{ "id": 2646027, "name": "NORELL SANDERS, Petitioner-Appellee, v. O.D. SHEPHARD, a/k/a Odell Shephard, Respondent-Appellant", "name_abbreviation": "Sanders v. Shephard", "decision_date": "1989-06-22", "docket_number": "Nos. 1-87-3631, 1-88-2070, 1-88-2100, 1-88-3714 cons.", "first_page": "719", "last_page": "734", "citations": [ { "type": "official", "cite": "185 Ill. App. 3d 719" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "469 N.E.2d 167", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "103 Ill. 2d 266", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152411 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-2d/103/0266-01" ] }, { "cite": "534 N.E.2d 1356", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "179 Ill. App. 3d 806", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2607689 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/179/0806-01" ] }, { "cite": "485 U.S. 624", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13721 ], "weight": 6, "pin_cites": [ { "page": "631" }, { "page": "731" }, { "page": "1429" } ], "opinion_index": 0, "case_paths": [ "/us/485/0624-01" ] }, { "cite": "104 L. Ed. 2d 487", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 605295 ], "weight": 2, "pin_cites": [ { "page": "502" }, { "page": "1902" } ], "opinion_index": 0, "case_paths": [ "/us/490/0435-01" ] }, { "cite": "384 U.S. 364", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12045378 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/384/0364-01" ] }, { "cite": "19 Loy. U. Chi. L.J. 797", "category": "journals:journal", "reporter": "Loy. U. Chi. L.J.", "year": 1988, "opinion_index": 0 }, { "cite": "518 N.E.2d 1303", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1987, "opinion_index": 0 }, { "cite": "165 Ill. App. 3d 630", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3613262 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "638" }, { "page": "634-37" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0630-01" ] }, { "cite": "514 N.E.2d 959", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "118 Ill. 2d 124", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188696 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-2d/118/0124-01" ] }, { "cite": "509 N.E.2d 136", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 526", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3506844 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0526-01" ] }, { "cite": "509 N.E.2d 460", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 438", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3506212 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0438-01" ] }, { "cite": "468 F.2d 1368", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 247563 ], "opinion_index": 0, "case_paths": [ "/f2d/468/1368-01" ] }, { "cite": "553 F.2d 1154", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 970826 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/f2d/553/1154-01" ] }, { "cite": "484 F.2d 1215", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 238422 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f2d/484/1215-01" ] }, { "cite": "518 F.2d 955", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1121870 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/518/0955-01" ] }, { "cite": "50 U. Chi. L. Rev. 326", "category": "journals:journal", "reporter": "U. Chi. L. Rev.", "year": 1983, "opinion_index": 0 }, { "cite": "544 P.2d 17", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1983, "opinion_index": 0 }, { "cite": "355 N.W.2d 401", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10668188 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nw2d/355/0401-01" ] }, { "cite": "464 A.2d 228", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1984, "opinion_index": 0 }, { "cite": "296 Md. 347", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1987807 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/md/296/0347-01" ] }, { "cite": "509 N.E.2d 1117", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11025858, 11025815 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ne2d/509/1117-02", "/ne2d/509/1117-01" ] }, { "cite": "481 A.2d 1293", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1987, "opinion_index": 0 }, { "cite": "40 Conn. Sup. 111", "category": "reporters:state", "reporter": "Conn. Super. Ct.", "year": 1987, "opinion_index": 0 }, { "cite": "645 P.2d 1327", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10439358 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/p2d/645/1327-01" ] }, { "cite": "526 F. Supp. 969", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5629384 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/f-supp/526/0969-01" ] }, { "cite": "574 F. Supp. 256", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3614006 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/f-supp/574/0256-01" ] }, { "cite": "580 F. Supp. 1318", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1648789 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/f-supp/580/1318-01" ] }, { "cite": "596 F. Supp. 39", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3705118 