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In Re Petition of Sullivan

OPINION FILED JUNE 28, 1985.

IN RE PETITION OF PETER THOMAS SULLIVAN III (PETER THOMAS SULLIVAN III, PLAINTIFF-APPELLEE,

v.

ROBERTA SUE MCGAW, DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Winnebago County; the Hon. John Nielsen, Judge, presiding.

JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 8, 1985.

This somewhat novel litigation began on December 2, 1983, when plaintiff filed a petition against defendant in which he alleged that he was the father of Margaret Loren McGaw, who was born on January 5, 1983, and that defendant was the child's mother. Plaintiff sought a declaration that he was the natural father of Margaret and orders setting forth (1) a visitation schedule for himself and his daughter and (2) appropriate support for the child. In addition, plaintiff requested that defendant be required to pay his costs. On December 14, 1983, the court permitted plaintiff to amend his petition on its face to indicate that it was being brought pursuant to the "Declaratory Judgment Act" (Ill. Rev. Stat. 1983, ch. 110, par. 2-701).

Defendant filed an answer in which, among other things, she admitted that she was the mother of Margaret Loren McGaw and that the child was born on January 5, 1983, but denied that plaintiff was the father. Also, in other pleadings, she again denied that plaintiff was the father of the child.

Plaintiff filed a motion for blood tests pursuant to the Act on Blood Tests to Determine Paternity (Ill. Rev. Stat. 1983, ch. 40, par. 1401 et seq.). The trial court granted this motion. Plaintiff then filed a motion under section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-611) for reasonable expenses and attorney fees he incurred in this proceeding as a result of defendant's untrue pleadings. Approximately three months later, he filed a similar motion.

Defendant filed a motion to withdraw her answer to the petition and a motion to dismiss plaintiff's action for declaratory judgment. The trial court granted the motion to withdraw, but denied the motion to dismiss. Another motion to dismiss was likewise denied, and defendant then filed an answer substantially the same as her original answer.

Plaintiff filed a motion for summary judgment which included the results of the blood tests and the affidavit of Oscar Behzad, the director of laboratories for the American Red Cross Blood Services. Based upon the results of the blood tests and a reasonable degree of scientific certainty, Behzad's affidavit concluded that plaintiff, not William Koulis, was the natural father of Margaret Loren McGaw.

Subsequently, defendant filed a counterpetition in which she acknowledged that, in light of the results of the blood tests, plaintiff was the father of the minor child, and requested that the court order plaintiff to pay the medical and attendant hospital expenses she had incurred as a result of the birth of the child, child support, and the fees of counsel and costs.

In an order filed on March 16, 1984, the court decreed, based on the petition and counterpetition, that plaintiff was the father of the child, and that plaintiff was entitled to visitation with his daughter.

On April 12, 1984, a bench trial commenced concerning the remaining issues.

The court entered an order on April 27, 1984, resolving the issues not adjudicated in its earlier order. That order awarded defendant custody of the minor child; granted plaintiff reasonable and seasonal visitation; ordered plaintiff to pay child support; required the parties to amend their daughter's birth certificate to reflect that plaintiff was her father, changing the child's last name from McGaw to Sullivan, and that henceforth the child shall be named Margaret Loren Sullivan; decreed that defendant was to pay the $1,358.20 in costs and expenses plaintiff had incurred in this cause; and that each party was to pay his or her own fees of counsel.

Defendant filed a motion for reconsideration, which the trial court denied on June 20, 1984. Defendant filed timely notice of appeal, and plaintiff filed notice of cross-appeal.

Defendant argues on appeal that the trial court erred: (1) by not requiring plaintiff to pay her maternity expenses; (2) by not ordering plaintiff to pay her attorney fees and by requiring her to pay plaintiff's costs and expenses; and (3) by ordering that the child's birth certificate be changed or amended to reflect that her surname was Sullivan and by declaring that henceforth she shall be named Margaret Loren Sullivan. In his cross-appeal, plaintiff argues that the trial court abused its discretion when it denied his request, under section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-611), that defendant pay his attorney fees. We consider these issues in order.

I. DEFENDANT'S MATERNITY AND PREGNANCY-RELATED EXPENSES

• 1 Defendant's first contention is that section 3 of the Paternity Act (Ill. Rev. Stat. 1983, ch. 40, par. 1353) mandates that a father whose paternity has been established must pay the maternity expenses of the mother, apparently interpreting the language of this section as mandatory in all instances. Accordingly, she asserts that the trial court erred when it failed to require plaintiff to pay the expenses she incurred as a result of her pregnancy and the birth of the child.

Although the court's order does not provide expressly that plaintiff was not required to pay the defendant's pregnancy-related expenses, the trial judge clearly intended this result when he stated at trial, in response to defense counsel's query ...


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