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03/16/87 Norman Alan Statham, v. Karen Domyan Et Al.

March 16, 1987

NORMAN ALAN STATHAM, PLAINTIFF-APPELLANT

v.

KAREN DOMYAN ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

506 N.E.2d 613, 153 Ill. App. 3d 1003, 106 Ill. Dec. 813 1987.IL.313

Appeal from the Circuit Court of St. Clair County; the Hon. Richard A. Hudlin IV, Judge, presiding.

APPELLATE Judges:

Justice Jones delivered the opinion of the court. Karns, P.J., and Welch, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JONES

Plaintiff, Norman Alan Statham, appeals an order of the trial court that granted in part, but also denied in part, his petition for an injunction to restrain defendant, Karen Domyan, from using the name Domyan as the surname of their son, Mark Alan Statham. Appeal is also taken from that portion of the same order that denied Norman's request for extended visitation with Mark. We affirm.

The child, Mark Alan, was born on July 19, 1972. The parents, the parties to this action, were not then, and never have been, married, although at the time of the birth they were living together. Approximately five months after the child was born, defendant left, taking Mark, and moved in with her mother. Sometime in 1973 Karen, again taking Mark, then about one year old, began living with Robert Domyan. In March 1974 defendant and Domyan were married.

Plaintiff's visitation with Mark prior to 1977 was only occasional and apparently was discouraged by defendant. In 1977 plaintiff filed suit to have himself declared to be the father of Mark and to obtain visitation rights. Pursuant to stipulation of the parties, an order was entered on February 9, 1977, declaring plaintiff's paternity and fixing visitation on alternate Saturdays between 10 a.m. and 5 p.m. After this order plaintiff complained that visitation rights were being denied him, and he filed a petition for a rule upon defendant to show cause why she should not be held in contempt of court. In January 1978 an order was entered that directed defendant to encourage Mark to make the visitations with plaintiff.

In 1977 defendant enrolled Mark in kindergarten at Bluff View School under the surname of Domyan. When plaintiff learned of this he went to the school with a copy of Mark's birth certificate and had his name changed to Statham. Even so, it appears that Mark continued to use the name Domyan with his friends and in all unofficial relationships. After the third grade, defendant transferred Mark to another school and again enrolled him with the surname of Domyan.

In 1979 plaintiff was arrested and prosecuted for the shooting of another at the VFW hall in East St. Louis. As a result of his conviction for this incident, plaintiff went to prison in September 1980 for 15 months. Despite his requests, defendant refused to take Mark to the prison to visit plaintiff. According to defendant, plaintiff had no visitation with Mark from December 1979 until July 1984. Plaintiff testified that after his release from prison, he attempted to renew visitation by telephoning and sending letters to defendant, but to no avail. In April 1983 plaintiff filed another petition for a rule upon defendant to show cause why she should not be held in contempt for denying visitation and a petition seeking enlargement of visitation rights. Defendant filed a counterpetition for increased support payments from plaintiff and for a judgment upon plaintiff's arrearages. Following a hearing, the court entered an order on July 25, 1984, that increased support payments to $45 per week and granted judgment against plaintiff for $4,925 for support arrearages, payable at the rate of $12.50 per week. The order also provided in detail for plaintiff's visitation with Mark on alternate Saturdays, with directions that plaintiff was to take Mark to any of his organizational activities that should coincide with the visitation periods.

On October 17, 1984, plaintiff filed a petition for an injunction. It alleged that plaintiff is the father of Mark, that Mark's birth certificate shows plaintiff as his father, that plaintiff is regularly paying child support for Mark and is making regular payments upon the arrearage. It further alleged that Robert Domyan has never adopted Mark and that defendant, Mark's mother, has used and continues to use the surname of Domyan upon all official documents and records pertaining to Mark. The prayer of the petition was for an injunction to issue against defendant restraining her from changing Mark's surname to Domyan in any official records, including school, medical, or hospital records or membership applications, and further ordering defendant to cause any existing official records to be changed to reflect Mark's surname to be Statham.

The trial court conducted a thorough hearing on the petition for an injunction as well as another petition for a rule upon defendant to show cause why she should not be held in contempt of court for denying plaintiff his rights of visitation. Mark was 12 1/2 years old at the time and was interviewed in chambers by the court in the presence of the attorneys for both parties. At the hearing the plaintiff testified that he was living in Caseyville with a woman to whom he was not married. He related his attempts at visitation from the time of Mark's birth and his petitions for court help in obtaining visitation privileges. He stated that he was currently exercising his visitation rights with Mark on a regular basis and that he took Mark to various activities, including horseback riding, barbecues, ball games, Six Flags, and any other places Mark wanted to go. He stated he got along very well with Mark and was anxious to establish and maintain the father-son relationship. He also stated that he was current in paying the court-ordered child support and in paying on the judgment for the arrearage. He admitted that he had had Mark in the VFW with him on the night in 1979 that he had shot another man. He also admitted that since 1981 Mark has not referred to him as "Dad," although previous to that time he had done so.

Defendant testified to the irregularity of plaintiff's visitation with Mark prior to July 1984. Since then, however, she agreed that the visitations have gone fine and that plaintiff was exercising his visitation privileges regularly. Defendant further testified that other than the birth certificate and the enrollment at Bluff school, Mark has always gone by the name of Domyan. Mark is known as Mark Domyan on his physical education records, book rental records, school term papers, school records, medical and dental records, church records, insurance records, among the members of the Domyan family, and in the Boy Scouts. He has never known any other name than Domyan.

At the interview in chambers, which was made a part of the transcript, Mark indicated that he knew that plaintiff was his father. He related that he had missed some of his activities due to visitation with the plaintiff. When the court asked Mark whether he wanted more time to visit with plaintiff, he replied, "Not more time, I don't think so." He told the court that he preferred for his mother to take him to recreational events because he feels more comfortable with her. He stated that his friends called him Mark Domyan and it would "create a problem" if he went by any other name. When the court asked him what Mark called the ...


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