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/f-supp/596/0039-01" ] }, { "cite": "742 F.2d 262", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 613271 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/f2d/742/0262-01" ] }, { "cite": "720 F.2d 1409", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1904052 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/f2d/720/1409-01" ] }, { "cite": "452 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1313768 ], "weight": 6, "year": 1981, "opinion_index": 0, "case_paths": [ "/us/452/0018-01" ] }, { "cite": "768 F.2d 1181", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 356355 ], "weight": 3, "pin_cites": [ { "page": "1183" } ], "opinion_index": 0, "case_paths": [ "/f2d/768/1181-01" ] }, { "cite": "19 Loy. U. Chi. L.J. 827", "category": "journals:journal", "reporter": "Loy. U. Chi. L.J.", "year": 1988, "opinion_index": 0 }, { "cite": "514 N.E.2d 1033", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "162 Ill. App. 3d 149", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3508631 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/0149-01" ] }, { "cite": "490 N.E.2d 1271", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. 2d 539", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3167414 ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0539-01" ] }, { "cite": "531 N.E.2d 790", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "125 Ill. 2d 306", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5555183 ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0306-01" ] }, { "cite": "531 N.E.2d 123", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "176 Ill. App. 3d 429", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3588272 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/176/0429-01" ] }, { "cite": "462 N.E.2d 1276", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 549", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5678455 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0549-01" ] }, { "cite": "532 N.E.2d 1110", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "178 Ill. App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2432901 ], "pin_cites": [ { "page": "100-01" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0097-01" ] }, { "cite": "416 U.S. 600", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 84376 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/us/416/0600-01" ] }, { "cite": "525 N.E.2d 1102", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "171 Ill. App. 3d 977", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3616881 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/0977-01" ] } ], "analysis": { "cardinality": 1045, "char_count": 31790, "ocr_confidence": 0.766, "pagerank": { "raw": 1.703621850077537e-07, "percentile": 0.7012949403613878 }, "sha256": "840d59ba16bd6b91aeb84b37fcc875bf093596fce80da06dbc90409289bf19e1", "simhash": "1:83aa75246fc69a71", "word_count": 5168 }, "last_updated": "2023-07-14T17:15:46.579667+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NORELL SANDERS, Petitioner-Appellee, v. O.D. SHEPHARD, a/k/a Odell Shephard, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE McMORROW\ndelivered the opinion of the court:\nO.D. Shephard (Shephard) appeals from three successive contempt orders entered November 19, 1987 (docket number 87 \u2014 3631), May 17, 1988 (docket numbers 88 \u2014 2070 and 88 \u2014 2100), and November 18, 1988 (docket number 88 \u2014 3714). Each of these contempt orders directed Shephard\u2019s imprisonment for six months or until he returns his biological daughter, Deborah Sanders (Deborah), to the custody of the child\u2019s natural mother, Norell Sanders (Sanders). The contempt orders resulted from Shephard\u2019s failure to comply with the trial court\u2019s October 16, 1987, plenary protection order that Shephard return the child to her mother. The trial court entered this plenary protection order, following a hearing, pursuant to a petition filed by Sanders under the Illinois Domestic Violence Act of 1986 (Ill. Rev. Stat. 1987, ch. 40, par. 2311 \u2014 1 et seq.). Sanders filed her petition for protection a few days before Shephard was released on parole from his criminal conviction for having abducted the child. (See Ill. Rev. Stat. 1983, ch. 38, par. 10 \u2014 5(b)(3) (child abduction); People v. Shephard (1988), 171 Ill. App. 3d 977, 525 N.E.2d 1102 (affirmance of conviction).) For the reasons stated below, we affirm.\nSanders filed a civil petition seeking both emergency and plenary protection orders under the Illinois Domestic Violence Act on October 2, 1987. In support of her petition, Sanders stated in an affidavit that Shephard had telephoned her from prison and repeated prior threats to kill Sanders or do bodily harm to both Sanders and Deborah upon Shephard\u2019s release from prison. Sanders further stated in her affidavit that she believed Shephard would make arrangements to further conceal Deborah and destroy evidence of her whereabouts if Sanders were required to notify Shephard prior to attempting to obtain the emergency protection order.