APPEAL from the Circuit Court of Cook County; the Hon.
LAWRENCE GENESEN, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendant, J.T. Myers, appeals from a judgment entered after a bench trial which found him to be the father of a child born to plaintiff, Janice Reynolds. On appeal, defendant contends: (1) that the trial court improperly placed the burden of proof on defendant; (2) that the court erred in basing its finding upon an incorrect recollection of the evidence.
At trial, defendant admitted that he first had sexual intercourse with plaintiff in her home in June 1973, and that this liaison continued until September 1974. In July 1974, plaintiff informed him that she might be pregnant. Her suspicion was confirmed the following month when she was examined by a physician. Defendant was told that he was the father of the child and, on March 3, 1975, when the child was born, defendant signed his name at the hospital as the child's father. He thereafter supported the child by purchasing food, clothing and other items, and making direct payments for medical expenses.
Defendant first began doubting that he was the father when an acquaintance, Eugene O'Neal, told defendant that he, as well, had sexual relations with plaintiff. Three other men also told defendant that they had sexual intercourse with plaintiff, and ridiculed him for getting "stuck."
Plaintiff testified that from April 1974 to August 1974 she engaged in sexual intercourse with defendant approximately three times a week. In June 1974 plaintiff had an abortion, and afterwards used an intrauterine device as a means of birth control. This device was removed after a short time. Defendant lived with plaintiff in May and June of 1974, during which time defendant was involved in divorce proceedings with his wife. From May 1974 to August 1974 plaintiff did not engage in sexual intercourse with anyone except defendant. On March 3, 1975, plaintiff gave birth to a male child, two weeks premature of a full nine-month term.
For defendant, Dennis Pallazzola testified that he met plaintiff in the spring of 1974 when Eugene O'Neal introduced him to her. Pallazzola went to plaintiff's apartment with O'Neal, paid plaintiff 10 dollars, and had sexual intercourse with her. Pallazzola had intercourse with plaintiff on subsequent occasions, once or twice a week during June and July, and was joined by Robert P. Kennedy. Pallazzola further asserted that he always paid plaintiff for her sexual favors. At one time in August 1974, Pallazzola, Kennedy, O'Neal, three other men and two other women, went to plaintiff's apartment. Two of the men left after a short while. The ones who remained all partook in sexual intercourse. Pallazzola contended he continued to have sexual relations with plaintiff for some time thereafter.
Robert P. Kennedy testified that he also began having sexual intercourse with plaintiff after meeting her in the spring of 1974. Although he stated that he took part in sexual relations with plaintiff along with Pallazzola and two other men, Kennedy said that this occurred about July 4, and that the other two women and two of the men left before the remaining four men had sexual intercourse with plaintiff. Afterwards, each man gave plaintiff 10 dollars. Kennedy stated he continued to have intercourse with plaintiff in August 1974.
Eugene O'Neal testified that he first met plaintiff in March, 1974. He had sexual intercourse with her in her apartment the evening they met, for which he paid 10 dollars. O'Neal continued to have sex with plaintiff twice a week until August 1974. O'Neal also recounted that in July, he and three others had sexual relations with plaintiff after two couples had left plaintiff's apartment.
Defendant testified that he assumed that he was the father of plaintiff's child until May 1975, when he was told that others had had sexual relations with plaintiff.
In rebuttal, Barbara Reynolds, plaintiff's sister-in-law, testified that she was a very frequent visitor to plaintiff's home. She asserted she stayed in plaintiff's home as often as six days a week during June, July and August of 1974. Defendant was living with plaintiff during some of those months. The witness further stated that she had never seen another man in the plaintiff's apartment.
Edward Reynolds, plaintiff's father, testified that he owned the two-apartment building where plaintiff resided, and he lived in the first floor apartment. He said he did not see any men enter or leave plaintiff's apartment other than defendant.
At the close of the evidence, the trial court found that defendant was the father of the child born to plaintiff and ordered that defendant make payments for the child's support. The trial judge specifically stated that "after listening to the testimony, that I do not believe that ...