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People Ex Rel. Aldworth v. Dutkanych

OPINION FILED MAY 21, 1986.

THE PEOPLE EX REL. DEBORAH ALDWORTH, APPELLEE,

v.

THOMAS DUTKANYCH, APPELLANT.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. Lewis V. Morgan, Judge, presiding.

JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

In a complaint filed in the circuit court of Du Page County pursuant to section 4 of the Paternity Act (Ill. Rev. Stat. 1981, ch. 40, par. 1354), the People, on behalf of Deborah Aldworth, relatrix, asked that the court find defendant, Thomas Dutkanych, to be the father of a child born out of wedlock to Deborah Aldworth. Defendant was held in contempt for wilful failure to comply with the circuit court's order concerning the taking and payment for blood tests. Defendant appealed, the appellate court affirmed (131 Ill. App.3d 1007), and we allowed defendant's petition for leave to appeal (94 Ill.2d R. 315(a)).

After the complaint was filed, the People moved that the parties and the child be ordered to submit to blood tests. Defendant filed a motion objecting to the blood tests, and the People moved to strike defendant's motion. After a hearing, the court entered an order allowing the People's motion to strike, and denying defendant's motion. The court ordered that the parties submit to blood tests and that defendant pay the costs of said tests. Defendant filed a motion to reconsider and vacate the court's order, or, in the alternative, to clarify its application. Defendant also filed a motion "objecting to defendant's payment of blood tests." These motions were denied. When defendant refused to submit himself to blood tests, a rule to show cause issued, and following a hearing, the court found him in contempt of court and sentenced him to a term of 60 days in the county jail. The circuit court stayed the order pending defendant's appeal.

Section 1 of the Act on Blood Tests to Determine Paternity provided:

"In a civil action in which paternity is a relevant fact, the court, upon its own initiative or upon motion of any party to the action, may order the mother, child and alleged father to submit to blood tests, including Human Leucocyte Antigen tests, to determine whether or not the man may be included or excluded as being the father of the child. The results of the tests shall be receivable in evidence in accordance with Section 4 of this Act. If the defendant refuses to submit to such tests, such fact shall not be disclosed upon the trial." Ill. Rev. Stat. 1981, ch. 40, par. 1401.

In a letter addressed to counsel directing the preparation of the order for the parties to submit to blood tests, the circuit court stated that the ordering of a blood test is a matter of discovery regulated by the supreme court rules. The court stated further that by reason of the amendment to the Act on Blood Tests to Determine Paternity by Public Act 81-1445, effective January 1, 1981, the court was authorized "to order the parties to submit to HLA blood testing."

The appellate court, in affirming, cited the amendment to section 1 of the Act on Blood Tests to Determine Paternity and the provisions of section 4(b) of that act concerning admissibility of the test results (Ill. Rev. Stat. 1981, ch. 40, pars. 1401, 1404(b)). It stated that the courts have traditionally found broad authority in Supreme Court Rule 215 (87 Ill.2d R. 215) to order blood tests and punish refusal with contempt citations. People ex rel. Yarn v. Yarn (1979), 73 Ill. App.3d 454; People ex rel. Coleman v. Ely (1979), 71 Ill. App.3d 701; Zavaleta v. Zavaleta (1976), 43 Ill. App.3d 1017.

Supreme Court Rule 215, in pertinent part, provides:

"(d) Impartial Medical Experts.

(1) Examination Before Trial. At a reasonable time in advance of the trial, the court may on its own motion, or that of any party, order an impartial physical or mental examination of a party whose mental or physical condition is in issue, when in the court's discretion it appears that such an examination will materially aid in the just determination of the case. * * *" 87 Ill.2d R. 215(d)(1).

Defendant contends that the Act on Blood Tests to Determine Paternity created no duty or obligation on the part of a defendant to submit to blood testing. He argues that the last sentence of section 1, which specifically prohibited the disclosure at trial of a defendant's refusal to submit to blood tests, indicates it was the intent of the General Assembly that such refusal be optional and discretionary on the defendant's part. (People ex rel. Hawthorne v. Hamilton (1973), 9 Ill. App.3d 551.) Defendant further argues that the determination whether a defendant in a paternity suit shall be compelled to submit to a blood test is not a matter of procedure or discovery governed by supreme court rule. He asserts that involved is the defendant's substantive right "which may be proscribed, regulated, limited or expanded by the legislature by and through a statutory enactment even if it determines that a defendant should have the discretion to refuse as a matter of public policy."

We first address defendant's contention that section 1 permitted defendant the option to refuse to submit to blood tests, without sanction or penalty for such refusal. Although this question has not yet been addressed by this court, it has several times been considered by the appellate court. (People ex rel. Yarn v. Yarn (1979), 73 Ill. App.3d 454; People ex rel. De Vos v. Laurin (1979), 73 Ill. App.3d 219; People ex rel. Coleman v. Ely (1979), 71 Ill. App.3d 701; Zavaleta v. Zavaleta (1976), 43 Ill. App.3d 1017; People ex rel. Hawthorne v. Hamilton (1973), 9 Ill. App.3d 551.) The opinions, however, provide limited guidance because they involved former statutes (Ill. Rev. Stat. 1971, ch. 106 3/4, pars. 1 through 7, 55) and, of course, antedated the amendment of the Act effective January 1, 1981.

Section 1 of the Act on Blood Tests to Determine Paternity provided for court-ordered blood tests but limited admissibility of the results to those which definitely excluded the defendant as the father of the child. (Ill. Rev. Stat. 1971, ch. 106 3/4, par. 1.) Section 5 of the Paternity Act provided that the accused had the right to submit to a blood test and that if the test showed that defendant was not the father, he was to be discharged. (Ill. Rev. Stat. 1971, ch. 106 3/4, par. 55.) Although repealed by the Illinois Parentage Act of 1984 (Pub. Act 83-1372, eff. July 1, 1985; 1984 Ill. Laws 2627, 2643), at the time of the proceedings in the circuit court, the provision of section 5 appeared in the Paternity Act (Ill. Rev. Stat. 1981, ch. 40, par. 1355). At that time, however, section 1 of the Act on Blood Tests to ...


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