APPEAL from the Circuit Court of Cook County; the Hon.
REGINALD HOLZER, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
This is an appeal from the grant of defendants' motion for a directed finding based on plaintiff having failed to prove a prima facie case and overcome the presumption of legitimacy of a child born to a marriage. Plaintiff raises the following issues for review: (1) whether the trial court's directed finding was contrary to the evidence; (2) whether the trial court erred in denying plaintiff's motion that defendant James submit to a blood test; (3) whether the trial court erred in denying plaintiff's motion for the parties to submit to the Human Leucocyte Antigen (HLA) test; and (4) whether the statutory scheme as represented by the Paternity Act (Ill. Rev. Stat. 1979, ch. 40, par. 1351 et seq.) denies to males the equal protection of the laws and interferes with plaintiff's fundamental right to exercise fatherhood.
Defendant Harriet Mecklenburger was called under section 60 and testified that in the summer of 1972 defendants advertised for a babysitter on the bulletin board of Northwestern University. The service of baby-sitting 3 days per week for the Mecklenburgers' 3-year-old adopted daughter would be exchanged for a rent-free room. Plaintiff responded to the advertisement and, a few weeks later in September 1972, moved into defendants' Evanston residence. A friendship and subsequent love affair developed between plaintiff and defendant Harriet.
Harriet further testified that she and her husband were having difficulty conceiving a child. Both were undergoing treatment at the Northwestern University Fertility Institute. Harriet had ovulatory problems and James was diagnosed as having a low sperm count. On December 12, 13, and 14, 1972, Harriet underwent treatment at the Institute. She stated that on December 13, 1972, she was artificially inseminated with sperm of her husband and an anonymous donor. On December 12, 1972, she had sexual intercourse with her husband. Plaintiff testified that on that same evening, while James was asleep, Harriet had sexual intercourse with him. On January 5, 1973, Harriet's pregnancy test was positive. She was delivered of a male child on August 31, 1973. Harriet's husband, James, was considered the father of the child.
The love affair between plaintiff and Harriet continued intermittently during the pregnancy. However, in March 1973, plaintiff moved out to share an apartment with a woman he had begun to date. Plaintiff testified that Harriet would visit while the other woman was at work, or occasionally he would visit Harriet. After the birth of the child, Harriet took him on her visits to plaintiff.
Plaintiff and several witnesses testified that Harriet frequently made references to the events leading up to her pregnancy. According to the witnesses, Harriet stated that Jim, her husband, Ed (the plaintiff), or the donor could be the father. Plaintiff offered many love letters and cards he had received from Harriet which contained references to their relationship and references to the possibility that plaintiff might be the child's father. After the birth of the child, though plaintiff and Harriet continued their affair on an infrequent basis, the record reflects that each engaged in affairs with others. Plaintiff saw the child on visits and occasionally purchased gifts for him. But, it was established that the gifts, consisting of a gold birth ring, a rattle and a toy car, were no more significant than those that plaintiff gave to the children of friends.
In 1976, plaintiff traveled extensively in Europe, Africa and the Middle East, returning to the United States in 1977. Most of the letters and cards offered into evidence were written by Harriet to plaintiff during this period. Also, during the 1976-77 period, the Mecklenburgers separated. Their marriage was dissolved by a District of Columbia court in December 1977. James was adjudicated the father of the two children born or adopted during the marriage. He has provided for their support. When plaintiff returned to the United States in January 1977, he needed a place to live. Harriet allowed plaintiff to move in with her. Plaintiff cared for the male child 3 days per week while Harriet worked. Harriet's young daughter was attending school during the day. In April 1977, after a quarrel, Harriet asked plaintiff to leave her home.
On November 28, 1978, plaintiff filed his action seeking declaration that he is the father of the child, a grant of visitation rights, and an order preventing Harriet from removing the child from Cook County or secreting the child from plaintiff. A guardian ad litem was appointed for the child. The guardian attempted to restrain plaintiff from discussing the case with the press. In June 1979, the plaintiff, defendant Harriet, and the child underwent blood tests at Evanston Hospital. The results did not exclude plaintiff as the father of the child. In September 1979, plaintiff petitioned for additional blood tests, specifically the Human Leucocyte Antigen Test (HLA). This request was denied. After filing motions and memoranda of law, plaintiff obtained leave to join defendant James as a party defendant on November 29, 1979. Hearings began in March 1980.
