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09/15/88 In Re Marriage of Ritaray Adams

September 15, 1988

IN RE MARRIAGE OF RITARAY ADAMS, PETITIONER-APPELLEE, AND


Before reaching the merits of the motion for summary judgment, we must determine whether, as Ritaray contends, the order denying the motion for summary judgment is reviewable on appeal. The denial of a motion for summary judgment is not immediately appealable since it is not a final or appealable order. (Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App. 3d 1031, 1032.) It is also well established that, after an evidentiary hearing, a previous order denying a motion for summary judgment, even if improperly denied, is neither appealable nor reviewable upon appeal, since the ruling on the motion is merged into the trial result. Banwart v. Okesson (1980), 83 Ill. App. 3d 222.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

JOHN N. ADAMS, Respondent-Appellant

528 N.E.2d 1075, 174 Ill. App. 3d 595, 124 Ill. Dec. 184 1988.IL.1384

Appeal from the Circuit Court of Kane County; the Hon. Terrence Brady, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. INGLIS, J., concurs. JUSTINE DUNN, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

This is a case of first impression in Illinois.

Respondent, John Adams, appeals from that portion of the judgment dissolving his marriage to the petitioner, Ritaray Adams, requiring him to pay child support for a child conceived by Ritaray during the marriage by artificial insemination. This court must decide if the lack of the written consent of the husband of the woman who was artificially inseminated in order to conceive a child bars an action for support of such child so conceived since the written consent of such husband is required by statute.

The facts are as follows.

The parties were married on June 3, 1983. It was a second marriage for both of them. John had three children by his first marriage; Ritaray had no children with her first husband. At the time of the marriage, John, who was 32 years of age, was in the United States Navy (Navy) and had achieved the rank of chief warrant officer, fourth grade, and worked as a physician's assistant in the obstetrics and gynecology department at Great Lakes Naval Base. He had a bachelor of science degree from the University of Nebraska in premed and had received additional training in an intensive two-year program at the Naval School of Health Care Sciences. Ritaray was 19 years old at the time of the marriage and did not have a high school diploma. During the marriage, she worked as a waitress, counter clerk, and dining room manager of a restaurant.

During his first marriage, John had undergone a vasectomy, a fact which Ritaray was aware of prior to their marriage. Both before and after his marriage to Ritaray, John attempted to have the vasectomy surgically reversed, but both attempts were unsuccessful. John and Ritaray had had Discussions concerning having a family at various other times before and after their marriage, and John had promised Ritaray to look into alternative methods of having children. Thus, when the second attempt at surgical reversal of the vasectomy proved unsuccessful, they began considering other options available to them.

In October 1983, John was transferred to the naval base at Jacksonville, Florida. The parties then began to explore the options available to them for having a child. They looked into adoption and testicular biopsy (a procedure whereby the husband's sperm is checked to see if it can be extricated and used to impregnate the wife). Since both the procedures entailed significant delays, they were rejected, and the parties discussed a procedure known as artificial insemination donor . Although each party testified that the other had first mentioned the possibility of the AID procedure, they both agreed that they discussed it several times over the spring and summer of 1984. According to John, Ritaray became obsessed with the idea, repeatedly bringing up the subject and asking if he could find the name of someone who performed the procedure. John was given the name of Dr. Farrell, an infertility specialist at the University of Florida in Jacksonville.

On September 28, 1984, the parties had their initial interview with Dr. Farrell. They each filled out a fertility history. John told Dr. Farrell that they were there to learn more about artificial insemination. The doctor proceeded to discuss the information on the sheet, the method of choosing donors, and the procedure itself. Dr. Farrell also informed them that successful insemination usually required three attempts. According to both parties, at no time were consents ever discussed. At the Conclusion of the meeting, the doctor told them to go home and talk it over.

According to John, once he knew the details of the entire procedure, he knew he could not go through with it because it reminded him too much of his first wife's infidelity, with which he had lived for four years before finally deciding to end the marriage. He told Ritaray that he could not psychologically handle the situation, at least not without some counseling. Ritaray denied he ever mentioned counseling. John never spoke to Dr. Farrell again; he did not accompany Ritaray to the university hospital for any of her appointments, for the sonogram or the AID treatments; however, he did not call Dr. Farrell to object to the upcoming insemination.

On October 6, 1984, Ritaray flew to Illinois to visit her family. In a telephone conversation with John, two days later, she related to him how happy her family was about the upcoming AID procedure. When John protested and reminded her that they had made no decision yet, an argument ensued, and John hung up on her. Later, in another conversation, they argued again, and Ritaray advised him that she was going to go ahead and go through with the artificial insemination. However, according to Ritaray, she discussed the AID procedure with her sister, Cindy Duenos, and the manager of the Shawnee's Restaurant where she worked. After Ritaray returned to Florida, she made an appointment with Dr. Farrell to proceed with the insemination.

In preparation for the insemination procedure, Ritaray used a basal thermometer to chart her normal changes indicative of her fertile periods. The parties differed on who obtained the thermometer, each testifying the other had provided it. Ritaray testified that she did not understand the graph she was to use to record the temperature changes, and John had to show her how to mark the graph. However, John stated that he did not help her with the temperature chart other than to answer one question about a particular line. John saw the chart next to Ritaray's side of the bed but never looked at it.