\nOn the basis of this petition and supporting affidavit, the trial court issued an emergency ex parte order of protection. The order directed Shephard not to strike, threaten, harass, or interfere with the personal liberty of Sanders or her family. It also ordered Shephard to initiate no contact whatsoever with Sanders. The trial court\u2019s order directed Shephard to appear in court on October 9, 1987, with the minor child, Deborah. It further noted, in bold, large print, \u201cWillful violation of any provisions of this order constitutes contempt of court and may further result in fine or imprisonment.\u201d The emergency order was set to expire by its own terms in two weeks. Copies of the summons and order were mailed to Shephard in prison by both direct and certified mail the same day the emergency order was entered.\nThe day following the court\u2019s entry of the emergency order, a court-appointed special process server attempted to serve Shephard with summons and a certified copy of the emergency order. Shephard refused to take these documents from the special process server, and the process server orally informed Shephard of the full contents of the summons and the emergency order, including the court\u2019s order that he appear in court on October 9 with Deborah.\nOn October 9, 1987, Shephard appeared in court without an attorney. He did not bring Deborah to court on that day or explain her absence from court. The transcript reflects that on that day Sanders presented to the court a verified petition for rule to show cause why Shephard should not be held in contempt of court for failure to produce the child, although Sanders\u2019 verified petition does not appear in the record upon review. Based upon Sanders\u2019 petition for a rule to show cause, the court held a contempt hearing instanter. Sanders testified that Shephard took Deborah from her in September 1984 and that Sanders had not seen the child since that time. An Illinois State Police officer testified that investigation revealed the child had not been seen since October 1984, and that Shephard was the last person seen with the child at that time.\nShephard requested that counsel be appointed to represent him at the contempt hearing. The court declined to do so, explaining to Shephard that the matter was a civil proceeding and that he was entitled to appointed counsel only in criminal proceedings. The court suggested that Shephard could later obtain counsel if he should choose to do so and that any contempt order entered that day would then be vacated. Under examination by the court, Shephard testified that he returned Deborah to Sanders in December 1984. Shephard also attempted to cross-examine Sanders, but his questions pertained to matters irrelevant to the proceedings. Sanders testified that Shephard had not returned the child to her.\nFollowing this testimony, the trial court held Shephard in contempt of court for violating the October 9, 1987, order to produce Deborah. The court ordered Shephard imprisoned in Cook County jail for six months or until Shephard \u201cpurge[d] himself of contempt by producing the minor child Deborah Sanders.\u201d The court\u2019s order recited that it had been entered pursuant to hearing on Sanders\u2019 \u201cverified petition for rule to show cause\u201d and that Shephard \u201cappeared pro se.\u201d While Shephard was present in court, he was informed that a hearing date of October 16, 1987, was set on Sanders\u2019 petition for a plenary order of protection. Shephard was also handed a copy of Sanders\u2019 petition for the protection orders and a copy of the court\u2019s emergency, ex parte order of protection. A notice of hearing was sent to Shephard at Cook County jail by certified mail on October 14, 1987.\nThe record bears no indication that Shephard requested to be brought to court or that the court ordered Shephard returned from jail for the scheduled October 16, 1987, hearing on Sanders\u2019 request for a plenary order of protection, and no attorney filed an appearance on Shephard\u2019s behalf prior thereto. The plenary protection hearing was held in Shephard\u2019s absence. The court inquired of Sanders\u2019 counsel whether Shephard had committed any additional acts in violation of the court\u2019s emergency protection order. In response, counsel informed the court, and Sanders confirmed, that Sanders had received a telephone call from an unnamed woman. This caller informed Sanders that if she wanted to see Deborah alive, Sanders should tell the trial court at the plenary hearing that she \u201chad been lying about everything.\u201d The court determined that it would not \u201csanction\u201d Shephard at that time for this alleged violation of the court\u2019s emergency protection order. On October 16, 1987, the court entered a plenary protection order which inter alia directed Shephard to immediately return the minor child to Sanders. The plenary order was set to expire by its own terms in two years. A certified copy of the plenary protection order was personally served upon Shephard at Cook County jail by a deputy sheriff on October 23,1987.