FILED

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

-2- 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

-3- 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

-4- 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

-5- 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,

(citing People

v. Witherspoon,

,

). “Where statutory language is clear and

unambiguous, courts should apply the statute as written.”

(citing People v. Eppinger,

,

). Further, statutes should be read as a whole and construed so no

part of the text is rendered meaningless or superfluous.

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.

“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,

,

(quoting Sulser v. Country Mutual Insurance Co.,

,

(1992)).

¶ 33 The Act “shall be liberally construed and applied to promote its underlying

-6- 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.

§ 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

-7- 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,

,

. 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.”

¶ 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

-8- 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,

,

. 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:

-9- “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.,

,

(1991).

¶ 46 In Vantage Hospitality Group, Inc. v. Q Ill Development, LLC,

,

, 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.)

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,

,

(citing People v. Masterson,

, 958

- 10 - 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.

- 11 - No. 4-20-0188

Cite as: Dale v. Bennett,

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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