During the same time period, John, who handled the family finances, became increasingly alarmed over money matters. By the spring of 1984, the parties were experiencing severe financial difficulties. They argued frequently over Ritaray's spending habits. Eventually, John took away all of her credit cards except her American Express card. Although he asked her not to use her credit card, she continued to charge large amounts. By fall 1984, their debts, excluding the mortgage on their mobile home, were over $30,000, and John began to think about filing for bankruptcy.

On the day before Thanksgiving, 1984, Ritaray informed John that she had an appointment with Dr. Farrell the following day for a sonogram to check the Disposition of the egg follicle; however, if she kept the appointment, she would lose her job at the Shawnee Restaurant. According to John, he reminded her that they were so deeply in debt, he had already contacted a bankruptcy attorney. He then began to cry, telling her he could not stand the thought of someone else's sperm being injected into her body. Ritaray said that she did not care, and then John asked who would support the child, and she said she would. John stormed out.

Ritaray's version of those same events was somewhat different. She stated that she thought she had arranged with the manager of the restaurant to keep her doctor's appointment, although she knew all employees were to be at work on Thanksgiving. When John and she talked that evening, Ritaray did not recall that they had an argument, that John had cried and begged her not to go, or that he had said that the marriage would be over if she went. According to Ritaray, her sister, Cindy, took her to the doctor's for the sonogram on Thanksgiving because John had other plans.

On Thanksgiving day, Ritaray went for the sonogram and was fired from her job. When she came home, she told John that the insemination would be done the following Monday, at which point the parties had another heated argument. Ritaray recalled her sister, Cindy, came for Sunday dinner, the night before the insemination, a fact which John did not recall. According to both Ritaray and Cindy, John remarked that Cindy would have to drive Ritaray to the doctor because the 1966 Volkswagen was not running. However, both parties testified that John usually drove the Volkswagen while Ritaray drove the 1984 Thunderbird, and according to John, both cars were in working order.

John testified that on that same Sunday night, he again told Ritaray he did not want her to have the insemination done, not only because of his psychological objection, but also because she had lost her job, and they could not afford to lose her income and have a child as well. However, both Ritaray and Cindy testified that John did not state that he did not approve, nor did he express anything negative but participated in the Discussion about the insemination and arranged for Ritaray's transportation.

According to John, from the time Ritaray had the artificial insemination, the relationship between them became quite cold, with conversation only when necessary. John slept on the couch.

On December 18, 1984, John received the results of Ritaray's pregnancy test confirming she was pregnant, and he asked to leave work early. On the way home, he bought beer and wine which he started to drink because he was depressed. When he told Ritaray the news, she began to call her family and friends with the news. John, who ordinarily drank very little, recalled talking to his mother but did not remember placing the call.

John testified that for the next nine months, the parties merely existed in the same household. Although he was very depressed and embarrassed about the bankruptcy, he did not seek counseling or tell anyone where he worked about the situation at home. He occupied his free time by working out at the base fitness center. John accompanied Ritaray to her Lamaze classes only after Ritaray began asking his superiors to accompany her because John refused to do so. However, Ritaray denied making such requests and stated that during her pregnancy, John treated her with concern and gave her much advice.

The parties filed a joint petition in bankruptcy in March 1985. Although over $32,750 indebtedness was discharged, more than $37,000 remained. According to John, the parties had no social life during this period, nor did he accompany Ritaray on any visits to her doctor. He admitted, however, that although the relationship was strained, he loved Ritaray at the time.

As the time for the birth approached, the parties discussed names for the baby, whether Ritaray should breast feed, and whether the child, which the sonogram had indicated would be a boy, should be circumcised. John explained, however, that Ritaray chose the name, and while he encouraged her to breast feed, it was simply because it was healthier. He recommended circumcision because of the lowered instance of penile cancer. When Ritaray was into labor, he drove her to the hospital because it would have taken 10 to 15 minutes for an ambulance or police car to get there. Ritaray had to have a Caesarean section, so John was not present for the actual birth. John was on his way to the recovery room when he happened to see the baby being taken to the nursery. Ritaray recalled, however, that John had handed her the baby in her room. Ritaray had John's name entered as the father on the birth certificate, and she filled out all the birth announcements.

John drove Ritaray and the baby home from the hospital. Once at home, Ritaray began suffering from an abscessed tooth and also had difficulty breast feeding. The baby was also fussy at times. John brought home dextrose, an infant supplement. On one occasion when the baby was choking, John picked up the baby and patted his back until the mucous was cleared. On another occasion, John could not sleep because the baby was fussy, so he brought the baby out to the couch, and he and the baby fell asleep together on the couch.

Six weeks after John David's (J.D.'s) birth, Ritaray took him to the base hospital for his post-natal checkup. A Navy department medical card was automatically issued for him because Ritaray presented her own Navy identification card. Immediately thereafter, John took Ritaray and J.D. to the airport where they boarded a flight for Illinois. Ritaray's sister, Cindy, paid for the tickets. According to Ritaray, John was under severe strain, and she left so that he could be alone and have some peace. She anticipated being gone for about a month, but no arrangements were made for their return.

