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Fink v. Roller

OPINION FILED AUGUST 31, 1979.

MARGARET J. FINK, A/K/A MARGARET J. YOUNG, PLAINTIFF-APPELLANT,

v.

EDWIN A. ROLLER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Madison County; the Hon. GEORGE FILCOFF, Judge, presiding.

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

Rehearing denied October 2, 1979.

Plaintiff appeals from an order of the circuit court of Madison County dismissing her petition to modify child support payments arising out of a paternity action.

On April 27, 1967, plaintiff brought a paternity suit against defendant charging that he was the father of her child born out of wedlock on October 17, 1966. In an effort to compromise their dispute the parties signed a stipulation on November 8, 1967, which provides in part:

"1. The Defendant shall pay to the Plaintiff, as a contribution toward the support of said minor child, the sum of Fifteen Thousand Three Hundred Dollars ($15,300.00), the same to be payable at the rate of not more than Seventy Five [sic] Dollars ($75.00) per month * * *.

3. The Plaintiff shall have the right to claim said child as an exemption for income tax purposes through the year 1971, and the Defendant shall have such right thereafter.

4. The Defendant shall have the rights of visitation with said minor child * * *.

7. The Plaintiff further agrees that she will not at any time in the future permit said child to be adopted by any other person or persons without first giving the Defendant the opportunity to adopt said child. * * *

8. It is agreed by both parties that the defendant is the father of the minor child, EDANA ANN FINK, and that this stipulation shall be a full and final settlement between the parties * * *."

On November 8, 1967, the trial court approved the stipulation and entered an order stating that "this cause shall be deemed to have been disposed of by settlement."

Plaintiff filed a petition to modify the child support provision of the stipulation on October 25, 1977, alleging that changed circumstances subsequent to the November 8, 1967, order required that the support payments be increased for the best interest and welfare of the child. Defendant filed a motion to dismiss arguing that the stipulation as adopted by the court was a final order not subject to modification. In granting the motion to dismiss the trial court held that the order fixing the amount of support came within the purview of section 9A of the Paternity Act (Ill. Rev. Stat. 1977, ch. 40, par. 1360) because the stipulation constituted a full and final settlement.

The issue presented for review, which is one of first impression before this court, is whether a trial court retains jurisdiction to modify a child support provision in a paternity settlement where the defendant has acknowledged in the settlement that he is the father of the child.

Plaintiff contends on appeal that the petition to modify is governed by section 9 of the Act rather than section 9A, thereby giving the trial court jurisdiction to modify the ...


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