Benjamin v. McKinnon

NOS. 4-07-0079, 4-07-0080 cons. Filed 2/26/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

LONNA BENJAMIN, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. (No. 4-07-0079) ) Pike County
TERRY McKINNON, ) Nos. 06OP17
Defendant-Appellant. ) 06OP18
-------------------------------------- )
LONNA BENJAMIN, )
Plaintiff-Appellee, )
v. (No. 4-07-0080) ) Honorable
JEREMY McKINNON, ) Michael R. Roseberry,
Defendant-Appellant. ) Judge Presiding.

_________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

In separate April 5, 2006, petitions, plaintiff, Lonna

Benjamin, sought orders of protection against defendant Terry

McKinnon and defendant Jeremy McKinnon, Terry's son. That same

day, the trial court granted ex parte emergency orders of protec-

tion against both defendants. In June 2006, plaintiff filed

amended order-of-protection petitions. After a September 2006

hearing on the amended petitions, the court granted plaintiff an

order of protection for one year against Jeremy but denied her

one against Terry. Jeremy filed a motion to reconsider, and

Terry filed a motion for sanctions under Supreme Court Rule 137

(155 Ill. 2d R. 137). After a January 2007 hearing, the court

denied both motions.

Defendants appeal, asserting (1) the order of protec-
tion against Jeremy should be vacated because Jeremy does not

fall under the definition of "family or household member" and (2)

the trial court erred by denying Terry's Rule 137 motion. We

affirm.

I. BACKGROUND

Plaintiff sought an order of protection against Jeremy

and Terry based on a verbal skirmish that took place at her

residence in the early morning hours of April 1, 2006. In her

order-of-protection petitions, plaintiff marked "other related by

blood or marriage" as her relationship to Jeremy and Terry. The

trial court granted plaintiff emergency orders of protection

against defendants. In May 2006, Terry filed a motion to dis-

miss, asserting, inter alia, that he was not related by blood or

marriage to plaintiff. He noted one of his children had been

married to one of plaintiff's children but that the couple

divorced in October 2005. After a June 2006 hearing, the court

denied Terry's motion. (A transcript of that hearing is not

included in the record on appeal.)

On September 6, 2006, the trial court held a hearing on

the petition for plenary orders of protection. Lonna testified

on her own behalf. She stated that at approximately 2 a.m. on

April 1, 2006, she was watching television when she heard a

vehicle "come barreling down the street." She looked out the

window and saw the vehicle stopped for approximately a minute at

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a stop sign. She said the pickup truck she saw looked to her

like Jeremy's. She then heard the truck "rev just like someone

laid on the gas pedal, just revved up." Lonna estimated her

house to be about 40 to 50 feet from the stop sign. Lonna stated

that the truck drove past the stop sign, stopped, and then Jeremy

got out of the vehicle.

Lonna went outside to the front porch. Lonna

testified, "[Jeremy] was yelling and screaming that--saying

[']that pussy mother--send that pussy mother fucker out so I can

beat his ass.[']" Lonna testified she knew Jeremy to be

referring to her son Lucas because Lucas and Jeremy "have had

history." Lonna stated that she asked Jeremy to leave the

property and that he responded that he "'would kill all you

mother fuckers.'" She again told Jeremy to leave the property.

Jeremy did not leave, and Lonna and Jeremy "argued back and

forth."

Eventually, Jeremy exited the yard and moved to the

side of the street. Lonna testified, "[Jeremy] was calling me

all kinds of filthy names." She stated that Jeremy referred to

her as a "bitch" and a "whore." She said, "[Jeremy] grabbed his

private parts and said, [']I can touch you in places you've never

been touched before.[']"

Lonna testified that it was then that she noticed her

husband Larry, her sons Lucas and Logan, and Logan's girlfriend

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Billy Jo Surratt, were all outside on the porch. Lonna stated

that Jeremy was trying to get Lucas to come down to the street.

She said Jeremy threatened to kill Lucas and the whole family.

