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People Ex Rel. Spicer v. Coleman

OPINION FILED MAY 18, 1979.

THE PEOPLE EX REL. BEVERLY SPICER, PLAINTIFF-APPELLEE,

v.

ALBERT COLEMAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT G. MACKEY, Judge, presiding.

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

Defendant appeals from a supplemental order for increased support payments entered in a paternity proceeding. The issues presented are (1) whether defendant's motion to strike and dismiss plaintiff's petition was improperly denied; (2) whether the trial court "erred in forcing the defendant to trial while interrogatories had not been answered"; and (3) whether the trial court erred in taking judicial notice of the insufficiency of the payments originally ordered.

This paternity action originally was brought against defendant in July of 1972 on complaint of Beverly Spicer, who alleged that he was the father of her daughter, Tiffany, born on November 10, 1970. When defendant admitted paternity, an order to that effect was entered and, by a later petition, he was ordered to pay support for Tiffany in the amount of $25 every two weeks. Subsequently, on plaintiff's petition, that amount was ordered increased to $30. A third petition for increase was filed and apparently denied. Then, on April 10, 1978, plaintiff filed the instant petition, alleging that the "expenses for the support, maintenance, education and welfare of the child have increased significantly" since the date of the last support order and that defendant "is financially able to assume part of the increased expenses for his child." The petition requested that support payments be increased to $50 every two weeks. Defendant moved to strike and dismiss the petition, and in the hearing on the motion he argued, among other things, that it should have been brought under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) (hereinafter cited as the Marriage Act); that it was defective in that it was not verified; and that it was deficient in that it did not allege facts showing a change in circumstances among the parties. On April 10, 1978, *fn1 an order was entered denying the motion, granting defendant 15 days within which to file an answer to the petition, and continuing the case to April 27, 1978. On April 14, 1978, defendant filed a document entitled "Demand for information pursuant to Rule 201 et seq. Ill. Sup. Ct.," wherein he requested answers to "Interrogatories pursuant to the Rules of Supreme Court of Illinois 201 et seq." The demand consisted of only three questions, seeking information as to "the costs of maintaining Tiffany Spicer" "in January 1975," "as of August 20, 1976," and "as of April 12, 1978."

When the case was called on April 27, 1978, plaintiff tendered a response to the demand for information. Defendant, who had not filed an answer to plaintiff's petition although the 15 days he had been given to do so had transpired, moved for a continuance, arguing that he could not answer the petition or proceed to trial until he had time to study plaintiff's response to the demand for information. The trial court denied the motion and held the hearing on the petition that same day.

Plaintiff's first witness was Beverly Spicer, who testified that Tiffany has lived with her since birth and has been clothed and fed by her at all times; that when the last support order was entered in 1975, Tiffany was four years old and, at that time, attended a nursery school at a cost of $35 every two weeks; that she (Beverly) was then employed at the South Suburban Post Office, earning $210 every two weeks; that the post office moved to a new location in May of 1975 and, although she was offered a position at the new facility, she did not accept it because she had no means of transportation; that she subsequently did baby-sitting for $75 per week until January of 1976, when she secured a job at Bally Manufacturing Company; that her take-home pay at Bally was approximately $150 per week; that she was discharged in May of 1976 because of excessive absences precipitated by the accompaniment of her older son on court appearances in an unrelated matter; that in November of 1976 she became a part-time employee with the Chicago Police Department — earning $100 to $110 every two weeks; that from February to August of 1977 she simultaneously received unemployment compensation in the amount of $50 per week; that she lost her job with the police department in November of 1977 — again for excessive absences; that during the Christmas season of 1977 she worked at the post office and earned $368; that she has held no other jobs since that time; and that she currently receives $30 every two weeks from defendant, pursuant to the 1975 support order. On cross-examination, she testified that she no longer does baby-sitting because of "bad nerves"; that she is taking medication for hypertension; and that Tiffany currently attends Overton Elementary public school. On redirect examination, she stated that she had been notified by Overton school that Tiffany had high test scores, making her eligible for enrollment in an academic center.

Defendant, called under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60), testified that he has been employed at the Main Post Office for 23 years; that in 1975 his take-home pay was "around two hundred and something" every two weeks; and that his current take-home pay is about $416 or $421 every two weeks.

From the record presented, it appears that defendant called no other witnesses, and the trial court then entered an order increasing the support payments from $30 to $50 every two weeks. This appeal is from that order.

