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Watkins v. Martin

OPINION FILED MAY 31, 1983.

PATRICIA A. WATKINS, PLAINTIFF-APPELLEE,

v.

HENRY D. MARTIN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Joseph T. Lavorci, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 5, 1983.

Patricia A. Watkins (plaintiff) brought this paternity action against Henry D. Martin (defendant). After hearings, the trial court entered a judgment finding paternity. After a subsequent hearing, the trial court ordered defendant to pay monthly child support payments of $300. Defendant appeals.

Plaintiff filed a motion to dismiss this appeal on the ground that the order appealed from, entered October 6, 1982, is not a final order because it does not contain the special finding required by Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)). The record shows plaintiff's petitions for allowance of attorney fees and costs and also retroactive support during pregnancy remain pending. Defendant has filed objections to the motion to dismiss. Defendant cites and depends primarily upon Deckard v. Joiner (1970), 44 Ill.2d 412, 255 N.E.2d 900, cert. denied (1970), 400 U.S. 941, 27 L.Ed.2d 244, 91 S.Ct. 232. There, the supreme court held that when the trial court had decided the issue of paternity, and had fixed the amount of support money defendant was to pay, "[t]his was the final determination of the ultimate rights of the parties put in issue by the complaint." (44 Ill.2d 412, 417.) Thus the time for filing the notice of appeal commenced to run from the date of the order fixing the amount of support. We took this motion to dismiss with the case.

• 1 Upon due consideration, the motion to dismiss is denied for these reasons:

(1) In our opinion, Deckard is in point and decides the issue.

(2) The first order entered by the trial court disposing of the issue of paternity also set the cause for hearing to determine "support and related matters." The able trial judge also found that the order in question was neither final nor appealable pending such a hearing. No such finding appears in the order of October 6 fixing support. This may well be construed as a finding that the order entered after the hearing to fix support would be final and appealable.

(3) The order entered October 6, 1982, fixed the amount of support money. This order is final in the sense that the other matters reserved therein by the trial court were simply collateral such as the fixing of attorney fees and costs and determination of a request for retroactive child support expenses during pregnancy.

(4) The pertinent statute provides that if the trial court finds defendant is the father of the child, then, at the time such judgment is entered and again at the time of entry of an order with respect to support, the trial court shall:

"advise the defendant of his right to appeal, of his right to request the clerk to prepare and file a notice of appeal, and of his right, if indigent, to be furnished, without cost to him with a transcript of the proceedings at his trial and with counsel of appeal." (Ill. Rev. Stat. 1981, ch. 40, par. 1366.)

In our opinion, by this declaration the legislature indicated that defendant should have the right to appeal after the issues of paternity and amount of support have been settled.

(5) In Virzint v. Beranek (1980), 85 Ill. App.3d 919, 407 N.E.2d 701, this court held that a determination of paternity is not in itself a final and appealable order and does not become final and appealable until an order for support is entered.

(6) In our opinion, the entry of the order of paternity and the determination of support are the two basic orders actually required for virtual completion of the case. The entry of these orders assures that the child will not lack for support. Additional matters such as attorney fees and costs and expenses, if any, during pregnancy may be determined in due course at a later date without interfering with the basic rights of the parties. In other words, a final order does not become interlocutory simply because it reserves "power over incidental matters not affecting the ultimate rights that have been ...


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