She stated that she had reason to be fearful of Jeremy because

her grandchildren were inside the house and because "anybody that

would come to someone's house at that hour of the morning I think

that they would act on their words."

Approximately three and five minutes after Jeremy

arrived, his father Terry also arrived at the Benjamins' house.

Lonna testified that Terry "jokingly" tried to get Jeremy back in

his truck. As Terry was driving off, Lonna stated the he pointed

to her son Logan and said "something to the effect of [']that's

right, you better leave, slugger,['] or something like that."

She testified that Terry pointed his finger at Logan and said,

"['][Y]ou better watch your ass, boy, or you'll get some of it

too.[']"

Lonna testified that she feared Terry because she knew

that he had been convicted for stabbing his own nephew. She said

the actions of both Jeremy and Terry made her extremely upset.

She said Jeremy appeared to be under the influence of alcohol

that night. She said Jeremy was "extremely loud" and that he had

slurred speech. She also observed that he was staggering. She

testified that he appeared to be drunk "or impaired in some way."

Lonna's husband, Larry, also testified that he observed

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the events that night as Lonna described and that Jeremy's

behavior caused him to be extremely upset. He testified, "You

know, any time someone threatens to kill my whole family, yes,

it's upsetting." Larry testified that he could not recall

exactly what Lucas was saying in response to Jeremy; however,

Larry recalled Lucas indicating that if Jeremy came into their

yard he would beat him up.

On cross-examination, Larry testified that there was

"bad blood" between the two families. When asked whether the bad

blood was caused by criminal activity, namely Lucas's home

invasions, Larry responded that "[a] lot of that has to do with

[Jeremy] threatening my family." Larry testified that Lucas had

been arrested because of complaints made by Terry's daughter and

Jeremy's sister (and Lucas's former wife), Tara. Larry could not

recall whether Lucas had been arrested for home invasion. Larry

denied that Lucas had a reputation for being a troublemaker. On

the night in question, Larry stated that his youngest son, Logan,

told Terry that he "better go on down the street" which elicited

Terry's response, "['][Y]ou better watch your ass boy. You're

going to get some of it too.[']"

Billy Jo Surratt testified that she was Logan's

girlfriend and living in the Benjamins' house at the time. She

also observed the events that night around 2 a.m. outside the

Benjamins' house. She testified she heard Jeremy tell Lonna he

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was going to kill her whole family. She also heard Jeremy call

Lonna a "bitch" and a "whore." After Terry arrived, Billy Jo

testified she went back inside the house and did not observe

anything further. On cross-examination, Billy Jo testified that

she initially went outside to the porch because she heard an

engine "revving" outside. She testified that she only heard what

Jeremy said while the argument ensued outside on the porch and

could not recall what anyone else said.

At the conclusion of plaintiff's evidence, defense

counsel made a motion for a directed judgment asserting plaintiff

had failed to establish a family relationship between the

parties. Plaintiff's attorney responded they had already

litigated the matter on Terry's motion to dismiss. The trial

court noted the issue of a family relationship had already been

brought before the court and denied the motion for a directed

judgment.

Lonna was called as an adverse witness by Jeremy and

Terry. She testified that Lucas had pending court cases

involving Class X felonies. The victim in those cases was her

son Lucas's ex-wife Tara, Jeremy's sister and Terry's daughter.

Lonna testified that Lucas's felony charges were pending when she

filed the petition.

When asked whether she had any family relationship with

Terry at all, Lonna answered, "I don't know how to answer that."

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She also testified that she was not Jeremy's mother-in-law.

Terry testified that when he arrived at the Benjamins'

that night, he did not observe anyone threaten anyone else. He

stated Jeremy did not punch anyone and he did not go onto the

Benjamins' property. He said that he observed Jeremy in the

street arguing with Lucas. Terry testified that Lucas's actions

were, "[l]ike Jeremy's. They were just a word battle is all it

was." Terry did not observe Jeremy grab his crotch. Terry

testified Lucas got his dog, which "looked like some kind of a

lab maybe, golden lab, pretty good size dog." He said he did not

know whether Lucas had the dog by a chain or the collar, but he

was trying to "sic" the dog on Jeremy but the dog would not do

it. Terry said eventually he got Jeremy in his truck and went

back to his truck to leave. At this point, Terry testified the

McKinnons were calling him "[']fat ass, queer, and baldy.[']" He

could not recall exactly who was saying these things to him.