\nA few weeks later, on November 2, 1987, counsel filed an appearance on behalf of Shephard and presented to the trial court a petition to vacate the October 16, 1987, contempt order and release Shephard from jail. Shephard\u2019s counsel also filed a motion to declare unconstitutional certain provisions of the Illinois Domestic Violence Act. On the same day, Sanders filed a verified petition for another rule to show cause, and a copy thereof was given to Shephard\u2019s attorney. The court issued the rule and set November 19, 1987, for hearing on the rule and on Shephard's pleadings.\nAt the hearing on the parties\u2019 motions, held on November 19, 1987, the court first considered Sanders\u2019 petition for a rule to show cause. At this time, Sanders again presented her testimony and the testimony of family members and investigating police officers to the effect that Shephard had taken Deborah from Sanders in September 1984, was the last person seen with the child in October 1984, and had not returned the child to Sanders at any date following September 1984. Shephard, represented by counsel, testified on his own behalf that he had returned the child to Sanders in December 1984.\nThe trial court determined that Shephard \u201cknows where the child is and was and is the last person to be seen with her.\u201d The court found that Shephard\u2019s \u201cproffered explanation that he returned the child to [Sanders] in December, 1984, is not credible and is therefore unworthy of belief.\u201d The court found Shephard guilty of contempt for failure to comply with the October 16, 1987, protective order to produce the child and ordered Shephard incarcerated in Cook County jail for six months \u201cor until such time as [he] purges himself of contempt by returning Deborah Sanders\u201d to her mother. The trial court also vacated its October 9 contempt order, but denied Shephard\u2019s motion to declare unconstitutional certain provisions of the Illinois Domestic Violence Act. Shephard\u2019s appeal followed (docket number 87 \u2014 3631).\nIn May 1988, and again in November 1988, the trial court found Shephard guilty of contempt and ordered Shephard\u2019s continued imprisonment for additional periods of six months from the dates of the orders or until such time as he purges himself of contempt by returning Deborah to her mother. Shephard was notified of each of these proceedings, provided an opportunity to respond, and was given hearings wherein he was represented by counsel. Shephard also appeals from these contempt orders entered in May 1988 (docket numbers 88 \u2014 2070, 88 \u2014 2100), and November 1988 (docket number 88 \u2014 3714).\nThe following chronology of the proceedings in the trial court is presented to facilitate reference for the purpose of review:\nOctober 2, 1987:\nEx parte emergency protective order entered directing Shephard to appear in court on October 9, 1987, with the child;\nOctober 9, 1987:\nShephard held in contempt of court for his failure to comply with October 2, 1987, order; Shephard ordered imprisoned for six months or until such time as he purged the contempt by returning the child to Sanders;\nOctober 16, 1987:\nPlenary order of protection, valid for two years, entered directing Shephard to return the child to Sanders;\nNovember 2, 1987:\nAttorney filed appearance for Shephard; Shephard filed petition to vacate October 9, 1987, contempt finding and petition to declare certain provisions of Illinois Domestic Violence Act unconstitutional; Sanders filed new petition for rule to show cause for Shephard\u2019s failure to comply with October 16,1987, order;\nNovember 19 and 20, 1987:\nOctober 9, 1987, contempt order vacated; on petition for rule filed on November 2, 1987, Shephard found in contempt for failure to comply with October 16, 1987, order; Shephard ordered imprisoned for six months, or until such time as he purged the contempt by returning the child to Sanders; Shephard\u2019s motions to declare unconstitutional certain provisions of Illinois Domestic Violence Act and to be released from jail were denied; Shephard appealed from these orders;\nMay 17, 1988:\nShephard held in contempt for failure to comply with October 16, 1987, order; Shephard ordered imprisoned for six months, or until he purged the contempt by returning the child to Sanders; Shephard appealed from this order;\nNovember 18, 1988:\nShephard held in contempt for failure to comply with October 16, 1987, order; Shephard ordered imprisoned for six months, or until he purged the contempt by returning the child to Sanders; Shephard appealed from this order.\nInitially we note that although Shephard appeals from the trial court\u2019s contempt orders of November 1987, May 1988, and November 1988, Shephard has not filed a notice of appeal from the trial court\u2019s emergency and plenary orders of protection. Nevertheless, Shephard\u2019s appellate brief challenges the procedural due process sufficiency of the court\u2019s emergency and plenary protection orders. Because the court\u2019s contempt orders, from which Shephard does appeal, were based upon Shephard\u2019s failure to comply with the terms of the court\u2019s protection orders, we find it appropriate to recognize Shepard\u2019s arguments regarding the procedural due process sufficiency of the court\u2019s emergency and plenary protective orders.