In re Marriage of Palarz (Appellate Court Lacks Jurisdiction To Review Extensions Of Emergency Order Of Protection)

Thomas Palarz and Jolanta Palarz were married on September 25, 2012, and had one child, born January 17, 2013.

On January 7, 2019, Jolanta filed an emergency petition for order of protection naming the minor child as a protected party against Thomas. The trial court entered the emergency order of protection and continued the matter for three weeks, until January 28, 2019.

On January 8, 2019, Thomas, representing himself pro se, filed a petition for dissolution of marriage against Jolanta, a petition for order of protection against Jolanta, and a motion for parentage and physical custody of the minor child. Three days later, on January 11, 2019, Thomas also filed a motion to vacate Jolanta’s emergency order of protection entered January 7, 2019.

On January 16, 2019, on Thomas’ motion, the trial court consolidated the pending matters between the parties, and scheduled a hearing on the January 7, 2019 emergency order of protection for January 23, 2019. At this time both parties obtained counsel.

On January 23, 2019, the court granted Jolanta’s motion to amend her petition for order of protection, and continued the matter until March 1, 2019. Jolanta then filed an amended petition for order of protection on February 13, 2019. In this amended pleading, Jolanta alleged that Thomas suffered from mental illness and refused treatment, abused alcohol, made false allegations against Jolanta to the police and child services, and that Jolanta discovered that Thomas received a bipolar diagnosis after attending counseling.

On March 1, 2019, the trial court appointed a guardian ad litem in the matter, and entered an agreed disposition order continuing the emergency order of protection to April 25, 2019 and setting the emergency order of protection for hearing on the same date.

On April 25, 2019, the guardian ad litem filed a report, and recommended that Thomas obtain an alcohol and drug treatment evaluation, and that Thomas’ parenting time be supervised. The trial court extended the emergency order of protection again, until July 8, 2019, and set it for hearing.

Subsequent to the April 25, 2019 court date, the trial court extended the emergency order of protection on numerous additional occasions. During a December 11, 2019 court date, the trial court ordered reunification therapy for Thomas and the minor child. The matter was then continued several more times due to the Covid 19 pandemic. On September 18, 2020 the court continued the matter to January 25, 2021, and set trial dates of January 25 and 25, 2021.

On October 15, 2020, Thomas’ counsel withdrew.

On December 2, 2020, Jolanta filed a counter-petition for dissolution of marriage and an emergency motion to suspend Thomas’ parenting time. On December 3, 2020, the court entered an order suspending Thomas’ parenting time, and ordered a reunification report from the therapist regarding whether Thomas poses a serious endangerment to the minor child.

On December 18, 2020, Jolanta filed a motion for default due to Thomas not obtaining new counsel, or filing a pro se appearance.

On the date of trial, January 25, 2021, Thomas remained unrepresented. The parties submitted a previously negotiated Marital Settlement Agreement, and the trial court held an evidentiary hearing on the issue of an Allocation Judgment.

After hearing testimony from both parties, the trial court entered an order for supervised parenting time for Thomas, and stating that Thomas may file a motion to modify once Thomas made efforts to attend and complete reunification therapy, and attend counseling, and after Thomas receives a report from his treating psychologist indicating that he no longer poses a serious endangerment to the minor child.

Thomas raised several issues on appeal.

Thomas challenged the series of orders that extended the emergency order of protection against him for over two years, and claimed that such extension prejudiced Thomas at the hearing. The Appellate Court found that this issue was moot because the emergency order of protection was no longer in effect, and even if the court would to revisit and reverse all of the orders extending the order of protection, the court would be incapable of providing any relief to Thomas.

Thomas also argued that each of the orders continuing the order of protection were “steps in the procedural progression of the final order” that Thomas appealed. The Appellate Court also disagreed with this argument stating that the Allocation Judgment was not entered as a result of the previous order of protection that was extended, but rather a result of an evidentiary hearing that Thomas was permitted to testify at. The temporary extensions of the order of protection did not affect the final allocation judgment.

Finally, Thomas challenged the entry of the Allocation Judgment restricting his parenting time claiming it was erroneous because the trial court held him in default, refused to admit evidence from Thomas’ treating psychologist, and relied exclusively on evidence that was two years old. Thomas also argued that there was no evidence that he ever abused, neglected, or consumed alcohol in front of the minor child.

The Appellate Court found that the record rebutted all of Thomas’ allegations.

First, the trial court did not enter a default judgment, but rather allowed Thomas to testify, specifically noting that the trial court was interested in hearing Thomas’ testimony.

Second, the trial court did not refuse to hearing testimony from Thomas’ psychologist, but rather denied a request to delay the hearing because Thomas did not issue a subpoena for his psychologist to appear in court.

Third, the trial court did not rely simply on evidence that was two years old, but rather the endangerment finding was made based on evidence of Thomas’ alcohol abuse, including the fact that Thomas received a citation for driving under the influence merely two months prior to the hearing. The trial court also found that Thomas’ testimony regarding his current alcohol use to be not credible. The trial court also based its decision on its observation of Thomas in court. The Appellate Court found that the evidence presented of Thomas’ alcohol use, along with the evidence of Thomas’ mental health difficulties, erratic behavior, hostile treatment of Jolanta, and the guardian ad litem’s testimony was sufficient for the trial court to make a finding that Thomas presented a serious endangerment to the minor child.

The Appellate Court noted that the trial court’s order advised Thomas that if he completed reunification therapy and obtained a written report from his psychologist that he no longer posed a serious endangerment to the minor child, that Thomas could file a motion to modify the allocation judgment.

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