Terry stated that he laughed at them while he was walking back to

his truck because they were calling him these names. Terry

denied that he threatened Logan while he was leaving.

On cross-examination, Terry testified that it was Cindy

McKinnon, his ex-wife, who called him that night and told him to

go to the Benjamins' house to get Jeremy. Terry testified he

went to the Benjamins' house because he did not want to see

Jeremy get in trouble. Terry testified that he had not been

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drinking that night and that he does not drink. He testified

that he did have a conviction in Calhoun County for aggravated

battery.

Jeremy testified that earlier in the evening he had

been at Palace, a bar in Calhoun County. He stated that he saw

Lucas at the bar with Jeremy's sister and Lucas's ex-wife, Tara,

although Tara had been issued an order of protection preventing

Lucas from being near her. The trial court took judicial notice

of this order. Jeremy said that he and Lucas "had words" at the

bar. Jeremy testified that he asked Lucas to leave the bar, but

Lucas refused. Jeremy said he left the bar with his cousin Greg;

and when they returned to the bar, Lucas and Tara were gone.

Jeremy testified, "I got upset, and that's why I went

into Pleasant Hill [(where the Benjamins lived)] and done what I

done." Jeremy stated that he went first to his sister Tara's

house to look for her. When he did not find her at home, he

went to the Benjamins' house to search for Tara. Jeremy denied

that he was barreling down the road or revving his engine when he

approached the Benjamins' house. He stated that he stopped his

car because Lucas came running out into the yard and saying,

"[B]ring it on, little pussy, come on, come on." Jeremy

testified that Lucas "kept going, [']bang, you're dead, bang,

you're dead.[']" Jeremy said that he got scared, turned around

and started to return to his truck, and Lucas called him "a

- 8 -
pussy." Jeremy stated that he went to the edge of the Benjamins'

property but that he never set foot in their yard. Jeremy

testified that his father, Terry, eventually showed up and

quietly asked him to get into his truck. Jeremy said he went to

Terry's truck and Terry said, "[C]ome on, let's go home."

Jeremy stated that Lucas brought his dog outside and

kept laughing as he told the dog to "sick [sic] him, boy, sick

[sic] him." Jeremy testified that he was not related to Lonna,

Luke, or Larry.

On cross-examination, Jeremy said Terry had to persuade

him to leave the Benjamins' property. He said he was very angry

and not ready to leave. Jeremy said that he was begging Lucas to

come out for a fight. Jeremy said, "I'm going to tell you why I

was beggin [sic] him to come out to the road. When you show up

at somebody's house walking toward them and they act like they've

got a gun, [']bank [sic] your dead, bank [sic] your dead,[']

wouldn't that upset you?" He said, "When I started walking back,

I didn't know what was going to happen. When you have a guy

calling you names, [']pussy, faggot,['] whatever was said, it

does flare the temper a bit."

On redirect examination, Jeremy testified that he did

not originally go to Lucas's house looking for a fistfight but

instead wanted to see if his sister Tara was safe. During the

hearing, no evidence or testimony was presented by either party

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as to where Tara was located after she left the bar that evening.

During closing arguments, defense counsel again

contended no family relationship existed among the parties.

The trial court issued a plenary order of protection

against Jeremy and denied the order against Terry. The court

disagreed with defendants, finding a sufficient relationship

existed for the issuance of an order of protection based on the

fact Jeremy was the brother and Terry was the father of

plaintiff's son's ex-wife, Tara. The court stated:

"Certainly ex-relationships are as protected

as existing relationships, at least according

to the language of the Order of Protection

Act. This certainly seems to me to be a case

where that relationship should apply and

where an order of protection should enter if

there were sufficient factual bases to

support it."