\nShephard argues that the trial court\u2019s emergency order of protection entered on October 2, 1987, did not satisfy procedural due process, because he was not given prior notice of Sanders\u2019 petition for the emergency protective order. We disagree. There is no procedural due process defect in obtaining an emergency order of protection without notice to a respondent, when the petition for the emergency protection order is supported by affidavits that demonstrate exigent circumstances justifying entry of an emergency order without prior notice. (See, e.g., Mitchell v. W.T. Grant Co. (1974), 416 U.S. 600, 40 L. Ed. 2d 406, 94 S. Ct. 1895.) The Illinois Domestic Violence Act states that the trial court shall issue an emergency order of protection \u201cregardless of prior service of process or of notice upon the respondent, because *** the harm which [the remedy requested by the petitioner] is intended to prevent would be likely to occur if the respondent were given any prior notice.\u201d Ill. Rev. Stat. 1987, ch. 40, par. 2312 \u2014 17(a)(3)(i).\nIn the case at bar, Sanders requested the remedy, provided for under the Illinois Domestic Violence Act, that the respondent be \u201c[o]rder[ed] *** to appear in court, *** with a minor child, to prevent *** concealment of the child.\u201d (Ill. Rev. Stat. 1987, ch. 40, par. 2312 \u2014 14(7).) Sanders\u2019 affidavit in support of the emergency order of protection recited that she feared prior notice to Shephard of the petition for the emergency protection order would cause him to further conceal the child. In light of this allegation of harm if Shephard were given prior notice, the procedures utilized in this case to obtain the court\u2019s emergency order of protection did not violate procedural due process.\nShephard also contends that the court\u2019s plenary order of protection was obtained in violation of his procedural due process rights. In our view, Shephard has waived this claim for purposes of review. If Shephard had alerted the court at its November 19, 1987, hearing that Shephard believed he was entitled to a new hearing with respect to the court\u2019s plenary protection order, the trial court could have granted Shephard\u2019s request and held both a new plenary protection hearing and thereafter a new contempt hearing on November 19. However, Shephard did not argue to the trial court that he believed he was entitled to a new hearing on the petition for plenary protective order because of procedural due process violations. Under the facts of this case, Shephard\u2019s argument amounts to an \u201cafter-the-fact complaint about an avoidable situation\u201d that Shephard could have prevented had he presented this argument to the trial court in a timely fashion. (Crossman v. Curless (1988), 178 Ill. App. 3d 97, 100-01, 532 N.E.2d 1110.) We are also of the opinion that the evidence presented at the trial court\u2019s November 19, 1987, hearing on Sanders\u2019 contempt petition would have been essentially the same evidence which would have been presented at the hearing on the petition for plenary protection and that the evidence presented at the contempt hearing would have been sufficient to support the entry of a plenary protection order. See Ill. Rev. Stat. 1987, ch. 40, par. 2312 \u2014 14(7); see generally In re Marriage of Hagaman (1984), 123 Ill. App. 3d 549, 462 N.E.2d 1276.\nShephard also argues that provisions of the Illinois Domestic Violence Act regarding emergency protection orders (Ill. Rev. Stat. 1987, ch. 40, par. 2312 \u2014 17(a)(3)), plenary protection orders (Ill. Rev. Stat. 1987, ch. 40, par. 2312 \u2014 19), and body attachment (Ill. Rev. Stat. 1987, ch. 40, par. 2312 \u2014 23(b)(1)) are unconstitutional on their face for lack of adequate procedural due process guarantees. We disagree. As noted above, procedural due process with respect to the issuance of an emergency protection order does not require prior notice to a respondent where there is a showing of exigent circumstances. (See, e.g., Mitchell v. W.T. Grant Co. (1974), 416 U.S. 600, 40 L. Ed. 2d 406, 94 S. Ct. 1895.) Contrary to Shephard\u2019s contention, the Illinois Domestic Violence Act does require prior notice of a hearing with respect to a petition for plenary order of protection. (Ill. Rev. Stat. 1987, ch. 40, par. 2312 \u2014 19; see also In re Marriage of Lenhardt (1989), 176 Ill. App. 3d 429, 531 N.E.2d 123.) Also, since no body attachment (see Ill. Rev. Stat. 1987, ch. 40, par. 2312 \u2014 23(b)(1)) was ordered in the case at bar, Shephard cannot properly contest the Act\u2019s procedural requirements with respect thereto. See, e.g., Kluk v. Lang (1988), 125 Ill. 2d 306, 531 N.E.2d 790.