APPEAL from the Circuit Court of Cook County; the Hon. CALVIN
C. CAMPBELL, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Following a jury trial the defendant, Tevell Mitchell, was found to be the father of a child born to plaintiff, Agnes Adams, on February 17, 1973. Judgment was entered on this finding and defendant was subsequently ordered to pay $30 per week for the support of the child. On appeal defendant contends: (1) at the hearing on defendant's motion to dismiss the complaint, based on the tolling of the two-year limitation period for such actions, the trial court erred in placing on defendant the burden of going forward with evidence to counter the allegations of estoppel contained in plaintiff's complaint; (2) the proof was insufficient to establish that defendant was the father of plaintiff's child.
Plaintiff filed a verified complaint on July 22, 1975, alleging that defendant was the father of Lauren Irene Mitchell, born to her on or about February 13, 1973. Defendant moved to dismiss the complaint on the ground that it was not filed within the two-year limitation period of the Paternity Act. (Ill. Rev. Stat. 1975, ch. 106 3/4, par. 54, now contained in Ill. Rev. Stat. 1979, ch. 40, par. 1354.) Subsequently plaintiff filed an amended complaint in which she alleged, inter alia, that she had not previously instituted a paternity action because defendant acknowledged the child was his and, at the time they separated, promised to continue to pay money toward the support of the child. Plaintiff also alleged that after they separated defendant did continue to pay a small sum of money each week toward the support of the child until April 1975.
At the hearing on defendant's motion to dismiss, the trial court *fn1 ruled, over defendant's objections, that the burden was on defendant to overcome the allegations of estoppel contained in plaintiff's amended complaint. Defendant called plaintiff as a section 60 witness. (Ill. Rev. Stat. 1977, ch. 110, par. 60.) Plaintiff testified that defendant asked her to leave in May 1973. She denied that this was because the child was not his. Defendant gave her amounts of money ranging from $5 to $30. The last payment he made to her was for $30 in April 1975. She did not report this income on her tax return, nor did she inform her public aid caseworker. Plaintiff testified that she failed to report this income because it was not that significant. However she also testified that she needed it for her children. She explained that she did not file the paternity action earlier because defendant had been giving her support and it appeared they would be getting back together. After they had separated they again had sexual relations and the defendant promised several times to marry her.
After hearing this testimony and the arguments of counsel the trial court denied defendant's motion to dismiss.
Both plaintiff and defendant testified at trial. According to the plaintiff she met the defendant in 1971 and lived with him from May 1972 until May 1973. In June, July, and August of 1972 she had sexual relations with defendant twice a week. During the entire year she lived with him she had sexual relations only with him. In August 1972 she learned she was pregnant and so informed defendant. The child was born February 17, 1973. Defendant's insurance paid for the birth expenses. Defendant contributed to the support of the child on at least a monthly basis until April 1975. While living with defendant the plaintiff used the name Agnes Mitchell.
Plaintiff admitted that she had married Barry Adams in 1958. She was unable to provide any evidence that they were subsequently divorced. However she testified that at the time of trial (October 1978), she had not seen Adams in 10 years.
Defendant testified that he first met the plaintiff in August 1972 although he had "seen" her earlier. He first had sexual relations with her in late September 1972 and she moved in with him the following month. In December she told him she was pregnant. He did not believe the baby was his and continued living with plaintiff after the birth only because she had nowhere else to go. He had not authorized the insurance payments for the child, learning of them only after the fact. He paid support for the child until May 1973.
Defendant first contends that at the hearing on his motion to dismiss the complaint based on the two-year limitation period contained in the Paternity Act the trial court erred in placing on defendant the burden of going forward with evidence to counter the allegations of estoppel contained in plaintiff's amended complaint. We agree with this contention, but find no prejudice arising from the error and no basis for reversal because of it.
• 1 Manifestly, plaintiff's complaint established that the two-year period had run prior to the filing of the complaint. It alleged that the child was born on February 17, 1973. The initial complaint was filed on July 22, 1975. Section 54 of the Paternity Act (Ill. Rev. Stat. 1975, ch. 106 3/4, par. 54, now contained in Ill. Rev. Stat. 1979, ch. 40, par. 1354) provides in pertinent part:
"No [paternity action] may be brought after the expiration of 2 years from the birth of the child. However, where the person accused has acknowledged the paternity of the child by a written statement made under oath or affirmation or has acknowledged the paternity of such child in open court, prosecution may be brought at any time within 2 years from the last time such acknowledgment was made or within 2 years from the last time the person accused contributed to the support, maintenance, education and welfare of the child subsequent to such acknowledgment. The time any person so accused is absent from the State shall not be computed."
In addition to the exception provided in the statute our supreme court has held that under the proper circumstances a defendant may be estopped from raising the limitation period as a defense:
"The test to be applied is both factual and legal. The trial court must determine after an evidentiary hearing whether defendant's conduct within two years of the child's birth significantly discouraged plaintiff from bringing suit until after the limitation period expired. Estoppel may be appropriate where defendant has acknowledged the child in an unambiguous statement in the presence of third parties, even though not under oath or in open court, or where defendant has significantly contributed to the support of the child. In either situation an action must still be brought within two years of the most recent statement or significant contribution." (Cessna v. Montgomery (1976), 63 Ill.2d 71, 88, 344 N.E.2d 447, 455.)
The court in Cessna did not address the question of who was to bear the burden of proof in this hearing, but we find this to be a settled question under general principles applicable to pleading statutes of limitation as bars to an action. It is the party seeking to avoid application or operation of the limitation period who has the burden of proving the facts which will establish his contention. (Wilson v. LeFevour (1974), 22 Ill. App.3d 608, 317 N.E.2d 772; People ex rel. Sides v. Johnson (1920), 220 Ill. App. 212; 25 Ill. L. & Prac. Limitations § 203 (1956).) Thus, in this cause ...