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Morelli v. Battelli

OPINION FILED JANUARY 9, 1979.

GEORGE MORELLI, PETITIONER-APPELLANT,

v.

VIOLET L. BATTELLI, ADMINISTRATOR-RESPONDENT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. HELEN KELLEHER, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

This appeal arises from a proceeding to determine heirship, instituted by petitioner George Morelli. Pursuant to a hearing in the circuit court of Cook County, Probate Division, that court found that petitioner had not proved, by clear and convincing evidence, that he was the illegitimate son of decedent, Alphonse J. Battelli. It is from this finding that petitioner appeals.

Alphonse J. Battelli, decedent, died intestate May 24, 1976. On July 20, 1977, Violet Battelli, wife of deceased, filed a petition for issuance of letters of administration. This petition requested that she be named administrator of her husband's estate. Letters of administration did issue to Violet Battelli.

On October 7, 1977, the circuit court entered an order declaring heirship. The order stated that the following five persons were heirs of decedent: (1) Violet Battelli, wife, (2) Sandra Palumbo, daughter, (3) Diane Susek, daughter, (4) Joseph Battelli, son and (5) Patricia Battelli, daughter.

On October 11, 1977, petitioner, George Morelli, filed a petition to amend heirship. Through this petition Morelli alleged (1) that decedent was petitioner's natural father having fathered petitioner out of wedlock with petitioner's mother, Patricia Walker, (2) that decedent had repeatedly acknowledged, both publicly and privately, that petitioner was his true and natural son born out of wedlock, and (3) that petitioner should be included in the table of heirship and receive a proportionate share of deceased's assets.

On October 31, 1977, in response to Morelli's petition, Violet Battelli filed an answer to the petition to amend heirship. Battelli, through this petition, (1) demanded strict proof of petitioner's allegations and (2) stated that in absence of said proof petitioner should be denied relief and the table of heirship confirmed as originally proven.

The circuit court commenced a hearing on heirship. The hearing, subsequently to be analyzed in detail, included the testimony of various witnesses including petitioner Morelli. The court also invited counsel to submit written briefs on this matter. Following the hearing, on February 23, 1978, the circuit court entered an order finding that petitioner Morelli had not proven by clear and convincing evidence that he is the illegitimate son of decedent, Alphonse J. Battelli. The petition to amend heirship was denied. It is from this order that petitioner appeals.

• 1 Prior to analyzing the testimony adduced in the hearing conducted by the circuit court we note that clear and convincing evidence is required to prove the paternity of Alphonse J. Battelli. In equating the requirement of clear and convincing evidence we have determined that such evidence is a quantum of proof which leaves no reasonable doubt in the mind of the trier of fact. In re Estate of Larimore (1978), 64 Ill. App.3d 470, 381 N.E.2d 76.

• 2 Furthermore, we note that our scope of review is narrow in a case of this type. We cannot disturb the finding of the trial court unless such finding is contrary to the manifest weight of the evidence. In re Estate of Larimore (1978), 64 Ill. App.3d 470, 381 N.E.2d 76; In re Estate of Conrad (1969), 117 Ill. App.2d 29, 254 N.E.2d 123; In re Estate of Drisch (1969), 112 Ill. App.2d 242, 250 N.E.2d 513.

Patricia Walker testified that she first met decedent in the late 1940's. She indicated that their friendship grew and they eventually lived together as man and wife.

Walker discovered that she was pregnant in the fall of 1950. She testified that she and decedent planned to have a child and he was happy upon learning of her pregnancy. Decedent did, however, request that the child not be named Battelli. Decedent feared that news of the birth would find its way into a local newspaper. Walker testified that she complied with decedent's request. The child, born May 4, 1951, in Oak Park Hospital, was named George Morelli.

Walker further testified that decedent paid the hospital bill and purchased all the food and clothes for the child. She stated that she last saw decedent in 1975 at dinner with her sister and petitioner. Decedent paid for the dinner.

On cross-examination Walker noted that she was aware, prior to her pregnancy, that decedent was married. She also stated that she did not purposely become pregnant but both she and decedent desired a child. Walker testified that in the 9-month period preceding the child's birth she had sexual intercourse with no person other than decedent. Finally, Walker indicated that she had no record of the clothing expenditures allegedly made by decedent.

Marie Agnes Fese testified that she was an acquaintance of Patricia Tetzloff (Walker). Fese testified that Walker was one of three women impregnated by decedent. Fese stated that the fathering ...


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