\nHaving considered Shephard\u2019s arguments regarding the court\u2019s emergency and plenary orders of protection, we turn to Shephard\u2019s claims regarding the trial court\u2019s contempt orders. Shephard asserts that the court\u2019s first contempt order, entered October 9, 1987, was in error because he was not accorded appointment of counsel. Although the trial court later vacated its October 9 contempt order, we elect to address Shephard\u2019s claim on its merits. We note that the court\u2019s contempt order was for indirect contempt, since the basis for Shephard\u2019s failure to comply with the court\u2019s order to produce the child in court required proof of matters outside the immediate knowledge of the court. (See People v. L.A.S. (1986), 111 Ill. 2d 539, 490 N.E.2d 1271 (attorney\u2019s failure to appear in court on specified date and time amounted to indirect contempt because reasons for failure to appear not in immediate direct knowledge of trial court judge).) Furthermore, the court\u2019s indirect contempt order was civil in nature rather than criminal, since the purpose of the court\u2019s order was to compel Shephard\u2019s production of the child rather than punish him for contumacious conduct. See People v. Rodriguez (1987), 162 Ill. App. 3d 149, 514 N.E.2d 1033 (court\u2019s order that respondent be imprisoned until production of child was order for civil contempt); see generally Burr, The Law of Contempt in Illinois, 19 Loy. U. Chi. L.J. 827 (1988).\nWe hold that Shephard was entitled to counsel at the court\u2019s hearing with respect to whether Shephard should be imprisoned for indirect civil contempt. In so holding, we find applicable to the case at bar the reasoning of the court in Walker v. McLain (10th Cir. 1985), 768 F.2d 1181, in which an individual was imprisoned in an indirect civil contempt action for nonpayment of child support:\n\u201c \u2018It is the defendant\u2019s interest in personal freedom, and not simply the special sixth and fourteenth amendment right to counsel in criminal cases, which triggers the right to appointed counsel.\u2019 Lassiter v. Department of Social Services of Durham County, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 *** (1981). It would be absurd to distinguish criminal and civil incarceration; from the perspective of the person incarcerated, the jail is just as bleak no matter which label is used. In addition, the line between criminal and civil contempt is a fine one, and is rarely as clear as the state would have us believe. The right to counsel, as an aspect of due process, turns not on whether a proceeding may be characterized as \u2018criminal\u2019 or \u2018civil,\u2019 but on whether the proceeding may result in a deprivation of liberty. [Citation.]\u201d 768 F.2d at 1183.\nVirtually every reported decision which has considered the issue of whether a respondent is entitled to counsel in an indirect civil contempt proceeding has rejected the argument that a distinction should be drawn between civil and criminal contempt when the respondent faces the possibility of incarceration if held in contempt. The courts have based these decisions upon the United States Supreme Court\u2019s decision in Lassiter, in which the Court recognized a presumption that due process requires the representation by counsel to all persons who may lose their liberty regardless of the nomenclature used to describe the proceeding. In light of Lassiter, courts have uniformly concluded that, when imprisonment is a possible result of the indirect civil contempt proceeding for a respondent\u2019s failure to make court-ordered child support payments, due process requires that the respondent be provided the opportunity to obtain legal representation, and that the indigent respondent be appointed counsel to represent him at the contempt proceeding if he desires legal representation. (Ridgeway v. Baker (5th Cir. 1983), 720 F.2d 1409; Sevier v. Turner (6th Cir. 1984), 742 F.2d 262; Walker v. McLain (10th Cir. 1985), 768 F.2d 1181; Johnson v. Zurz (N.D. Ohio 1984), 596 F. Supp. 39; Lake v. Speziale (D. Conn. 1984), 580 F. Supp. 1318; Cobb v. Green (W.D. Mich. 1983), 574 F. Supp. 256; Mastin v. Fellerhoff (S.D. Ohio 1981), 526 F. Supp. 969; Padilla v. Padilla (Colo. App. 1982), 645 P.2d 1327; Dube v. Lopes (1984), 40 Conn. Sup. 111, 481 A.2d 1293; In re Marriage of Stariha (Ind. App. 1987), 509 N.E.2d 1117; Rutherford v. Rutherford (1983), 296 Md. 347, 464 A.2d 228; Cox v. Slama (Minn. 1984), 355 N.W.2d 401; Tetro v. Tetro (Wash. 1975), 544 P.2d 17; see generally Comment, Indigent Defendant\u2019s Right to Court-Appointed Counsel in Civil Contempt Proceedings for Nonpayment of Child Support, 50 U. Chi. L. Rev. 326 (1983).) This same reasoning based upon Lassiter has led courts to recognize the right to counsel in proceedings for indirect civil contempt when an individual may be imprisoned for his failure to testify before a grand jury under a grant of immunity. In re Di Bella (2d Cir. 1975), 518 F.2d 955; In re Kilgo (4th Cir. 1973), 484 F.2d 1215; United States v. Anderson (8th Cir. 1977), 553 F.2d 1154; In re Grand Jury Proceedings: United States v. Sun Rung Rang (9th Cir. 1972), 468 F.2d 1368.