APPEAL from the Circuit Court of Peoria County; the Hon.
ALBERT PUCCI, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the Circuit Court of Peoria County dismissing the second amended petition of Alex Eugene Jones and Rebecca Lee Jones, his wife (hereinafter referred to as the petitioners), on the grounds that the petition alleged facts showing Richard Weller (hereinafter referred to as the respondent) to be the acknowledged parent of the minor Jerry Lee Weller, yet failed to allege that the respondent had consented to the adoption or was an unfit person as defined by the Illinois Adoption Act. The trial court further found that the petitioner Rebecca Lee Jones, mother of the minor sought to be adopted, had accepted child-support payment from the respondent and thereby acknowledged the parentage of the respondent as to Jerry Lee Weller, the minor.
The factual situation which resulted in this appeal commenced when the petitioner Rebecca Lee Jones during the month of December 1972, and while a minor, had sexual intercourse numerous times with Donald Richard Rubel. As a result of this relationship the petitioner Rebecca became pregnant and gave birth to a son, Jerry Lee, on August 16, 1973. The child was first given as a surname his mother's maiden name and was known as Jerry Lee Lindsay.
Prior to the birth of her son but while pregnant the petitioner Rebecca met the respondent Richard Weller in April 1973 and they had their first date in July or August of that year, shortly before her child was born. On November 22, 1973, the petitioner Rebecca and respondent Richard Weller were married. Sometime subsequent to this marriage the minor child's surname was changed from Lindsay to Weller.
On November 25, 1974, the petitioner Rebecca and the respondent were divorced by a decree of the Circuit Court of Peoria County. In the divorce proceedings the respondent was plaintiff and charged the petitioner Rebecca of having been guilty of extreme and repeated mental cruelty. At the time of the divorce the petitioner Rebecca was still a minor but was represented by a guardian ad litem. It is apparent from the record that in the divorce proceedings the respondent claimed to be the father of the minor child, Jerry Lee Weller, and that the petitioner, the child's natural mother, filed an answer admitting this allegation. A pertinent provision of the decree of divorce provided as follows:
"4. That one child has been born to the parties as a result of said marriage, to wit, Jerry L. Weller, who was born on August 16, 1973, and he is the acknowledged child of the plaintiff, and that both parties hereto are fit and proper persons to have the care, custody, control and education of said minor child."
The decree further provided that the respondent have certain rights of visitation and that he would pay child support in the sum of $20 per week and in addition all necessary medical and dental bills incurred on behalf of the minor child.
Some nine months after being divorced the petitioner Rebecca having married Alex Eugene Jones, both filed a petition for the adoption of the minor child, Jerry Lee Weller. In the petition for adoption it was alleged that Donald Richard Rubel was the natural father of the child but was an unfit person and his consent to the adoption was therefore unnecessary. Service was had on Rubel by publication; however, he failed to answer or in any way enter his appearance in the case. The respondent Richard Weller was made a party to the proceedings and in the petition it was alleged that he had certain custodial rights by virtue of the decree of divorce entered when he divorced the petitioner Rebecca.
The respondent Richard Weller filed both an answer and an affirmative defense to the petition for adoption. In his answer the respondent admitted that the petitioner Rebecca Lee Jones is the mother of the minor child but denied that Donald Richard Rubel was the father of the child. In his affirmative defense the respondent stated that the birth of the minor child became legitimatized with his marriage to the child's mother and his acknowledgement to the effect that he was the child's father. He further affirmatively stated that both he and the child's mother on February 5, 1974, executed affidavits which averred that he, the respondent, was the father of the child. The respondent in his affirmative defense further alleged that in the divorce proceedings the petitioner Rebecca admitted the allegations of his complaint which stated that a child, Jerry Lee Weller, had been born to the parties and was the acknowledged child of Richard D. Weller.
Further pleadings were filed in the case but we specifically direct our attention to the respondent's answer to interrogatories wherein he admitted that he was not the natural father of the minor, Jerry Lee Weller, and that he did not have intercourse with the child's mother until around October 1973; however, he stated that a father-and-son relationship had developed between him and the child.
The issue presented for determination in this appeal is whether based upon the facts and circumstances as we have set forth from the record, the respondent can be deemed to be the acknowledged father of the minor child who is sought to be adopted and whether the respondent has become vested with the rights of a natural parent to withhold consent to the adoption of a minor child as provided in the Illinois Adoption Act.
When the respondent claims to be the father of the minor child, Jerry Lee, because he acknowledged him as such, we can only surmise that he is attempting to utilize a provision of our Probate Act which relates to the status of "Illegitimates" as far as descent and distribution of property is concerned. Section 12(8) of the Probate Act (Ill. Rev. Stat. 1975, ch. 3, par. 12(8)) provides in part as follows:
"* * * A child who was illegitimate whose parents intermarry and who is acknowledged by the father as the father's child is legitimate."
• 1 This provision providing for the legitimization of a child contains three elements, to wit, (1) the parents must intermarry, (2) that the parties who intermarry are the parents of the illegitimate child, and (3) the father acknowledged the illegitimate as his child. (See Miller v. Pennington (1905), 218 Ill. 220, 75 N.E. 919, and In re Estate of Karas (1974), 21 Ill. App.3d 564, 315 N.E.2d 603.) In the instant case the respondent has failed to establish the fact that he sired the minor child Jerry Lee. In fact, in response to written interrogatories served upon him the respondent conclusively proved that he could not have fathered the child since he did not have sexual intercourse with the child's mother until October 1973, and the child was born approximately two months ...