OPINION

Defendant initially contends that the trial court erred in denying his motion to strike and dismiss plaintiff's petition. In support of this position, he argues that the petition, which was brought pursuant to section 9 of the Paternity Act (Ill. Rev. Stat. 1977, ch. 40, par. 1359), should properly have been brought under the Marriage Act. He cites Cessna v. Montgomery (1976), 63 Ill.2d 71, 344 N.E.2d 447, as his sole support for this position, and he urges that the logical extension of the court's holding in Cessna is that once paternity is proved, illegitimates must be treated in the same manner as legitimates, and that therefore increases in support payments for illegitimates must be sought under the Marriage Act by the same procedures applying to legitimates.

• 1 We fail to see, however, that Cessna lends even the slightest support to defendant's argument. The main holding in Cessna was that the two-year statute of limitations on paternity actions was not unreasonable and did not violate substantive due process. No aspect of the decision appears applicable to the case at bar, with the possible exception of dicta wherein the court observed "[t]he Paternity Act * * * provides for the illegitimate support rights equal to those of the legitimate — once paternity is established" (63 Ill.2d 71, 81, 344 N.E.2d 447, 451), and it appears to us that this comment was intended only to quell concerns that any party in that case was somehow afforded unequal treatment.

• 2 Furthermore, it is our belief that the application of the Paternity Act in this case cannot be viewed as improper on the three other grounds urged by defendant. We reject his suggestion that he was prejudiced in some manner because the petition, if brought under the Marriage Act, would have been heard in the Domestic Relations Division of the Circuit Court where, he argues, the judges have greater expertise in support matters. We note, however, that the trial judge in the instant case, as a judge of the circuit court, had jurisdiction to hear the matter and defendant has pointed to nothing in the record, nor have we found anything, to indicate that the trial judge here was not, at the least, of comparable expertise. Neither do we see any merit in defendant's second ground, that the petition should have been dismissed because it was not verified. We have not been referred to any and there appears to be no provision in the Paternity Act requiring such verification.

• 3 Furthermore, we see no merit in the third ground raised by defendant; namely, that the petition was deficient because it failed to allege facts of a change of circumstances in the parties. Section 45(2) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 45(2)) requires that a motion to dismiss or to strike a pleading must point out specifically wherein the pleading is insufficient (Lee v. Conroy (1973), 13 Ill. App.3d 694, 300 N.E.2d 505), so as to provide the opposing party an opportunity to cure the specified objection by amendment (Central Illinois Electric & Gas Co. v. Scully (1959), 17 Ill.2d 348, 161 N.E.2d 304; Lee v. Conroy). In the instant case, defendant's motion does not so specify, as the pertinent part thereof states only that plaintiff's petition "is insufficient and fails to set forth facts." Moreover, the grant or refusal of a motion to strike a pleading is generally within the sound discretion of the court. (Ingersoll v. Klein (1969), 106 Ill. App.2d 330, 245 N.E.2d 288, aff'd (1970), 46 Ill.2d 42, 262 N.E.2d 593.) In the instant case, we do not believe there was any abuse of such discretion, as it appears to us that the petition adequately apprised defendant of the nature of the relief sought and did not fall short of any requirements set forth in the Paternity Act. That Act provides only that the court may "make new or supplemental orders for the support, maintenance, education and welfare of the child as from time to time the court deems necessary, upon petition." Goldberg v. Goldberg (1976), 36 Ill. App.3d 778, 344 N.E.2d 721, cited by defendant, does not support his position. That case dealt with the quantum of proof necessary to sustain an increase of support payments to children of divorced parents, and thus is of no relevance to the question of whether a petition for a support increase in a paternity proceeding contains allegations sufficient to withstand a motion to strike and dismiss.

Defendant's next contention is that the trial court erred in refusing a continuance and ordering him to trial on the same day the answers to his interrogatories were received. In support of this contention, he relies solely upon section 37(1) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 37(1)), which provides in relevant part:

"(1) If the allegations are so wanting in details, that the opposite party should be entitled to a bill of particulars, the pleader shall file and serve a copy of the bill on being served with a notice demanding it. The notice shall point out specifically the defects complained of or the details desired, and a copy thereof shall be filed. If the bill be demanded before the expiration of the time for filing a pleading, the party making the demand shall have the same time to plead after receiving ...


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