\nIn our view a respondent imprisoned for failure to produce a minor child is in similar circumstances to those individuals incarcerated for refusal to testify before grand juries, or for failure to make court-ordered child support payments. In each situation, the individual facing imprisonment for indirect civil contempt should be accorded counsel to represent him, including appointed counsel if the respondent is indigent. (Lassiter v. Department of Social Services (1981), 452 U.S. 18, 68 L. Ed. 2d 640, 101 S. Ct. 2153.) We therefore determine that Shephard was entitled to representation by an attorney at the court\u2019s October 9 contempt hearing. If he could not afford an attorney, the court was obligated to appoint one to represent him.\nWe also agree with Shephard\u2019s assertion that the court\u2019s October 9 contempt hearing was held without adequate notice to him, in violation of procedural due process. Although Shephard was notified that the court\u2019s emergency protection order directed his appearance in court with the child, nothing advised Shephard that his failure to do so would result in an order finding him in contempt and ordering his incarceration. Sanders did not notify Shephard of her intention to seek a rule to show cause contempt finding at the court\u2019s October 9 hearing. Absent prior notice of the contempt consequences of his failure to appear in court with the child on the date specified, the court should not have found Shephard in contempt of court at its October 9 hearing. See People ex rel. Williams v. Williams (1987), 156 Ill. App. 3d 438, 509 N.E.2d 460.\nWith regard to the court\u2019s contempt orders of November 1987, May 1988, and November 1988, Shephard asserts that, because he has been previously convicted and sentenced for having abducted the child, his subsequent incarcerations for indirect civil contempt violate double jeopardy. We disagree. In order to convict Shephard of child abduction, the State was required to prove that Shephard removed Deborah without Sanders\u2019 consent and that Shephard was Deborah\u2019s putative father. (See Ill. Rev. Stat. 1983, ch. 38, par. 10\u2014 5(b)(3).) In order to determine that Shephard had committed acts of indirect civil contempt, it was necessary for the trial court to determine that Shephard had wilfully violated a valid court order that Shephard produce the minor child in court. (See, e.g., Central Production Credit Association v. Kruse (1987), 156 Ill. App. 3d 526, 509 N.E.2d 136.) Because the elements of the crime of Shephard\u2019s child abduction conviction and the elements in the indirect civil contempt judgment were not identical, Shephard\u2019s imprisonment for indirect civil contempt did not violate double jeopardy. See People v. Totten (1987), 118 Ill. 2d 124, 514 N.E.2d 959; People v. Doherty (1988), 165 Ill. App. 3d 630, 518 N.E.2d 1303; People v. Rodriguez (1987), 162 Ill. App. 3d 149, 514 N.E.2d 1033; see generally Brady, The Illinois Domestic Violence Act of 1986: A Selective Critique, 19 Loy. U. Chi. L.J. 797 (1988).\nShephard further complains that the trial court\u2019s successive contempt orders in themselves violate double jeopardy. In this regard Shephard claims that double jeopardy is violated by the court\u2019s subsequent contempt orders, entered in May and November 1988, when these contempt orders are premised on the same factual basis for the court\u2019s first contempt order entered in November 1987. As a general rule, however, double jeopardy attaches for subsequent or multiple criminal prosecutions, not for subsequent or multiple civil proceedings. (See, e.g., People v. Doherty (1988), 165 Ill. App. 3d 630, 638, 518 N.E.2d 1303.) As stated more fully below, the trial court\u2019s contempt orders in the case at bar are in the nature of civil contempt rather than criminal contempt, since the trial court\u2019s contempt orders contain provisions permitting Shephard to purge himself of the contempt by his return of the child to Sanders and are designed to protect Sanders\u2019 custody interest in her daughter. (See Doherty, 165 Ill. App. 3d at 634-37.) Because the court\u2019s orders pertain to civil contempt, double jeopardy does not bar the court\u2019s successive contempt orders upon the expiration of each six-month period. Doherty, 165 Ill. App. 3d 630, 518 N.E.2d 1303.\nShephard also contends that the trial court\u2019s \u201ccontinuous and consecutive contempt orders made without any factual basis to believe that [Shephard] can comply with the order, [have] become punitive in nature.\u201d According to Shephard, \u201cIt is the repeated actual and potential (apparently without any limit) number of contempt prosecutions in this case that trigger [sic] the protections of the double jeopardy clause.\u201d We disagree.