Appeal from the Circuit Court of Tazewell County; the Hon.
William J. Reardon, Judge, presiding.
PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 7, 1984.
This is a paternity action brought against the defendant, David Flieger, pursuant to the provisions of the Illinois Paternity Act. (Ill. Rev. Stat. 1981, ch. 40, par. 1354.) At the time the complaint was filed, the mother and child were, and are, residents of Tazewell County. The defendant, served with summons in the State of Colorado, filed a special and limited appearance praying that service of summons be quashed because the Illinois court lacked in personam jurisdiction.
In an order entered December 9, 1983, the circuit court of Tazewell County denied the defendant's motion to quash and found that this case presents a substantial question of law, the determination of which on appeal would materially advance the litigation. Thereafter, the defendant sought leave to appeal pursuant to Supreme Court Rule 308, which was granted. 87 Ill.2d R. 308.
The question presented is thus: whether in a paternity action, in which the mother and child are Illinois residents, an Illinois court has in personam jurisdiction over a defendant who was served with summons out of State and who is not a resident of Illinois.
In her complaint, the mother states that the alleged father of her child presently resides in Colorado and that she had sexual intercourse with him between December 1979 and January 1980 in New Jersey. She further states that her child was born in New Jersey but that she and her child are currently residents of Tazewell County, Illinois.
In its order denying the defendant's motion to quash, the court appears to indicate that its basis for finding in personam jurisdiction over the defendant is section 4 of the Illinois Paternity Act, which states, in pertinent part:
"The action may be filed in the county where the complainant may be so pregnant or delivered, or where the person accused may reside or be found, or in the county where the child resides." Ill. Rev. Stat. 1981, ch. 40, par. 1354.
That paragraph further contains a two-year statute of limitations provision which has recently been declared unconstitutional. (Pickett v. Brown (1983), 462 U.S. 1, 76 L.Ed.2d 372, 103 S.Ct. 2199; Jude v. Morrissey (1983), 117 Ill. App.3d 782, 454 N.E.2d 24.) Following the portion of the paragraph pertaining to the statute of limitations provision is this statement:
"The time any person so accused is absent from or conceals himself within the State shall not be computed." Ill. Rev. Stat. 1981, ch. 40, par. 1354.
• 1 The defendant has launched his attack against the statute on constitutional grounds, arguing that service of summons on him out of State in the instant paternity action has deprived him of due process because he has no "minimum contacts" with the State of Illinois (Kulko v. Superior Court of California (1978), 436 U.S. 84, 56 L.Ed.2d 132, 98 S.Ct. 1690) and because he has not submitted to the jurisdiction of the Illinois courts> by committing any of the acts enumerated in the long-arm statute. Ill. Rev. Stat. 1981, ch. 110, par. 2-209.
The State responds that the defendant had sufficient "minimum contacts" with the State of Illinois to subject him to the jurisdiction of the Illinois courts> under the long-arm statute. According to the State, the provision of the long-arm statute which applies to the defendant is:
"(2) The commission of a tortious act within this State." (Ill. Rev. Stat. 1981, ch. 110, par. 2-209 (a)(2).)
In support of its position, the State relies on Poindexter v. Willis (1967), 87 Ill. App.2d 213, 231 N.E.2d 1. In Poindexter, the complaint alleged that the mother, a resident of Madison County, Illinois, and the father, a resident of the State of Ohio, had intercourse in Champaign, Illinois. The defendant father, served with summons in Ohio, filed a motion challenging the Illinois court's jurisdiction over his person on the ground that he was not amenable to service in Ohio since he was not a resident of Illinois. In Poindexter, the court, indicating that the Illinois Paternity Act places a duty on the father of a child born out of wedlock whose paternity is established to support that child, liberally defined "tortious act" under the long-arm statute to include "any act committed in this state which involves a breach of duty to another and makes the one committing the act liable * * * in damages." (Poindexter v. Willis (1967), 87 Ill. App.2d 213, 217-18, 231 N.E.2d 1.) The court concluded that ...