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03/27/87 the People Ex Rel. Audrey v. Francis Harvey

March 27, 1987

THE PEOPLE EX REL. AUDREY TODD, PLAINTIFF-APPELLEE

v.

FRANCIS HARVEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

507 N.E.2d 110, 154 Ill. App. 3d 296, 107 Ill. Dec. 446 1987.IL.377

Appeal from the Circuit Court of Cook County; the Hon. Richard S. Kelly, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

In this interlocutory appeal, brought pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308), defendant, Francis Harvey, contends that the circuit court of Cook County erred in denying his motion to dismiss plaintiff Audrey Todd's paternity action. The principal issue on appeal is the manner in which the Illinois Parentage Act of 1984 (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 2501 et seq.) is to be applied to paternity actions filed prior to the effective date of that Act.

We affirm the circuit court's denial of defendant's motion to dismiss, but we do so based on a construction of the Act which differs from that of the circuit court.

This action was filed on August 10, 1983, by the State acting on the relation of complainant Audrey Todd. Audrey alleged that defendant, Francis Harvey, was the father of her son, Phillip Harvey Todd, born to her on August 24, 1979, and that defendant was liable for the support, education, maintenance, and welfare of the child as well as Audrey's reasonable expenses arising from her pregnancy, confinement, and recovery. In addition to payment for these items, Audrey sought a declaration that defendant was the father of her child.

Audrey's action was brought under the authority of the Illinois Paternity Act of 1957 (Ill. Rev. Stat. 1983, ch. 40, pars. 1351 through 1968, repealed.) Under that statutory scheme, paternity actions could be brought only upon the filing of a complaint by the mother or by the Illinois Department of Public Aid in behalf of a minor child receiving public aid. The State's Attorneys of the various Illinois counties were also authorized to file a complaint on behalf of the mother at her request. All such actions were required to be brought within two years from the birth of the child. Ill. Rev. Stat. 1983, ch. 40, par. 1354.

On August 31, 1983, less than one month after this action was filed, the two-year limitation provision was found to be unconstitutional. (Jude v. Morrissey (1983), 117 Ill. App. 3d 782, 454 N.E.2d 24.) On May 1, 1985, the defendant moved to dismiss this action based, inter alia, on the statute of limitations contained in a newly enacted paternity act, the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2501 et seq.). Because the Act was not effective until July 1, 1985, the circuit court denied the motion but permitted defendant to renew it after the Act's effective date.

Defendant's new motion, filed on July 8, 1985, again sought dismissal of the action pursuant to the limitations provisions contained in section 8 of the Act. That section provides in pertinent part:

"Sec. 8. Statute of Limitations.

(a)(1) An action brought by or on behalf of a child shall be barred if brought later than 2 years after the child reaches the age of majority; however, if the action on behalf of the child is brought by a public agency, it shall be barred 2 years after the agency has ceased to provide assistance to the child.

(2) An action brought on behalf of any person other than the child shall be barred if brought later than 2 years after the birth of the child." ...


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