Appeal from the Circuit Court of Cook County; the Hon. Martin
E. McDonough, Judge, presiding.
PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
On June 29, 1981, complainant Sharon Mehorczyk gave birth to a baby girl after a full term pregnancy. On September 13, 1981, she commenced this paternity action pursuant to the Illinois Paternity Act (Ill. Rev. Stat. 1981, ch. 40, par. 1351 et seq.), charging Rick W. Kelley with fathering the child born to her out of wedlock. Kelley entered his appearance and filed a jury demand on December 9, 1981.
After a jury trial, the court entered judgment against Mehorczyk and thereafter denied her motion for a new trial. From these orders complainant appeals charging that the trial court abused its discretion in: (1) allowing the action to proceed before a jury; (2) allowing into evidence irrelevant and prejudicial testimony; (3) wrongfully revising complainant's motion in limine, thus prejudicing her case; and (4) refusing three instructions submitted by complainant.
First we address the issue of the court's revision of complainant's motion in limine. On June 21, 1983, plaintiff filed a written motion in limine requesting an order by the court to preclude defendant from eliciting testimony and/or mentioning or commenting on the following:
"a. That the [complainant] was engaging in sexual relations with other men besides the defendant outside the period of possible conception August-October 1980;
b. That the [complainant] is a woman of loose moral character;
c. That the reputation of the [complainant], as regarding chastity, is very low in the community."
The trial court granted complainant's motion in limine. However, a day after the trial had commenced, the trial court, over complainant's objection, revised its order and allowed defendant to question complainant as to her relations with other men during the entire year of 1980.
Complainant maintains the trial court erred in allowing defendant's attorney to question her about her relations with other men outside the possible period of conception because that evidence had no probative value on the issue of paternity and was highly prejudicial to her right to a fair trial. We agree.
• 1 It has long been the law of this State that in paternity proceedings it is competent for the defendant to introduce evidence to show that the relatrix had intercourse with other men, but such evidence must be limited to the period of time within which, in the course of nature, the child could have been begotten. (People ex rel. Chaney v. Preston (1914), 188 Ill. App. 93; People ex rel. Bucaro v. Johnson (1972), 8 Ill. App.3d 618, 291 N.E.2d 9.) Evidence regarding the relatrix' sexual activity outside the period of conception had no rational bearing on the issue of paternity, and the trial court erred in permitting defense counsel to cross-examine her on that subject.
• 2 Similarly, the testimony of defendant's mother, Mrs. Sandra Kelley, regarding complainant's conduct and unchaste behavior in the community should have been excluded. Mrs. Kelley testified that she saw complainant engaging in intercourse with her son, the defendant, at Mrs. Kelley's home and that she told complainant to leave and never to return. She testified further:
"MRS. KELLEY: I saw her about a week or so later [after seeing her with her son]. Somebody was carrying her down the alley like she was a baby, they were kissing and laughing down the alley by the shop where I work.
MR. DIRKSEN (defendant's counsel): Did you see her any other time?
MRS. KELLEY: The very next day after that she was on the corner. I don't know if it was the same young man, kissing him on the corner, and ...