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Dephillips v. Dephillips

SEPTEMBER 15, 1965.




Appeal from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding. Reversed and remanded.


Rehearing denied October 11, 1965.

On August 21, 1963, Ralph Paul DePhillips, hereafter referred to as plaintiff, filed a complaint seeking equitable relief. In the complaint he alleged, among other things, that on or about June 1951, he and defendant, Joan Harvey, commenced living and cohabiting together, and that they continued living and cohabiting together as if husband and wife (the defendant then being known as Joan DePhillips) for a period of, to wit, nine years, or until, to wit, the month of September 1960, and that to this union a child, Donna Jean DePhillips, was born. He also alleged that at the time he was living with Joan Harvey she had not been divorced from a former husband; that in September 1960, Joan left the plaintiff and on October 25, 1960, she entered into a pretended marriage ceremony with defendant, John H. Harvey. She had taken the child and had left her with the plaintiff's sister, but afterwards she resumed custody of the child.

The complaint further alleged that on November 8, 1962, the defendants, Joan Harvey and John H. Harvey, filed a proceeding in the County Court of Cook County, praying for the adoption of the child, and on December 13, 1962, a purported decree of adoption was entered; that the purported decree is void on the ground that it was founded upon false representations to the court that the petitioners were husband and wife. In his complaint the plaintiff offered to support the child, whether she be in his custody or in the custody of any other person. He also alleged that the defendant, Joan Harvey, is not a fit and proper person to have the care and custody of the child. The plaintiff then prayed that the court adjudicate the marital status of defendant, Joan Harvey (also known as Joan Bovenzo); that the purported decree of adoption be held void; and that the court grant custody of the child to the plaintiff, or in the alternative, grant rights of visitation to him. He further prayed that the court enter an order that the plaintiff contribute to the support of the child and that the defendant expend such monies for the benefit of the child.

Defendants filed a motion to dismiss the complaint on October 29, 1963, on the ground that the complaint does not state a cause of action but merely states a number of facts that are immaterial which gave the court no jurisdiction. The motion also alleged that the relief prayed for by the plaintiff involves matters in which he has no interest and is not a proper party. *fn1 The court overruled the motion to dismiss and an answer by the defendants was thereupon filed.

The court appointed a guardian ad litem for the child and a report was given to the court from an investigator secured by the guardian. The guardian filed a report and a petition asking that the court determine a reasonable compensation to be paid to him and direct the payment of said fees. On October 26, 1964, the court entered an order fixing the fees of the guardian ad litem at the sum of $1,000, and further ordered that they were to be taxed as costs $500 to be paid by plaintiff and $500 to be paid by defendants. After hearing, the court entered a decree on October 30, finding that Donna Jean DePhillips was the child of the plaintiff; that the child was then aged twelve and a half years; that the plaintiff should have the right of visitation, and that the plaintiff contribute to the support of the child. The court further ordered that Donna remain in the custody of the defendant, Joan Harvey, until further order of the court, and that the questions of contempt of the court be reserved for further consideration.

The defendants filed a notice of appeal on November 19, 1964, in which they appealed;

1) from an alleged finding purportedly entered October 20, 1964, holding the Harveys in contempt; *fn2

2) from an order entered October 20, 1964, fixing and apportioning the fees of the guardian ad litem; and

3) from the decree of the court entered October 30, 1964, which provided for visitation rights by the plaintiff and requiring him to make payments for the child's support.

On March 3, 1965, the plaintiff moved to dismiss the appeal. At that time this court directed that there be an oral argument on that motion.

When the plaintiff and Joan Harvey allegedly were living together and when the child was conceived there was in full force and effect a statute (Ill Rev Stats 1955, c 38, sec 46) known as the Criminal Code, which provided as follows:

"If any man and woman shall live together in an open state of adultery, or fornication, or adultery and fornication, every such person shall be fined not exceeding $500, or confined in the county jail not exceeding one year. For a second offense, such man or woman shall be severally punished twice as much as the former punishment, and for a third offense, treble, and thus increasing the punishment for each succeeding offense: . . ."

This section remained in effect until it was repealed in 1961, but it was in substance enacted as sections 11-7 and 11-8 of chapter 38 of the present Criminal Code ...

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