The court concluded the evidence was sufficient to grant an order

of protection for one year against Jeremy only, as Terry's

actions were reasonable under the circumstances. The court

issued a written order of protection against Jeremy effective

until 9 a.m. on August 31, 2007.

On September 22, 2006, Jeremy filed a motion to

reconsider the trial court's order, again asserting no family

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relationship existed. Also on September 22, 2007, Terry filed a

motion for sanctions pursuant to Supreme Court Rule 137,

asserting, inter alia, plaintiff filed her petition for an order

of protection knowing she had no family relationship with him.

155 Ill. 2d R. 137. After a joint January 2007 hearing, the

trial court denied both of the motions. Jeremy (No. 4-07-0080)

and Terry (No. 4-07-0079) appealed, and we consolidated the

appeals.

II. ANALYSIS

A. Lack of Appellee Brief

Plaintiff has not filed a brief on appeal. A reviewing

court is not compelled to serve as an advocate for the appellee

and is not required to search the record for the purpose of

sustaining the trial court's judgment. However, if the record is

simple and the claimed errors are such that the reviewing court

can easily decide them without the aid of an appellee's brief,

that court should decide the merits of the appeal. On the other

hand, "if the appellant's brief demonstrates prima facie

reversible error and the contentions [in] the brief find support

in the record," the trial court's judgment may be reversed.

First Capitol Mortgage Corp. v. Talandis Construction Corp., 63

Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).

B. Order of Protection

Since the order of protection against Jeremy has

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expired on its own terms on August 31, 2007, we must begin by

addressing whether the doctrine of mootness applies to Jeremy's

challenge to the order. An issue raised on appeal becomes moot

when the issue no longer exists due to events occurring after the

filing of appeal that make it impossible for the appellate court

to grant effective relief. Lutz v. Lutz, 313 Ill. App. 3d 286,

288, 728 N.E.2d 1234, 1236 (2000). Even assuming the order of

protection's expiration rendered Jeremy's issue formally moot, we

find his issue reviewable under the public-interest exception to

the mootness doctrine. See Lutz, 313 Ill. App. 3d at 288, 728

N.E.2d at 1236 (applying the exception to an expired order of

protection).

Jeremy asserts the order of protection entered against

him should be vacated because he is not "a family or household

member" of plaintiff. Jeremy's issue is a matter of statutory

interpretation, which presents a question of law; and thus our

review is de novo. People v. Palmer, 218 Ill. 2d 148, 154, 843

N.E.2d 292, 296 (2006).

In interpreting statutes, courts seek to ascertain and

give effect to the legislature's intent. A court begins by

examining the statute's language. The words are given their

plain and commonly understood meanings as viewed, not in

isolation, but in light of the statute's other relevant

provisions. When a statute's language is clear and unambiguous,

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it will be given effect without resort to statutory-construction

tools. State Board of Elections v. Shelden, 354 Ill. App. 3d

506, 512, 821 N.E.2d 698, 704 (2004). This case involves the

Illinois Domestic Violence Act of 1986 (Domestic Violence Act)

(750 ILCS 60/101 through 401 (West 2006)), which contains a

provision regarding construction (750 ILCS 60/102 (West 2006)).

The Domestic Violence Act, by its very language, was intended to

be applied broadly. The Domestic Violence Act states that it

"shall be liberally construed and applied to promote its

underlying purposes," which the legislature then lists. 750 ILCS

60/102 (West 2006). The first purpose of the Domestic Violence

Act is as follows:

"(1) Recognize domestic violence as a

serious crime against the individual and

society which produces family disharmony in

thousands of Illinois families, promotes a

pattern of escalating violence which

frequently culminates in intra[]family

homicide, and creates an emotional atmosphere

that is not conducive to healthy childhood

development[.]" 750 ILCS 60/102(1) (West

2006).

