APPEAL from the Circuit Court of Cook County; the Hon. CHARLES
J. GRUPP, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This is an appeal by Judy Lawrence (plaintiff) *fn1 from the denial of her petition for a finding that Richard Lawrence (defendant) was not the father of one of her children (Brandon).
Defendant was granted a divorce from plaintiff in 1973, with a decretal finding that Brandon Lawrence was the child of the parties. In 1974, defendant petitioned to amend the decree — asking, among other things, that plaintiff (who had custody of Brandon and was then remarried to Fred Ramos) be enjoined from telling Brandon that Ramos was his father. After a hearing on the petition, an order was entered in 1975 by agreement of the parties which, in pertinent part, directed that the question of his fatherhood was not to be raised with Brandon and that plaintiff was not to deny that Richard was the father of Brandon.
It appears that Ramos was deceased when plaintiff, in a separate proceeding and without notice to Richard, obtained an order in 1976 changing Brandon's last name from Lawrence to Ramos. When defendant learned of the name change, he petitioned for a rule on plaintiff to show cause why she should not be held in contempt for failure to comply with the 1975 order and for the vacatur of the 1976 order changing Brandon's name.
In a counterpetition, plaintiff stated in pertinent part that at the time of the divorce decree in 1973 and at the time of the 1975 order, she had been "repeatedly threatened by Richard if she attempted to establish that Ramos was the father of Brandon" and that "under the duress of said repeated threats" she was coerced into not making any attempt to establish that Ramos was the father of Brandon. She asked (1) that the judgment pertaining to the paternity of Brandon be set aside and that the court find that defendant was not his father; (2) that a ruling to show cause issue for his failure to pay child support and maintenance; and (3) that defendant be barred visitation rights because Brandon was not his child.
At the hearing on the petitions, there was testimony by plaintiff that she had sexual relations with Fred Ramos beginning in 1963 which included several occasions about nine months prior to the birth of Brandon; that on the day Brandon was born, and also one week later, defendant said that the child did not look like him and stated, "If this child is not mine, so help me, you will be sorry for this"; that she answered that Brandon was his child because she was afraid that he would hurt her or the child, since he had struck her once before; that immediately prior to their 1973 divorce, defendant said that he would kill her if she was lying to him about the paternity of Brandon; that after the divorce, when Brandon was two years old, she told defendant that Ramos was the child's father; that she told him about the name change a couple of weeks after it occurred; and that Brandon was enrolled in school as "Brandon Ramos." On cross-examination, she testified that after the divorce decree, defendant had regular visitations with Brandon; that he "pretty much" saw or requested to see the child on almost all weekends; and that she had sexual intercourse with both Ramos and defendant in the year prior to Brandon's birth.
It was the testimony of 8-year-old Brandon that his name was "Brandon Ramos" and that, when visiting defendant, Brandon calls him "Dad," but when defendant comes to his mother's house, Brandon calls him "Dick."
The significant testimony of defendant was that he had sexual intercourse with Judy in the year prior to Brandon's birth; that he visited Brandon regularly on a weekly basis after the decree was entered until the petitions were filed in November 1978 — after which plaintiff did not permit Brandon to visit him on a regular basis; and that he had never threatened plaintiff.
The trial court entered an order finding, in substance, that there was an insufficient showing of duress; that plaintiff was estopped from challenging paternity; that she was not entitled to blood tests of defendant and Brandon (she had requested them during the hearing); and that defendant was the father of Brandon. The order also directed Judy to change the child's name back to Brandon Lawrence. This appeal is from that order.
In her briefs here, plaintiff states the issue on appeal to be whether the trial court "erred by denying Brandon the right to the establishment of his paternity and identity." We note, however, that the trial court made no ruling denying any such right and, indeed, the record discloses no question was raised in that regard. As pointed out above, the trial court had found in 1973 that Brandon was the child of the parties and had ordered plaintiff in 1975 not to deny that defendant was Brandon's father. The petition of defendant with which we are concerned in this appeal asked that plaintiff be held in contempt for noncompliance with the 1975 order and that the 1976 change of name order be set aside. In her counterpetition, plaintiff asserted that any statements she had made that defendant was the father of Brandon were untrue because made under duress and that, in fact, Ramos was the biological father. She prayed "[t]hat the Judgment pertaining to paternity of Brandon Ramos be vacated and set aside, and that the Court finds RICHARD T. LAWRENCE not to be the father of BRANDON DANIEL RAMOS, terminating all parental rights." She asked also that defendant be barred further visitation rights on the ground that Brandon was not his child or, alternatively, that a rule to show cause be entered against him for failure to pay maintenance and child support.
In a memorandum of law filed in the trial court and at the hearing on the petitions of the parties, plaintiff took the position that the court should have vacated the paternity findings in the 1973 decree and the 1975 order because they were entered on the basis of statements made by her under duress. The trial court held that there was an insufficient showing of duress to justify vacatur of those findings.
We thus consider the issue on appeal not to be, as plaintiff asserts, whether the trial court improperly refused Brandon "the right to establish his paternity and identity" but, rather, whether the trial court properly denied vacatur of the prior paternity findings.
• 1 In this regard, because plaintiff's counterpetition was filed in 1978 and sought vacatur of the 1973 and 1975 findings as to paternity, plaintiff agrees that it should be treated as a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72). That section provides in part that the petition "must be filed not later than 2 years after the entry of the order or judgment" and that "[t]ime during which the person seeking relief is * * * under duress * * * shall be excluded in computing the period of 2 years." In plaintiff's counterpetition, the only allegations concerning duress were that at the time of the 1973 decree and the 1975 order she was "repeatedly threatened" by defendant if she were to attempt to establish that he was not the father of Brandon, and that "under the duress of said repeated threats" she made no attempt to establish that defendant was not the father of Brandon. While she testified that she was threatened at the time of the 1973 decree and it might be assumed that those threats continued up and through the order of 1975, she makes no allegation as to any threats or duress after that 1975 order and, as the petition in question was filed more than two years thereafter — in October 1978, it thus appears that the petition should have been denied as not having been filed within two years. In any event, while the entry of an order obtained by duress is a proper ground for relief under section 72 (People v. Stewart (1978), 66 Ill. App.3d 342, 383 N.E.2d 1179, cert. denied (1979), 441 U.S. 907, 60 L.Ed.2d 376, 99 S.Ct. 1998; In re Sims (1975), 30 Ill. App.3d 406, 332 N.E.2d 36), the burden of proving such duress is upon the person asserting it (see Kohler v. Sears Roebuck & Co. (1977), 56 Ill. App.3d 157, 371 N.E.2d 1044; Collins v. Prestige Casualty Co. ...