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12/17/87 Panagiotis Sakellariadis, v. James Spanos

December 17, 1987

PANAGIOTIS SAKELLARIADIS, PLAINTIFF-APPELLANT

v.

JAMES SPANOS, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

517 N.E.2d 324, 163 Ill. App. 3d 1084, 115 Ill. Dec. 122 1987.IL.1865

Appeal from the Circuit Court of Lake County; the Hon. Charles F. Scott, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Plaintiff, Panagiotis Sakellariadis, appeals from a judgment of the circuit court which dismissed his complaint against defendant, James Spanos, on the ground that the action was barred by the statute of limitations. Plaintiff contends that the trial court erred in applying the two-year limitations period contained in the Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2508), rather than the five-year general provision of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-205). Alternatively, plaintiff contends that the court erred in finding that he did not file his complaint within a reasonable time after the effective date of the Parentage Act, under which the time within which this action was required to be commenced was shortened.

In this action, plaintiff sought to establish that he was the father of the child, George J. Spanos, who was given birth to by Nancy Spanos on April 28, 1983, while she was married to defendant, James Spanos. Thereafter, on November 9, 1985, Nancy Spanos was killed in an automobile accident. Plaintiff filed this case on July 9, 1986, as a declaratory judgment action (see In re Petition of Sullivan (1985), 134 Ill. App. 3d 455, 459, 480 N.E.2d 1283) which was subsequently amended to a cause of action brought pursuant to section 7 of the Parentage Act. Ill. Rev. Stat. 1985, ch. 40, par. 2507(a).

The complaint alleged, inter alia, that Nancy and James Spanos were married, but living apart, from March through August 1982, during which time plaintiff and Nancy Spanos engaged in sexual relations, and that the child, George J. Spanos, was plaintiff's son.

Defendant moved to dismiss the complaint on the ground that the action was barred by section 8(2) of the Parentage Act (Ill. Rev. Stat. 1985, ch. 40, par. 2508(2)) as it was not brought within two years of the child's birth as required by that act, which became effective July 1, 1985. Plaintiff responded that, at the time of the child's birth, the former Paternity Act (Ill. Rev. Stat. 1985, ch. 40, par. 1351 et seq., repealed Jan. 1, 1984) was in effect and did not contain a statute of limitations and, therefore, the five-year limitation period of section 13-205 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-205) applied to this action. On December 9, 1986, plaintiff filed a supporting affidavit in the case in which he stated, inter alia, that he had discussed the paternity of the child with Nancy Spanos prior to her death and had visited the child on a number of occasions. Nancy Spanos was unwilling to obtain a divorce from defendant, however, saying that she "was going to try to make a go of her marriage because of the child." Plaintiff stated that he offered Nancy Spanos financial help, but she refused it and that "I thought about doing something to establish that I was George's father, but Nancy would have been very much against this." After Nancy Spanos' death, plaintiff stated that he made repeated efforts to meet with defendant in order to make some kind of visitation arrangements, but was rebuffed. On the same day that plaintiff filed his affidavit, defendant filed a motion to strike it; however, no ruling on the motion to strike was ever obtained from the circuit court.

The circuit court found that the limitations term of the Parentage Act applied to this action and that plaintiff had a reasonable time after the effective date of the Parentage Act in which to commence his action for paternity. The court set a date for an evidentiary hearing on the issue of whether July 9, 1986, when this action was commenced, was within a reasonable time of the July 1, 1985, effective date of the Act.

At the hearing held on January 20, 1987, defendant called plaintiff as an adverse witness and examined him as to the statements plaintiff had made in his affidavit. Plaintiff testified that he had sexual relations with Nancy Spanos between March or April and August of 1982. He said that, when he first met Nancy Spanos, she had told him she was divorced but in August 1982 informed him that had not yet occurred. Plaintiff testified that he first learned that he might be the father of her child in October 1982, and that he always thought about doing something to establish that he was the child's father; he felt strongly about doing so after Nancy Spanos died. Plaintiff described attempts he had made between January 1986 and May 1986 to discuss the parentage of the child with defendant, but that defendant had refused to talk with him. Plaintiff knew that from November 1985 through January 1986 defendant was living in a motel in Janesville, Wisconsin, where defendant owned a restaurant, and stated that on May 1, 1986, he went there to see defendant but was told that he no longer owned the restaurant. Plaintiff stated that in the first week of May 1986, he saw his attorney concerning the paternity matter for the first time.

Plaintiff called defendant's stepbrother, Steve Spanos, as a witness who testified that in November 1985 he was working at a restaurant with defendant in Janesville, Wisconsin, where he and defendant lived at a motel. Steve Spanos stated that he lived in the motel until the first part of December 1985, when defendant asked him to leave, and that defendant lived there until April 1986. The witness also testified that defendant lived in a house in Janesville with a waitress in April 1986, and that Nancy Spanos stayed at her parents' house in Waukegan, Illinois. While defendant was living at the motel in Wisconsin, defendant traveled to Waukegan two or three times a week and kept his clothing at Nancy's parents' house.

After hearing the evidence, the trial court found that the delay of one year and eight days between the effective date of the limitations statute and the filing of the complaint was an unreasonable period of time. The court further rejected plaintiff's argument that section 8(b) of the Parentage Act (Ill. Rev. Stat. 1985, ch. 40, par. 2508(b)) tolled the running of the reasonable time period within which to commence the action while defendant lived in Wisconsin as defendant was not subject to service of process at that time. The trial court dismissed the complaint as not timely filed, and plaintiff appeals.

We note that this court has not been provided with a properly certified report of proceedings of the January 20, 1987, hearing. Plaintiff tendered to the clerk of this court a report of proceedings for that hearing which was neither certified by the trial Judge nor stipulated to by the parties, as is required by Supreme Court Rule 323(b) (107 Ill. 2d R. 323(b)). Plaintiff was ...


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