If the trial court finds the plaintiff "has been abused by a

family or household member," then the Domestic Violence Act

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provides that "an order of protection prohibiting that abuse,

neglect, or exploitation shall issue." 750 ILCS 60/214(a) (West

2006). Section 103(6) of the Domestic Violence Act (750 ILCS

60/103(6) (West 2006)) defines "'[f]amily or household members'"

as including the following:

"spouses, former spouses, parents,

children, stepchildren[,] and other persons

related by blood or by present or prior

marriage, persons who share or formerly

shared a common dwelling, persons who have or

allegedly have a child in common, persons who

share or allegedly share a blood relationship

through a child, persons who have or have had

a dating or engagement relationship, persons

with disabilities and their personal

assistants, and caregivers as defined in

paragraph (3) of subsection (b) of [s]ection

12-21 of the Criminal Code of 1961 [(720 ILCS

5/12-21(b)(3) (West 2006))]." (Emphases

added.) 750 ILCS 60/103(6) (West 2006).

The specific statutory language at issue in this case is the

language "other persons related by blood or by present or prior

marriage." 750 ILCS 60/103(6) (West 2006). In the present case,

Lonna's son, Lucas, was formerly married to Jeremy's sister,

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Tara. Jeremy is, therefore, clearly Lucas's former brother-in-

law. Jeremy is then Lonna's former daughter-in-law's brother.

Terry's relationship to Lonna is Lonna's son's former father-in-

law.

Jeremy and Terry argue that these relationships were

not intended to be included in the language of the Domestic

Violence Act. They argue that "related by marriage" is commonly

understood to mean one's "in-laws," such as father-in-law,

mother-in-law, sister-in-law, brother-in-law, son-in-law, and

daughter-in-law. See Gary-Wheaton Bank v. Meyer, 130 Ill. App.

3d 87, 93, 473 N.E.2d 548, 553 (1984) (noting the defendant was

"related by marriage" to his mother-in-law).

"Related by marriage" is synonymous with "related by

affinity." See, e.g., Merriam-Webster's Collegiate Dictionary

1050 (11th ed. 2003) ("relative *** a person connected with

another by blood or affinity"). There are degrees of affinity.

"Direct affinity" is "[t]he relationship of a spouse to the other

spouse's blood relatives," such as "a wife and her husband's

brother." Black's Law Dictionary 63 (8th ed. 2004). "Collateral

affinity" is "[t]he relationship of a spouse's relatives to the

other spouse's blood relatives," such as a "wife's brother and

her husband's sister." Black's Law Dictionary 63 (8th ed. 2004).

The relationship between Lonna and Jeremy and Lonna and

Terry is not fortuitous. These parties were relatives by virtue

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of Lucas and Tara's prior marriage. Therefore, Jeremy and Terry

were Lonna's relatives by collateral affinity.

Pratt v. Lasley, 213 S.W.3d 159, 160 (Mo. App. 2007),

supports this statutory interpretation. In Pratt, the court

concluded that two men who were married to sisters were related

by secondary affinity such that one could obtain an order of

protection against the other. Pratt, 213 S.W.3d at 160. No

direct affinity existed in that case. The defendant argued that

while he was related by marriage to his wife's sister, he was not

related by marriage to her sister's husband. Pratt, 213 S.W.3d

at 160. Nevertheless, "collateral affinity" existed, and the

court, quoting Black's Law Dictionary, held that an order of

protection was properly granted. Applying that logic to the

present case, any of Lucas's siblings could have obtained an

order of protection against any of Tara's blood relatives,

including her father, Terry, and her brother Jeremy. Lucas's

mother should be allowed to do so also, as the same degree of

relationship is present.

Such a liberal interpretation of "persons related by

prior marriage" is supported by section 102 of the Domestic

Violence Act, which states, "This Act shall be liberally

construed and applied to promote its underlying purposes." 750

ILCS 60/102 (West 2006). One of those stated purposes is to

prevent escalating intrafamily violence. Certainly, the present

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case commenced as a result of escalating intrafamily violence

that included not only the formerly married couple, Lucas and

Tara, but also their siblings and parents. Based on this stated

purpose of the Domestic Violence Act, the relationship between

Jeremy, Terry, and Lonna, which resulted from the marriage of

their immediate family members, is precisely one type of

relationship the Domestic Violence Act was intended to address.

