The general rule of pleading is that one must state sufficient facts to support a cause of action. Illinois is a fact pleading state, not a notice pleading state. People ex rel. Fahner v. Carriage Way West, Inc., 430 N.E.2d 1005, 1008–09 (Ill. 1981). See also Hadley v. Doe, 34 N.E.3d 549, 556 (Ill. 2015).
The form complaint in an order of protection case, utilized by everyone in Lake County and probably throughout the state, fails to comply with 735 ILCS 5/2-603(b). “Each separate cause of action upon which a separate recovery might be had shall be stated in a separate count or counterclaim, as the case may be and each count, counterclaim, defense or reply, shall be separately pleaded, designated and numbered, and each shall be divided into paragraphs numbered consecutively, each paragraph containing, as nearly as may be, a separate allegation.” 735 ILCS 5/2-603.
The form complaint is not divided into counts. There are prayers for relief throughout the document interspersed with various allegations all preprinted and marked by checkmarks in little boxes except for the paragraph that sets forth the specifics of what the Defendant allegedly did. That part is prepared by the Petitioner, usually with the help of the people in room D-100, now on the fifth floor of the new tower court building, and sometimes with the help of a lawyer.
Frequently, there is a catch-all paragraph in the narrative about all the bad things that the Defendant did going back months or years. Sometimes, there is no such paragraph and the Petitioner attempts to testify about that. Defendant’s counsel, being up to date on the rules of evidence and the Code of Civil Procedure, objects to the new narrative material presented orally in testimony that is not in the petition. That objection is brought pursuant to the belief that one may not bring in evidence any allegations outside the four corners of the petition. 735 ILCS 5/2-603; 735 ILCS 5/2-612; see also Gonzalez v. Thorek Hosp. & Med. Ctr., 143 Ill. 2d 28, 36 (Ill. 1991).
However, that may not be the law. The Illinois Supreme Court in March 1991 in Gonzalez v. Thorek Hosp. & Med. Ctr., 143 Ill. 2d 28, held “that a complaint is framed once facts are pled that that reasonably inform the opposing party of the nature of the claim or defense which he is called upon to counter, no matter how inartfully or imprecisely that information is presented.” Therefore, may one testify to facts that are not alleged in the complaint?
The Second District decided Sandberg v. Brian on July 18, 2018. It is found at 2018 IL App (2d) 180082. In that case, the parties were never married but they did have a son in common who was born August 1, 2005. The mother obtained an ex-parte emergency order of protection against the father. At the hearing to extend that twenty-one-day order into a plenary order of protection, the mother testified to the allegations contained in her petition and then to some items that were not in her petition. The plenary order of protection was entered. The father did a motion to reconsider. That was denied. Then the father appealed.
In Paragraph 18 of the opinion, the Court acknowledged that proceedings under the Domestic Violence Act are governed by the Code of Civil Procedure. That quote recognizes that no complaint is bad in substance that reasonably informs the Defendant of the nature of the claim that he or she is called on to meet. 735 ILCS 5/2-612 (b) and Chandler v. Illinois Central Railroad Company, 207 Ill. 2d 331, at 348 (2003).
In Paragraph 19 of the opinion, the Court quotes section 214 of the Domestic Violence Act entitled “Order of Protection; Remedies”. The Appellate Court held in Paragraph 20 that the Petitioner “has the burden to establish by a preponderance of the evidence that abuse has occurred. Best v. Best, 223 Ill. 2d 342, 348 (2006).” Sandberg v. Brian, 2018 IL App (2d) 180082, ¶ 20 (Ill. App. Ct. 2nd Dist. 2018).
In Paragraph 21 of the opinion, the Court cites some of the allegations in the Petition for the Order of Protection in which the Mother alleged that the child was terrified of the Father. “It is clear that the allegations in the petition focused specifically on J.B.’s fear of Brian. Therefore, those allegations were specific enough to reasonably inform Brian of the nature of the claim against him.” Sandberg, at ¶ 21.
In Paragraph 22 of the petition, the Court refers to section 214 of the Domestic Violence Act. Brian specifically objected to testimony that he had pushed the son and hit him in the head with a cell phone which was nowhere alleged. In Paragraph 22, the court wrote, because Section 214 of the Domestic Violence Act requires that:
“the trial court shall consider the nature, frequency, severity, pattern, and consequences of the respondent’s past abuse of the petitioner or any family or household member as well as the danger that any minor child will be abused or neglected. Therefore, the trial court was not only allowed to consider the evidence that Brian had recently pushed J.B. and hit him in the head with a cell phone, it was required to do so. For these reasons, we find that the trial court did not err in allowing Jessica to testify about allegations that were not contained in her petition for an emergency order of protection. Citation omitted.” Sandberg, at ¶ 22.
Unless and until the Defendant was to do discovery prior to the hearing to extend the emergency order of protection into a plenary, the Defendant would not know what the testimony would be and therefore is at a grave disadvantage in attempting to fashion a defense and gather his or her own evidence and witnesses.
Therefore, the better practice may be to agree to an extension of the emergency and do discovery before having the hearing on the plenary. Either by interrogatories or deposition the Petitioner could be asked to specify everything that he or she will testify to at the hearing. However, if the discovery does not list everything and the Petitioner attempts to testify to something not provided in discovery, given Paragraph 22 of the Sandberg Opinion, I suspect the trial court will have to let that testimony in regardless.
It is going to be exceedingly easy now for Respondents in order of protection cases to be blindsided or have to defend things that are not specified in the petition if those items testified to fall within Section 214 of the Domestic Violence Act.
By Gary L. Schlesinger and Rachael Bernal
Published in Trial Briefs – The newsletter of ISBA’s Section on Civil Practice & Procedure, September 2018, vol. 65, no. 3