Harriet was called under section 60. Plaintiff's exhibits consisting of love letters and cards sent by Harriet to plaintiff were offered into evidence. Harriet denied that she ever said plaintiff was the father of her son. Plaintiff testified and on cross admitted that he had not supported or offered to support the child. Friends of the plaintiff testified as to conversations they had with Harriet during the years of the affair. Each stated that Harriet had said it was possible that plaintiff was the father, but no one testified that Harriet said plaintiff was the father. On cross, these friends were shown to have a particular bias about the litigation and the parties — each, at one time, had been a lover of one of the parties to this litigation.
At the close of plaintiff's case in chief, the defendants moved for a directed finding on the grounds that plaintiff had failed to overcome the presumption of legitimacy of a child born into a marriage. In granting the motion, the trial court stated that plaintiff had failed to show either the impossibility of James' access to Harriet, James' sterility, or James' total lack of power of procreation. Under the law of Illinois, James, not plaintiff, is deemed to be the child's father. Plaintiff appeals.
Plaintiff contends the trial court's directed finding in favor of defendants was contrary to the evidence. We do not agree. Our courts> have held that in non-jury cases in ruling on a section 64(3) motion (Ill. Rev. Stat. 1979, ch. 110, par. 64(3)), the court must apply a two-step analysis. (Chicago Title & Trust Co. v. Ceco Corp. (1980), 92 Ill. App.3d 58, 68, 415 N.E.2d 668, 676.) Firstly, the trial judge must determine, as a matter of law, whether the plaintiff has made out a prima facie case. (Kokinis v. Kotrich (1980), 81 Ill.2d 151, 154, 407 N.E.2d 43, 45.) The plaintiff must have presented some evidence, more than a scintilla, on every essential element of his cause of action. (Chicago Title & Trust Co., at 68.) If he has not, the court should, without more, grant the motion and enter judgment in the defendant's favor. Kokinis, at 155.
• 1 Secondly, if plaintiff has made out a prima facie case, the trial judge, in the role of finder of fact, must weigh the evidence. (Kokinis, at 155.) The court must consider all of the evidence, including any favorable to the defendant, and must pass on the credibility of witnesses, draw reasonable inferences from the testimony, and generally consider the weight and the quality of the evidence. Kokinis, at 154. Accord, City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill.2d 40, 57, 349 N.E.2d 399, 408; Jackson v. Navik (1976), 37 Ill. App.3d 88, 90, 346 N.E.2d 116, 120.
This weighing process may result in the negation of some of the evidence necessary to the plaintiff's prima facie case, in which event the court should grant the defendant's motion and enter judgment in his favor. (Kokinis, at 155.) If, however, after the weighing process, there is sufficient evidence to establish that plaintiff's prima facie case remains, the court should deny the defendant's motion and proceed as if the motion had not been made. (Kokinis, at 155.) On appeal, the decision of the trial court should not be reversed unless it is contrary to the manifest weight of the evidence. Kokinis, at 154.
Plaintiff attempted to establish his paternity of a child born August 31, 1973 to the Mecklenburgers. To do this, plaintiff had the burden of proof of overcoming the presumption of legitimacy. The presumption is that a child born to a married woman is legitimate. People ex rel. Adams v. Mitchell (1980), 89 Ill. App.3d 1023, 1028, 412 N.E.2d 678, 682; In re Ozment (1978), 61 Ill. App.3d 1044, 1047, 378 N.E.2d 409, 412; People ex rel. Smith v. Cobb (1975), 33 Ill. App.3d 68, 70, 337 N.E.2d 313, 315; People ex rel. Jones v. Schmitt (1968), 101 Ill. App.2d 183, 186, 242 N.E.2d 275, 276; ...