Because the Domestic Violence Act provides for a

liberal construction of the term "family member," courts should

recognize brothers and parents of two formerly married people as

included in the term "family member" or "persons related by ***

prior marriage." Moreover, as applied in this case, inclusion of

siblings and parents of formerly married spouses as "family

members" promotes the Domestic Violence Act's stated purpose of

eliminating intrafamily violence. Therefore, we affirm the order

of protection entered against him.

C. Rule 137 Sanctions

Terry contends the trial court erred by denying his

Rule 137 motion for sanctions because plaintiff falsely pleaded a

family relationship existed between them when one did not.

The decision whether to impose sanctions under Rule 137

rests within the trial court's sound discretion, and a reviewing

court will not overturn that decision unless the trial court has

abused that discretion. Dowd & Dowd, Ltd. v. Gleason, 181 Ill.

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2d 460, 487, 693 N.E.2d 358, 372 (1998). A trial court abuses

its discretion when no reasonable person could take the view it

adopted. Technology Innovation Center, Inc. v. Advanced

Multiuser Technologies Corp., 315 Ill. App. 3d 238, 244, 732

N.E.2d 1129, 1134 (2000).

This court has held Rule 137 (155 Ill. 2d R. 137)

sanctions may be granted under the following circumstances:

"(1) if either party files a pleading or

motion that to the best of the attorney's

'knowledge, information, and belief' is not

'well grounded in fact' and is not 'warranted

by existing law or a good-faith argument for

the extension, modification, or reversal of

existing law,' or (2) if the pleading or

motion is interposed to 'harass or to cause

unnecessary delay or needless increase in the

cost of litigation.'" (Emphasis omitted.)

Miller v. Bizzell, 311 Ill. App. 3d 971, 976,

726 N.E.2d 175, 179 (2000), quoting 155 Ill.

2d R. 137.

We disagree with Terry that he and plaintiff were not

family members related by a prior marriage. Therefore,

plaintiff's argument was not only a good-faith interpretation of

the Domestic Violence Act as demonstrated by the trial court's

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concurrence with her interpretation but also a successful one.

Accordingly, we find the trial court did not abuse its discretion

by denying Terry's Rule 137 motion.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgments.

No. 4-07-0079, Affirmed.

No. 4-07-0080, Affirmed.

COOK, J., concurs.

TURNER, J., specially concurs in part and dissents in

part.

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 JUSTICE TURNER, specially concurring in part and

dissenting in part:

While I concur in the majority's conclusion the trial

court did not abuse its discretion by denying Terry's Rule 137

motion (No. 4-07-0079), I respectfully dissent from its

affirmation of the trial court's order of protection against

Jeremy (No. 4-07-0080).

I fully appreciate the majority's desire to uphold one

of the Domestic Violence Act's stated purposes "to prevent

escalating intra[]family violence." Nonetheless, there must be

some set parameters to determine when and if people are related

by marriage.

As defendants note, "related by marriage" is commonly

understood to mean one's "in-laws," such as father-in-law,

mother-in-law, sister-in-law, brother-in-law, son-in-law, and

daughter-in-law. See Gary-Wheaton Bank, 130 Ill. App. 3d at 93,

473 N.E.2d at 553 (noting the defendant was "related by marriage"

to his mother-in-law). The term "in-law" is defined as "a

relative by marriage." Black's Law Dictionary 802 (8th ed.

2004); Merriam-Webster's Collegiate Dictionary 644 (11th ed.

2003). Thus, the language of the statute is almost identical to

the definition of "in-law." Clearly, Jeremy is Lucas's former

brother-in-law, but none of the aforementioned "in-law" terms

would apply to Lonna's relationship to Jeremy. Similarly, Terry

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is Lucas's former father-in-law, but again none of the

aforementioned terms would apply to Lonna's relationship to

Terry. I agree with defendants, no commonly understood term

describes the relationship between a parent and his or her

child's in-laws. Additionally, a parent's child's in-laws are

not commonly understood to be the parent's relations by marriage,

just the child's. Thus, I conclude Lonna's relationship to

Jeremy and Terry does not fall under the plain and ordinary

meaning of "related by *** prior marriage." 750 ILCS 60/103(6)

(West 2006).

