests for plenary orders of protection. The court entered plenary orders of protection on August 8, 2023, set to expire two years from that date.

¶ 4 Respondent appeals, arguing he was deprived of his procedural due process rights when the trial court failed to provide him an opportunity to conclude his cross-examination of Scott or confront and cross-examine Kim after they failed to appear on the sixth day of proceedings. We reverse and remand for further proceedings.

¶ 5 I. BACKGROUND

¶ 6 In January 2023, petitioners filed petitions for emergency and plenary orders of protection, alleging respondent (1) threatened Scott, (2) brandished a firearm when petitioners arrived at 9 p.m. on March 10, 2016, "to inspect the family home [and] to inventory items in the home" where respondent lived, (3) reached for a holstered firearm while entering the post office in Erie, Illinois, on June 25, 2022, as petitioners exited, and (4) on November 13, 2022, threatened petitioners "through others" on social media after he "lured" them to an auction held at the home. The trial court denied the petitions seeking emergency orders of protection.

¶ 7 Beginning in May 2023, the trial court conducted six days of hearings over the course of several months to determine whether to grant the petitions seeking plenary orders of protection. The hearings were also consolidated with two petitions for rule to show cause, filed by petitioners, alleging respondent failed to comply with the court's orders in separate matters unrelated to the instant appeal. At the outset of the proceedings, the parties agreed respondent would "go first," and the parties "would put the witness[es] on and then do cross-examination back and forth and it would apply in all the cases." During the hearings, the court heard testimony from Scott, respondent, local community members, police officers, and family friends. The parties also submitted numerous exhibits, including a video of the encounter at the post office, which the court observed. We summarize only the evidence presented at the hearings relevant to the disposition of this appeal.

¶ 8 Respondent testified he was 91 years old. He stated he made a handshake deal with an auctioneer located somewhere in the Quad Cities to sell all his firearms-two handguns and four long guns-for $450 sometime in 2017. Respondent denied handling a firearm or owning one at any point since. He acknowledged lying to Erie's chief of police, Brian Hawk, when asked if he had ever owned a pistol during his conversation with Hawk after the post office incident. Regarding that encounter, respondent testified he was unaware petitioners were present at the post office when he picked up his mail on June 25, 2022. According to respondent, he opened the door to the building as petitioners exited. He asked petitioners if they received any mail, but they "never said a thing, they walked down to their car." Respondent then continued to hold the door for two other individuals before walking inside.

¶ 9 Following respondent's testimony, respondent's trial counsel indicated some of petitioners' witnesses were "out in the hall" and requested to "just put them on." Counsel explained, "Nobody is going to rest. We're just going to go back and forth."

¶ 10 Scott, respondent's son, then testified he and respondent "never did get along." He described respondent as "passive-aggressive." He accused respondent of being physically and verbally abusive throughout his youth. Scott testified he stopped by the post office in Erie after visiting his mother's grave on June 25, 2022. Scott and Kim went inside to pick up his mail while other family members waited outside in his vehicle. On their way out of the post office, Scott saw respondent "squared up in the doorway" with his coat "pulled back." Scott claimed respondent had his right hand by a holstered handgun on his hip. He also claimed respondent "had that look of *** I got you where I want you." According to Scott, he managed to extricate himself from the confrontation by turning sideways and "scoot[ing] to the left" to get around respondent, while respondent "stayed in the door." Kim "came out the same way." Scott did not report the incident to the police.

¶ 11 During a break in Scott's testimony on the third day of proceedings, the trial court observed "an ambulance that had pulled up to the courthouse." Petitioner's trial counsel confirmed the ambulance was for Kim, who, counsel stated, was "crying quite hysterically [and] having a panic attack" after respondent allegedly" 'stuck his tongue out at [her].'" Counsel also alleged respondent's attorney told Kim to "go home" after the bailiff removed another individual from the courtroom. The court thereafter continued the proceedings until June 13, 2023.

¶ 12 Scott resumed his testimony at that next hearing. However, while cross-examining Scott, respondent moved for a continuance due to unanswered responses to written discovery requests about which he wished to question Scott. Over petitioners' objection, the trial court granted the motion and scheduled a hearing for July 26, 2023, to hear arguments on the matter. The court also scheduled a hearing for August 8, 2023, to resume Scott's testimony.

¶ 13 Petitioners failed to appear for the hearing on August 8, 2023. In requesting a continuance, petitioners' trial counsel mentioned Kim's previous "health episode" and told the trial court the proceedings had been "very stressful for her." According to counsel, "[I]t was not advised for [Kim] to travel up yet and that she needed more time." Counsel also explained that once Scott realized Kim-a "key witness for the events at issue"-was not going to be present, he too chose not to appear, citing a "business reason." Additionally, counsel indicated petitioners were unlikely to appear for the remaining hearing dates. Respondent objected to the continuance, arguing it was not appropriate under the circumstances because the parties had known of the current hearing date for a "long time." Respondent also noted he "had witnesses lined up for this afternoon." Ultimately, the court denied the motion to continue, noting Scott's absence was "certainly voluntary," and it was unknown "when [Kim would] be able to ever appear in these proceedings."

¶ 14 Following the parties' closing arguments, the trial court concluded the petitions seeking plenary orders of protection had been proven. In explaining its findings, the court determined "the credibility of all parties is at issue here," despite its own recognition that it had not heard any testimony from Kim. However, the court believed it had "heard enough evidence otherwise and she was the one that [sic] was present at the post office." In the court's opinion, "the most serious allegation [was] *** the post office incident." The court noted respondent's acknowledgment that he lied about owning a pistol, and it was "unclear from [respondent's] testimony as to when those firearms were disposed of or sold." The court also believed respondent "did have *** a pistol" with him at the post office, which the court based "a lot *** on the lines of [respondent] lying about the direct questions as it relates to this exact investigation." The court then entered plenary orders of protection containing an expiration date of August 8, 2025.

¶ 15 This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 On appeal, respondent argues he was deprived of his procedural due process rights where the trial court provided him no opportunity to conclude his cross-examination of Scott or to confront and cross-examine Kim after they failed to appear on the sixth day of proceedings. Petitioners counter by asserting respondent forfeited this issue by failing to raise it in the trial court, or, alternatively, he waived the argument when he objected to their request to continue the proceedings. Even if that was true, forfeiture is a limitation on the parties, not the court, and we may exercise our discretion to review otherwise forfeited issues. People v. Rajner, 2021 IL App (4th) 180505, ¶ 23, 189 N.E.3d 472. We may overlook a party's forfeiture of an issue "when necessary to obtain a just result." Curtis v. Lofy, 394 Ill.App.3d 170, 188, 914 N.E.2d 248, 263 (2009). Here, the bizarre circumstances in this case highlight the need for a just result, so we choose to address this issue despite respondent's forfeiture.

¶ 18 Likewise, we decline petitioners' invitation to invoke the...