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People Ex Rel. Gomez v. Wedech

OPINION FILED MARCH 16, 1978.

THE PEOPLE EX REL. JUANA MARIA GOMEZ, PLAINTIFF-APPELLANT,

v.

PAUL WEDECH, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. EDWIN KRETSKE, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

The State appeals from a judgment of the circuit court of Cook County discharging defendant in a proceeding brought under the Paternity Act. (Ill. Rev. Stat. 1975, ch. 106 3/4, par. 51 et seq.) The State contends that the trial court's decision was against the manifest weight of the evidence.

We reverse and remand.

Plaintiff instituted this proceeding by filing a complaint charging that defendant, Paul Wedech, was the father of a daughter born out of wedlock on February 1, 1976. Defendant waived a jury trial and was tried by the court.

At trial, defendant was called by the State as an adverse witness under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1975, ch. 110, par. 60.) Defendant, who was 32 years old, had been employed at a gas station for 4 years. He first met the plaintiff in 1972. Two months later, he began seeing her and having sexual intercourse with her which continued on a regular basis until Christmas of 1974. They usually met at his apartment. During the period of 1972 to 1974, defendant claimed to have given plaintiff $6,000 in cash gifts. After Christmas of 1974, they discontinued their sexual relationship, but subsequently he saw her at the gas station.

In December 1975, defendant went to Brazil, returning February 12, 1976. During this time he corresponded with the plaintiff. Letters and postcards sent from Brazil were admitted into evidence. When confronted by the plaintiff with the accusation that he was the father, defendant denied it, suggesting that they take blood tests.

The plaintiff, Juana Maria Gomez, testified through an interpreter. She was unemployed and had a child, although she had never been married. Two months after she and defendant met, they began having sexual intercourse approximately twice a week. She and defendant had an argument in the early spring of 1975. For 5 or 6 weeks they did not have sexual relations but later resumed. During the months of April through July of 1975, she had sexual intercourse with him on a regular basis in his apartment. She denied having sexual relations with anyone else.

Around the beginning of June, when she missed her menstrual period, she went to visit a doctor; her pregnancy test was positive. When she informed defendant that she was pregnant, defendant told her that he did not want her to have the baby and said that he was going to Brazil. Subsequently she received letters and cards from him from Brazil.

The baby was expected on February 22, 1976, but was born on February 1, 1976. When plaintiff reached defendant by telephone on February 12, 1976, he told her that he already knew that the baby had been born. She related that on another occasion he said that he was the father. Plaintiff testified she never received money from the defendant. She testified further that from the time she met him until the date the child was born, she never had sexual intercourse with any other man.

Milagros Gomez, plaintiff's sister, testified that in the period from 1974 to the spring of 1975 defendant would drive to her house to visit her sister. Florence Kurban testified that she, plaintiff and her sister went to the defendant's apartment sometime in 1975.

The State introduced into evidence a photograph of plaintiff and defendant standing together taken at his apartment while she was pregnant. A photograph taken of them in 1974 at the gas station was also admitted, as was a photograph of him which he allegedly gave to her before he went to Brazil.

Defendant testified in his own behalf: He first met the plaintiff in 1972 and had sexual relations with her until Christmas of 1974. He gave her money on numerous occasions. After she was pregnant, they had conversations at the gas station, but he told her that her frequent visits were jeopardizing his job. He explained that he kept in contact with her after she became pregnant because he was afraid she would cause him to lose his job if he refused to see her.

At the conclusion of the trial, the court found that the State had not carried its burden of proof, mainly because of inconsistencies in the plaintiff's testimony, and her inability to remember when certain events occurred.

In a paternity case, questions of the credibility of the witnesses and the weight to be given their testimony are for the trier of fact, and these findings must be affirmed on review unless they are clearly and palpably erroneous. People ex ...


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