\nBased upon our review of the record, we conclude that the trial court\u2019s successive contempt orders in the case at bar do not amount to findings of criminal contempt against Shephard such that principles of double jeopardy would apply. Each of the trial court\u2019s contempt orders grants Shephard the explicit, unconditional right to purge himself of contempt by returning the child to Sanders. The trial court\u2019s oral pronouncements demonstrate that the court\u2019s objective is to benefit Sanders, by recognizing and protecting her right to physical custody of her minor child, and to prompt Shephard\u2019s compliance with the court\u2019s plenary order of protection. We do not believe, under the facts of this case, that the court\u2019s successive contempt orders, now amounting to Shephard\u2019s imprisonment for approximately 19 months, are so onerous in their aggregate that the contempt orders should be characterized as criminal, rather than civil, contempt. See Shillitani v. United States (1966), 384 U.S. 364, 16 L. Ed. 2d 622, 86 S. Ct. 1531 (defendants\u2019 two-year imprisonment for refusal to answer grand jury questions found to be in the nature of civil contempt); see also United States v. Halper (1989), 490 U.S. _, _, 104 L. Ed. 2d 487, 502, 109 S. Ct. 1892, 1902 (\u201cunder the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution\u201d); Hicks v. Feiock (1988), 485 U.S. 624, 631, 99 L. Ed. 2d 721, 731, 108 S. Ct. 1423, 1429 (\u201cthe critical features\u201d that distinguish civil and criminal contempt \u201care the substance of the proceeding and the character of the relief that the proceeding will afford\u201d).\nShephard also asserts that he is entitled to credit for the time he \u201cserved\u201d pursuant to the court\u2019s October 9 contempt order which the court later vacated. Although Shephard contends that this result would be equitable, he has provided to this court no specific legal basis for his argument in this regard. Consequently, we are unable to properly review the validity of Shephard\u2019s claim on this point, and the question is waived on review. See, e.g., In re Marriage of Talmadge (1989), 179 Ill. App. 3d 806, 534 N.E.2d 1356.\nShephard argues that all of the court\u2019s contempt orders must be reversed because they are against the manifest weight of the evidence. However, Shephard had the burden of proving that he was unable, through no fault of his own, to comply with the court's order that he produce the child. (See In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167; Central Production Credit Association v. Kruse (1987), 156 Ill. App. 3d 526, 509 N.E.2d 136.) We also note that placement of this burden upon Shephard does not violate due process, because the court\u2019s orders were in the nature of civil rather than criminal contempt. Hicks v. Feiock (1988), 485 U.S. 624, 99 L. Ed. 2d 721,108 S. Ct. 1423.\nThe trial court determined that Shephard had provided no valid basis for his failure to comply with the court\u2019s order that he return the minor child to Sanders. Based upon our review of the record, we cannot say that the trial court\u2019s factual findings were against the manifest weight of the evidence. Sanders testified that Shephard took the child from her in September 1984, and denied Shephard\u2019s assertion that he returned the child to her in December 1984. The trial court credited Sanders\u2019 testimony that Shephard had not returned the child to her. Police investigation revealed that Shephard was the last person seen with the child and that this sighting occurred in October 1984. Accordingly, the evidence presented to the trial court permits the inference that Shephard knows of the child\u2019s whereabouts, is able to obtain her presence in court; and has wilfully failed and refused to do so in violation of the court\u2019s order that Shephard produce the child.\nShephard also argues that the trial court\u2019s contempt orders were improperly influenced by certain testimony from Sanders at the court\u2019s plenary protection hearing. Sanders informed the court at this hearing that an unnamed woman had telephoned Sanders, after the emergency protection order was entered, and told Sanders that if she wanted to see Deborah alive, she should tell the trial court at the court\u2019s plenary protection hearing that she \u201chad been lying about everything.\u201d However, the court\u2019s oral pronouncements at the court\u2019s later contempt hearings indicate that the court gave little or no weight or significance to this incident. As a result, we cannot conclude that the trial court\u2019s contempt rulings were improperly influenced by Sanders\u2019 testimony regarding the telephone call.\nFor the reasons stated, the orders of the circuit court of Cook County are affirmed.\nAffirmed.\nJIGANTI, P.J., and LINN, J., concur.", "type": "majority", "author": "JUSTICE McMORROW" } ], "attorneys": [ "Steven E. Glink, of Chicago, for appellant.", "Joan S. Colen and Cathleen Cohen, both of Legal Assistance Foundation, of Chicago, for appellee." ], "corrections": "", "head_matter": "NORELL SANDERS, Petitioner-Appellee, v. O.D. SHEPHARD, a/k/a Odell Shephard, Respondent-Appellant.\nFirst District (4th Division)\nNos. 1-87-3631, 1-88-2070, 1-88-2100, 1-88-3714 cons.\nOpinion filed June 22, 1989.\nSteven E. Glink, of Chicago, for appellant.\nJoan S. Colen and Cathleen Cohen, both of Legal Assistance Foundation, of Chicago, for appellee." }, "file_name": "0719-01", "first_page_order": 745, "last_page_order": 760 }