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Cessna v. Montgomery

OPINION FILED MARCH 18, 1976.

THELMA L. CESSNA, APPELLEE,

v.

RAYMOND MONTGOMERY, APPELLANT. — DONNA MALONE, APPELLANT,

v.

MCCARTHY DUNLAP, APPELLEE.



No. 47738. — Appeal from the Circuit Court of Lawrence County; the Hon. Philip Benefiel, Judge, presiding.

No. 48002. — Appeal from the Circuit Court of Cook County; the Hon. Irwin Cohen, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Mark Pettit, Jr., Robert H. Smith, and Gary H. Palm, of the Mandel Legal Aid Clinic, of Chicago, and Mark C. Zaander (law student), for appellant.

James J. Doherty, Public Defender, of Chicago (Ronald P. Alwin, Assistant Public Defender, Dale W. Broeder, and Jack L. Uretsky (law student), of counsel), for appellee.

This appeal arises from two independent actions by mothers seeking to establish the paternity of their illegitimate children. Both complaints were dismissed in the trial court because brought more than two years after the birth of the children (Ill. Rev. Stat. 1973, ch. 106 3/4, par. 54). Plaintiff in case No. 47738 appealed from the Lawrence County circuit court's order of dismissal, and the Appellate Court for the Fifth District reversed and remanded, holding the two-year limitation period unconstitutional (Cessna v. Montgomery (1975), 28 Ill. App.3d 887). We allowed defendant's petition for leave to appeal. Plaintiff in case No. 48002 also appealed from the dismissal of her suit by the Cook County circuit court. We allowed the defendant's motion to transfer the appeal to this court under Rule 302(b) (58 Ill.2d R. 302(b)), and the cases were consolidated for argument and opinion.

In case No. 47738, Thelma Cessna charged Raymond Montgomery with fathering her child. At a pretrial hearing to determine the existence of sufficient cause to proceed with the action, plaintiff testified that she and defendant had sexual relations regularly over a period of five years before the child was born on July 25, 1970. She continued to see defendant after the child's birth, and she and defendant lived together from July to October, 1972, when he left. Plaintiff filed her complaint the following March. Plaintiff further testified that defendant occasionally contributed to the support of her child, bought groceries, and paid utility bills for the household. Plaintiff and her 18-year-old daughter testified the child called defendant "Daddy Raymond," and that defendant encouraged her to do so because, he said, "she was his." At the close of the evidence, the court found the proceeding was barred by the statute of limitations, and granted defendant's motion for dismissal.

In case No. 48002, Donna Malone charged McCarthy Dunlap with fathering her child. She asserted that for three and one half years after her daughter's birth on March 4, 1970, defendant held himself out as the child's natural father. He admitted paternity in a signed and witnessed writing the day before the child was born, and is named as the father on the birth certificate. Defendant supported the child until September, 1973. Approximately six months after defendant discontinued support, plaintiff filed this action. She alleges in her complaint that the two-year limitation period violates due process and equal protection, and, in the alternative, that defendant should in any event be estopped from asserting the limitation period as a defense since his conduct in supporting the child induced her belief that a paternity action was unnecessary. The trial court disagreed, and dismissed the action.

We note preliminarily that while the issues and arguments are not identical in both cases, we elected to consolidate them and our analysis and holdings will apply to both.

Section 2 of the Paternity Act provides that, once paternity is established, a father must support his illegitimate children to the same extent as his legitimate children. (Ill. Rev. Stat. 1973, ch. 106 3/4, par. 52.) A paternity action may be instituted under section 4 of the Act (Ill. Rev. Stat. 1973, ch. 106 3/4, par. 54), which provides in pertinent part:

"A proceeding to establish the paternity of a child born out of wedlock and to establish and enforce liability for its support, maintenance, education and welfare shall be instituted in the circuit court. Such action may be instituted only on the filing of a complaint in writing (a) by the mother of a child born out of wedlock, or (b) by a woman who is pregnant with child, which, if born alive, may be born out of wedlock. The complainant, under oath or affirmation, shall accuse a person of being the father of such child. * * * No such action may be brought after the expiration of 2 years from the birth of the child. However, where the person accused has acknowledged the paternity of the child by a written statement made under oath or affirmation or has acknowledged the paternity of such child in open court, prosecution may be brought at any time within 2 years from the last time such acknowledgment was made or within 2 years from the last time the person accused contributed to the support, maintenance, education and welfare of the child subsequent to such acknowledgment. The time any person so accused is absent from the State shall not be computed."