On January 2, 1986, John came to Illinois to discuss the matter with Ritaray. Ritaray had sent John a Christmas gift, so he took her to the Navy exchange at Great Lakes, where she chose some clothing for herself and a car seat for J.D. They then drove to the parking lot of a restaurant to discuss their future. John told Ritaray he wanted a divorce. Ritaray initially rejected the idea, but later agreed when John told her he could not accept and live with what happened. John proposed sending her $50 on the 15th and 30th of each month, a sum which the parties labeled child support. This would be for a limited time. John also agreed to get financing for a new car for Ritaray. Ritaray told him what furnishings and personal items she wanted out of the trailer. John agreed to give her $500 for the bedroom set which was anchored to the floor of the mobile home.

John told Ritaray that he would have the agreement typed up by a notary public in Florida at a cost of $35 and then send it to Ritaray for her approval and signature. Thereafter, he would proceed to obtain a Florida no-contest divorce, an essentially pro se proceeding in which one of the parties presents a fully executed, notarized settlement agreement to the court, pays a $60 filing fee, and then appears before a Judge 21 days later, and the divorce is finalized. John also gave Ritaray $150 to pay an attorney in Illinois to review the document after it was drafted.

After John's return to Florida, he received a letter dated January 10, 1986, from Ritaray acknowledging their agreement but disagreeing with the time limitation provision for the child support. Instead, she proposed that John pay her $100 per month until J.D. was either 18 or had completed eight years of school, provided John carried all the medical insurance during the child's minority. She also agreed that if she remarried within the four-year period of their agreement on the car, she would take over all payments on the car only if he would agree to one of her alternatives on the duration of the child support. When the document was drafted, the child support provision was altered as Ritaray had requested. However, when John sent the drafted agreement back to her, she neither signed it nor sent it back.

In February 1986, John was advised by his income tax preparer that it would be better for the parties to file a joint income tax return than file separately. Ritaray agreed, and a joint income tax return showing John's three children from his first marriage and J.D. as dependents.

On March 11, 1987, John sent Ritaray a letter demanding that she either sign the proposed settlement agreement or contact him so that they could discuss the matter further. After receiving the letter, Ritaray filed her petition for dissolution of marriage. John was served in Florida. He obtained Illinois counsel and filed a response and an affirmative defense, stating that he was not the natural or biological father of J.D., that he never consented and strenuously objected to his wife's artificial insemination, and that he should not be held responsible for the care, custody, or support of the child.

At the outset of the proceedings in this case, the trial court ruled that in view of the nature of the matters raised by the pleadings, the issue of paternity would be decided before any of the other matters. The parties also stipulated that the Illinois law would be applied rather than Florida law. John's motion for summary judgment based upon the Illinois Parentage Act requirement of written consent (Ill. Rev. Stat. 1985, ch. 40, par. 1453) was denied. Prior to the commencement of trial, the court, sua sponte, appointed an attorney for the minor child, whose fees the parties were ordered to share. Following a hearing, the trial court determined John actually furnished consent for the AID procedure and, thus, was estopped from denying his legal parental responsibilities for J.D.

At the subsequent hearing on all the remaining issues, the following evidence was introduced: the parties' assets consisted of a mobile home, presently in storage, and various kitchen utensils and personal items John had already sent to Ritaray. The bankruptcy proceeding discharged approximately $32,000, of which $2,400 was John's premarital debt. John's net pay at the time of the hearing was $2,610. Thus, current bills which include $200 per child for each of his children by his first wife result in his paying out more than he takes home. He keeps up with his obligations by borrowing against a line of credit. Ritaray, on the other hand, was unemployed at the time of the hearing and had been living with her mother, paying her $50 per month. Her support comes from Public Aid and $100 from John per month.

Following all of the testimony and closing arguments, the trial court awarded sole care and custody of J.D. to Ritaray with reasonable visitation to John. John received the Subaru automobile, the mobile home, his entire pension, and all of the marital debts. As long as John remained in the military, he was responsible for all ordinary medical payments and one-half of any unpaid expenses.

On the issue of child support, the trial court stated that the base pay of $2,610, less $236 for the children's medical and dental payments, $600 for their support, and $550 for credit obligations, for a total deduction of $1,400, would leave a net income of $1,200 per month. The trial court then awarded $240 as child support, that figure being 20% of the guideline figure for one child as child support.

Following a hearing on the issue of attorney fees, both parties were ordered to pay their own attorney fees. The fees for the attorney for the child of $4,049.75 were divided between the parties, John paying 60% and Ritaray paying 40%. This appeal followed.

John raises the following issues on appeal: Whether the trial court abused its discretion in denying John's motion for summary judgment; whether the trial court abused its discretion in finding that the evidence established John's actual consent to Ritaray's artificial insemination; whether the award of child support constituted an abuse of discretion; and whether the trial court abused its discretion in appointing an ...


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