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05/02/88 In Re Marriage of Linda E. Duffey

May 2, 1988

IN RE MARRIAGE OF LINDA E. DUFFEY, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

DANNY J. DUFFEY, Respondent-Appellant

523 N.E.2d 371, 168 Ill. App. 3d 1086, 119 Ill. Dec. 763 1988.IL.649

Appeal from the Circuit Court of Rock Island County; the Hon. Edward Keefe, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE STOUDER delivered the opinion of the court. SCOTT and WOMBACHER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

The respondent, Danny Duffey, appeals the decision of the trial court which denied his petition for relief filed pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401). The respondent's post-judgment petition challenges the trial court's award of child support awarded in a dissolution proceeding.

On appeal respondent contends: (1) that the trial court lacked subject matter jurisdiction to award child support because there was not a parent-child relationship between himself and the minor child; and (2) that the trial court abused its discretion in denying the respondent's petition for relief from judgment.

Linda and Danny Duffey met in June of 1980 and were married on September 4, 1981. Linda Duffey filed a petition for dissolution of marriage on March 17, 1987. The petition for dissolution of marriage alleges that one child was born to the parties. However, the record indicates that the child was born on January 13, 1978, before the parties had met.

The trial court issued a judgment for dissolution which incorporated the parties' marital settlement agreement. In the agreement Danny Duffey agreed to pay child support in the amount of $25 per week. Later, Linda Duffey filed a petition to increase the support and the respondent filed the section 2 -- 1401 petition for relief from judgment.

Duffey now contends that the trial court lacks subject matter jurisdiction to award child support without the requisite parent-child relationship.

Subject matter jurisdiction is defined as the power of a particular court to hear the type of case that is then before it. (Alfaro v. Meagher (1975), 27 Ill. App. 3d 292, 326 N.E.2d 545.) Generally, jurisdiction of a court over a cause depends on the state of facts at the time the action is brought. Chrastka v. Chrastka (1971), 2 Ill. App. 3d 722, 277 N.E.2d 729.

In the instant case the record indicates that the trial court was presented with sufficient evidence in the dissolution proceeding from which it could find that a parent-child relationship existed between Danny Duffey and the minor child. The evidence consisted of: (1) a verified petition for dissolution of marriage alleging the birth of one child to the parties; (2) the respondent's signed appearance and consent for immediate hearing acknowledging receipt of the petition, waiving any right to file responsive pleadings and consenting to the entry of an order incorporating the terms of the separation agreement; (3) the agreement signed by the respondent allowing for child support and other benefits for the minor child; and (4) petitioner's testimony that there was one child of the marriage. In addition Danny Duffey admits that he amended the minor child's birth certificate to add himself as the natural father.

The respondent's assertion that he is not the natural or adoptive father are contrary to his prior conduct and participation in the dissolution proceeding. The evidence presented supports the trial court's jurisdictional basis ...


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