Plaintiffs contend that section 4 denies equal protection to an illegitimate child because his right of support from his natural father is conditioned on establishing paternity within two years, absent formal acknowledgment, while the support right of a legitimate child is not conditioned at all. Plaintiffs also urge the related contention that section 4 denies both equal protection and due process to the illegitimate child because his support right may be terminated for conditions over which he has no control, particularly his mother's delay in bringing suit. Section 4 does not authorize a child to bring a paternity suit himself, by next friend or guardian; nor does it specifically authorize a State's Attorney to file suit on his own initiative.

Plaintiffs primarily rely on several Supreme Court decisions which have invalidated, on equal protection grounds, statutory distinctions between legitimate and illegitimate children. Among the cases are Levy v. Louisiana (1968), 391 U.S. 68, 20 L.Ed.2d 436, 88 S.Ct. 1509, and Glona v. American Guarantee & Liability Insurance Co. (1968), 391 U.S. 73, 20 L.Ed.2d 441, 88 S.Ct. 1515. The court in Levy voided an interpretation of a wrongful death statute which denied illegitimate children a cause of action for the death of their mother, and in Glona reversed an interpretation of the same statute which precluded a mother from recovering for the wrongful death of her illegitimate child. In Levy, the court expressed an extreme sensitivity regarding issues concerning basic civil rights. (391 U.S. 68, 71, 20 L.Ed.2d 436, 439, 88 S.Ct. 1509, 1511.) Four years later the court reaffirmed the Levy reasoning in Weber v. Aetna Casualty & Surety Co. (1972), 406 U.S. 164, 172, 31 L.Ed.2d 768, 777, 92 S.Ct. 1400, 1405. The court there held that a State could not constitutionally deny to dependent unacknowledged illegitimate children workmen's compensation benefits that accrued to dependent legitimate children as a result of the death of their natural father. In so holding, the court announced a dual test essential to the evaluation of distinctions based on an illegitimacy status: What legitimate State interest does the classification promote? What fundamental personal rights might the classification endanger? (406 U.S. 164, 173, 31 L.Ed.2d 768, 777-78, 92 S.Ct. 1400, 1405.) The court concluded that, on balance, the State's legitimate interest in facilitating difficult problems of proof was insufficient to justify the classification created, where dependency on the father, not legitimacy, was the basis for statutory recovery. But no reference to Weber would be adequate which failed to note that the father of the unacknowledged illegitimates was prevented by Louisiana law from acknowledging them and that the fact this barrier was absolute accounted for, at the least, the concurrence of Mr. Justice Blackmun.

After Weber the court decided Gomez v. Perez (1973), 409 U.S. 535, 35 L.Ed.2d 56, 93 S.Ct. 872, which relates more directly to the issue in this appeal. Although the trial court had found that defendant was the natural father of an illegitimate child, the court concluded the father owed the child no legal obligation of support. The Supreme Court held, however, that "once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother." (409 U.S. 535, 538, 35 L.Ed.2d 56, 60, 93 S.Ct. 872, 875.) The court recognized "lurking problems" with respect to proof of paternity, but determined they could not be made into an "impenetrable barrier" to shield otherwise invidious discrimination. (409 U.S. 535, 538, 35 L.Ed.2d 56, 60, 93 S.Ct. 872, 875.) It seems clear that a compelling consideration was the total absence from Texas law of any provision for paternal support of illegitimates. Gomez was followed by two cases whose holdings are not particularly useful in resolving the present appeal; yet they demonstrate the court's concern for the rights of illegitimate children. In neither case was the unconstitutional discrimination against illegitimates overwhelmingly evident. In New Jersey Welfare Rights Organization v. Cahill (1973), 411 U.S. 619, 36 L.Ed.2d 543, 93 S.Ct. 1700, the court examined a State-aid program for poor families which limited its benefits to married couples with minor children. Finding the benefits equally indispensable to the health of legitimate and illegitimate children, the court invalidated the statute because the practical effect of the definition of eligibles was to deny benefits to illegitimates. Finally, in Jimenez v. Weinberger (1974), 417 U.S. 628, 41 L.Ed.2d 363, 94 S.Ct. ...


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