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People Ex Rel. Cizek v. Azzarello

OPINION FILED FEBRUARY 26, 1980.

THE PEOPLE EX REL. SHARON CIZEK, PLAINTIFF-APPELLEE,

v.

MICHAEL AZZARELLO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES L. GRIFFIN, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Following a bench trial in the circuit court of Cook County, defendant Michael Azzarello was found to be the father of a male child born out of wedlock to plaintiff Sharon Cizek and was ordered to pay child support as well as the cost of child delivery. Defendant's motion for a new trial was denied.

Defendant appeals contending that (1) he was deprived of a fair trial by the trial court's failure to determine whether he knowingly and understandingly waived his right to a trial by jury; (2) he was denied due process by the trial court's failure to order blood tests; (3) he was denied due process by the absence of a court reporter during the trial; (4) his motion for a new trial was improperly denied because new and vital evidence had recently been discovered; (5) the evidence was insufficient to support the finding of paternity against him; and (6) he was deprived of effective assistance of counsel.

Because no verbatim transcript of the trial was taken, defendant filed a certified bystander's report pursuant to Supreme Court Rule 323(c) (Ill. Rev. Stat. 1977, ch. 110A, par. 323(c)) which indicated the following evidence.

Plaintiff first met the defendant in February of 1976 and engaged in sexual intercourse with him in March, May and either the end of July or in early August of 1976; that neither she nor defendant used contraceptives during these times; and that her last menstrual period occurred the last week of July 1976. She testified that in November of 1976 her physician told her she was three months pregnant. When plaintiff informed defendant that she was pregnant, he told her to let him know if he could do anything and offered to pay for and made transportation arrangements for an abortion. She testified that she did not have sexual relations with any man other than the defendant from the time she began going out with him until well after her baby was born on May 27, 1977. She also testified that two of defendant's friends, Bob Hansen and Ken Wittie, told her defendant had admitted to them that he was the father of her baby and that it was Ken Wittie who offered to drive her to Michigan for an abortion.

Defendant testified that he met plaintiff in February of 1976 and that he had intercourse with her on three occasions, the last time being at least one week prior to July 10, 1976, the date on which he attended a friend's wedding. He stated that plaintiff called him many times asking for money to pay for an abortion and then later to pay for the hospital expenses. He denied ever offering plaintiff money or making plans for her to have an abortion.

Defendant's witness, Ken Wittie, testified that he introduced plaintiff to defendant and that the last time he saw them together was at least one week prior to July 10, 1976, the date he attended a friend's wedding with the defendant.

The trial court found defendant to be the father of plaintiff's baby and after denying defendant's motion for new trial, ordered defendant to pay plaintiff $25 a week for child support and $10 a week for child delivery costs until the sum of $425 was paid.

I.

Defendant first contends that he had a constitutional right to a trial by jury, and that he was denied this right by the trial court's failure to determine whether he knowingly and understandingly waived this right.

Defendant cites section 103-6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 103-6) as a codification of his constitutional right to a jury trial. That section provides, "Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court." This provision governs only criminal proceedings. Ill. Rev. Stat. 1977, ch. 38, par. 100-2; Alsen v. Stoner (1969), 114 Ill. App.2d 216, 223, 252 N.E.2d 488.

• 1, 2 The proceeding involved in the present case was brought pursuant to the Paternity Act. (Ill. Rev. Stat. 1977, ch. 40, pars. 1351 through 1368.) *fn1 A paternity proceeding, although criminal in form, is a civil proceeding to determine the identity of the putative father, provide support for the illegitimate child, and prevent the child from becoming a public charge. (People ex rel. Mathis v. Brown (1976), 44 Ill. App.3d 783, 786, 358 N.E.2d 1160, and cases cited therein.) Its purpose is not to impose a penalty as in criminal actions, but to convert a father's moral obligation to support his illegitimate children into a legal obligation. (Cessna v. Montgomery (1976), 63 Ill.2d 71, 89-90, 344 N.E.2d 447.) A paternity proceeding is governed by the Civil Practice Act unless a specific provision of the Paternity Act requires otherwise. People ex rel. Mathis v. Brown.

• 3 Although not mentioned by either party, section 13 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, § 13) provides: "The right of trial by jury as heretofore enjoyed shall remain inviolate." This provision has been construed by our supreme court to mean the right of trial by jury as it existed at common law and as enjoyed at the adoption of the constitution. It does not mean a jury trial shall be had in every case, or preclude all restrictions on the exercise of that right. (Hudson v. Leverenz (1956), 10 Ill.2d 87, 91, 139 N.E.2d 255.) As this court stated in Clark v. Brown (1970), 121 Ill. App.2d 280, 284, 257 N.E.2d 565, in a paternity proceeding there can be no question as to one's constitutional right to trial by jury since this cause of action was not recognized at common law.

• 4 Although there is no constitutional right to a jury trial in a paternity action, section 6 of the Paternity Act does create a statutory right to jury ...


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