The majority reaches the opposite result, finding

Jeremy and Terry were Lonna's "relatives by collateral affinity."

The majority's analysis is flawed for several reasons. First,

the statute does not use the term "relatives by collateral

affinity," and it is not this court's function to insert

terminology into the statute the legislature did not see fit to

include. See In re Minor Child Alexis Stella, 353 Ill. App. 3d

415, 417, 818 N.E.2d 824, 826 (2004) ("We cannot read words into

a statute that are not there"). The crux of this case is the

plain and ordinary meaning of "related by *** prior marriage."

750 ILCS 60/103(6) (West 2006).

Second, although I question the majority's conclusion

"'related by affinity'" is synonymous with "'related by

marriage,'" even if it is true, "affinity" is usually described

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as the relationship that the majority refers to as "direct

affinity" (see slip op. at 14). Black's Law Dictionary defines

"affinity" as "[t]he relation that one spouse has to the blood

relatives of the other spouse; relationship by marriage."

Black's Law Dictionary 63 (8th ed. 2004). Moreover, Black's Law

Dictionary provides the following definition for "relative by

affinity": "A person is a relative by affinity (1) to any blood

or adopted relative of his or her spouse, and (2) to any spouse

of his or her blood and adopted relatives." Black's Law

Dictionary 1315 (8th ed. 2004). While Lucas's prior relationship

to Terry and Jeremy would fall under the aforementioned

definitions of affinity and direct affinity, Lonna's relationship

to defendants as Lucas's mother clearly does not.

Third, even if we look to degrees of affinity, the

majority fails to expressly note the term "secondary affinity."

"Secondary affinity" is "[t]he relationship of a spouse to the

other spouse's marital relatives," such as "a wife and her

husband's sister-in-law." Black's Law Dictionary 63-64 (8th ed.

2004). Contrary to the majority's suggestion (see slip op. at

14-15), "secondary affinity" is its own term separate from the

term "collateral affinity." Moreover, on the facts of this case,

secondary affinity would describe Lucas's relationship to the

spouses of Tara's siblings and Tara's relationship to the spouses

of Lucas's siblings, not the relationship between Lucas's

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siblings and Tara's blood relatives as implied by the majority

(see slip op. at 15).

Last, I disagree the Pratt case supports the majority's

interpretation of the statute. While the Pratt court noted the

parties in that case were related by secondary affinity, it

mentioned that term in rejecting the defendant's assertion

"related by marriage" should be limited to relatives by blood or

direct affinity based on the definition of the term "of kin."

See Pratt, 213 S.W.3d at 160, 160 n.2. In actually interpreting

the statute, the Pratt court looked to the plain and ordinary

meaning of "related by marriage" and found that term included

one's brother-in-law. Pratt, 213 S.W.3d at 160. Then citing the

definition of "brother-in-law," the Pratt court found the

defendant and the plaintiff, who were married to sisters, were

brothers-in-law and therefore their relationship fell under the

order-of-protection statute. Pratt, 213 S.W.3d at 160, citing

Black's Law Dictionary 194 (6th ed. 1990); Webster's Third New

International Dictionary 284 (1993). Thus, the Pratt court did

not look to such terms as direct, secondary, and collateral

affinity in interpreting "related by marriage," but rather looked

to the commonly understood meaning of the term. Moreover, even

if it is proper to consider degrees of affinity in interpreting

"related by marriage," the Pratt case still does not support the

majority's conclusion because it involved secondary affinity, not

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the more distant collateral affinity at issue in this case.

As previously indicated, I agree with the majority's

conclusion the trial court did not abuse its discretion by

denying Terry's Rule 137 motion. While I agree with Terry that

he and Lonna were not family members related by a prior marriage

since they were not "in-laws," Lonna's argument was a good-faith

interpretation of the Domestic Violence Act as demonstrated by

the trial court's ruling and by the majority position taken

today.

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