Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Zavaleta v. Zavaleta

OPINION FILED NOVEMBER 16, 1976.

FRESIA ZAVALETA, PLAINTIFF-APPELLANT,

v.

JAVIER ZAVALETA, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. HERBERT R. FRIEDLUND, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 14, 1976.

Fresia Zavaleta (hereinafter plaintiff) appeals from an order finding her in contempt of court for failure to produce herself and her minor child for a blood test to determine paternity. This order sentenced her to not more than ten days in the Cook County Jail.

The sole issue on appeal is whether a trial court in a divorce proceeding has the authority to order blood tests for the mother and the minor child of the parties to aid in determining the paternity of the minor child.

Plaintiff filed a complaint for separate maintenance and divorce against Javier Zavaleta (hereinafter defendant) alleging defendant was the father of a child born during their marriage. Defendant counterclaimed for divorce and denied paternity of the child. Upon defendant's motion, the trial court entered an order that plaintiff and the minor child submit to blood tests for the purpose of determining paternity. Plaintiff failed to submit either herself or her child to the blood tests, while defendant did.

Thereafter plaintiff was found to be in contempt of court for failure to comply with the court's order. Plaintiff appealed, but that appeal was dismissed by this court pursuant to Supreme Court Rule 23 (Ill. Rev. Stat. 1973, ch. 110A, par. 23), for lack of finality. *fn1

Upon return to the trial court, plaintiff was again found to be in contempt of court for failure to produce herself and the minor child for blood tests, and ordered she be committed to the Cook County Jail for a period not to exceed ten days with the right to purge herself upon submitting to the blood test. It is from this order which plaintiff now appeals.

In reviewing the record of the trial court, we fail to find any explanation of the court as to the basis on which it allowed the pretrial motion to compel plaintiff and the child to submit to blood tests. Defendant argues this order was allowed pursuant to our supreme court rules governing discovery (Ill. Rev. Stat. 1973, ch. 110A, par. 201 et seq.); while plaintiff contends the authority for the order is the "Act on Blood Tests to Determine Paternity" (hereinafter Blood Test Act) (Ill. Rev. Stat. 1973, ch. 106 3/4, par. 1 et seq.).

• 1 Paternity is a proper issue to be considered in a divorce proceeding. (Sturdy v. Sturdy (4th Dist. 1966), 67 Ill. App.2d 469, 472, 214 N.E.2d 607.) Our divorce act (Ill. Rev. Stat. 1973, ch. 40, par. 7) provides:

"The process, practice and proceedings under this Act shall be the same as in other civil cases, except as otherwise provided by this Act, or by any law or rule of court * * *."

The Civil Practice Act which governs the practice in civil cases states in part:

"Discovery, admissions of fact and of genuineness of documents and answers to interrogatories shall be in accordance with rules." (Ill. Rev. Stat. 1973, ch. 110, par. 58(1).)

Supreme Court Rule 201 (Ill. Rev. Stat. 1973, ch. 110A, par. 201), the general discovery provision, provides a party may "* * * obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action * * *." And this disclosure can be discovered by various methods, including physical examinations. Supreme Court Rule 215 (Ill. Rev. Stat. 1973, ch. 110A, par. 215) specifically provides:

"In any action in which the physical or mental condition of a party or of a person in his custody or legal control is in controversy, the court upon notice and for good cause shown on motion made within a reasonable time before the trial, may order the party to submit to a physical or mental examination * * * or to produce for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.