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People Ex Rel. Walsh v. Kilbride

JANUARY 30, 1974.




APPEAL from the Circuit Court of Kankakee County; the Hon. PATRICK M. BURNS, Judge, presiding.


This is an action under the "Paternity Act". The Circuit Court of Kankakee County, after trial without a jury, entered judgment for defendant, Duane R. Kilbride, finding that he was not the father.

In the complaint herein, filed Dec. 2, 1970, Mary Ann Walsh alleged that she was unmarried and the mother of a child, Nicole Kilbride, born out of wedlock on Jan. 7, 1970, and that the defendant is the father of the child. Defendant entered his appearance pleading not guilty. Trial was begun Dec. 20, 1971, at which time complainant presented her case in chief. She testified that Nicole was conceived April 1 or 2, 1969, at which time she had sexual intercourse with defendant, that she had previously coupled with defendant four or five other times. That Nicole was born two weeks late and that during the time she went with defendant she never had intercourse with any other man. That defendant did not deny that he was the father and further, that he gave her a signed and acknowledged certificate of paternity wherein he certified that he was the father and consented that his name be entered on Birth Certificate Records as the father. This certificate was admitted into evidence as plaintiff's exhibit 2. A witness testified that she saw the parties together the late evening of April 1 and early morning of April 2, 1969.

At close of plaintiff's evidence a motion for dismissal was made which motion was taken under advisement and the cause continued until Jan. 17, 1972, at which time the motion was denied and the defendant then testified. He said he did have sexual intercourse with Mary Ann four or five times and that it could have been as late as April 1 or 2, 1969. He did not recall the specific incident (nor did he specifically deny it). At the close of defendant's testimony both sides rested and the cause was taken under advisement to Jan. 31, 1972.

On Feb. 8, 1972, in the absence of plaintiff and her counsel the court allowed defendant's motion to take the case under further advisement on the ground that he had discovered new evidence, wished to investigate and would need time to file a motion to re-open the case. The case was then continued until Feb. 29, 1972.

On Feb. 29 defendants' lawyer presented a motion to re-open the case accompanied by his (the lawyer's) affidavit which said that additional evidence was in the process of being produced. The court allowed the motion and set the hearing for April 17, 1972.

On April 17, 1972, the defendant presented an affidavit and advised the court that he had no further evidence.

The affidavit, which was ordered filed, in effect stated:

That affiant talked to two persons both of whom advised affiant that they kept company with Mary Ann during the period. That neither would testify.

That affiant further states that there are other persons known to him who kept company with Mary Ann during the period but they have refused to permit their names to be made known and that they would not testify.

The court then, on April 20, entered an order which among other things stated, "* * * and especially having observed the demeanor of the complaining witness on the witness stand and the manner in which she conducted herself while testifying, Court feels that it cannot give sufficient credibility to the testimony of the Plaintiff to find that she has proved her case by a preponderance of the evidence."

Appellant first contends that the decision in Stanley v. Illinois, 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208, would require that provision must be made for legal representation of the child Nicole Kilbride in the proceedings.

• 1 Stanley held that State laws which deny a hearing to determine the fitness of a father for the custody of his children born out of wedlock while extending this right to other parents are based upon an unreasonable distinction and violate equal protection principles. (People ex rel. Slawek v. Covenant Children's Home, 52 Ill.2d 20.) It has no application to the instant case.

Appellant next contends that the execution of the written sworn acknowledgment of paternity by defendant is binding upon him and brings to question the finding of the trial court ...

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