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09/27/88 Linsey Renee Simcox, By v. Christopher Allen Simcox

September 27, 1988

LINSEY RENEE SIMCOX, BY AND THROUGH HER NATURAL GUARDIAN, DEBORAH ANN DEAR, PLAINTIFF-APPELLANT

v.

CHRISTOPHER ALLEN SIMCOX, DEFENDANT-APPELLEE (JEFFREY MITCHELL DEAR, DEFENDANT-APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

529 N.E.2d 1032, 175 Ill. App. 3d 473, 124 Ill. Dec. 915 1988.IL.1449

Appeal from the Circuit Court of Cook County; the Hon. Adolphus Rivers, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. HARTMAN, P.J., and SCARIANO, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

This appeal arises out of the dismissal of a petition to declare paternity brought by a four-year-old minor, Linsey Renee Simcox (Linsey), through her mother and natural guardian, Deborah Ann Dear (Deborah), under the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2501 et seq.). Christopher Allen Simcox (Christopher) is the "presumed" father because he was married to Deborah at the time of Linsey's birth and for several years prior thereto. Defendant Jeffrey Mitchell Dear (Jeffrey) is the alleged biological father (the putative father).

Christopher, the presumed father, filed a motion to dismiss the petition pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), to which petitioner Linsey responded. The trial court dismissed the petition with prejudice on the theory of res judicata and collateral estoppel because it concluded that the paternity of Linsey was resolved in the judgment of dissolution of the marriage of Deborah and Christopher. It further concluded that both Linsey, the child, and Jeffrey, the alleged biological father, are estopped from initiating and maintaining a paternity action. Petitioner Linsey appeals and defendant Jeffrey joins in her appeal.

The following ultimate facts are established by the allegations of the petition, motion to dismiss, and response thereto.

Deborah and Christopher were married on June 7, 1980, in Marion, Illinois. They lived in Carbondale. In late April 1982, Christopher vacated the marital residence and established a separate residence. At about the same time, Jeffrey allegedly engaged in sexual intercourse with Deborah and she became pregnant. In July 1982, Christopher resumed residency with Deborah. Deborah gave birth to Linsey on January 24, 1983.

Deborah filed for divorce in late 1983 and an uncontested judgment of dissolution was entered on March 22, 1984. That judgment, which incorporates a marital settlement agreement, recites:

"4. That born to the parties during their marriage was one minor child, namely, Linsey Renee Simcox, born January 23, 1983; that no children were adopted by the parties during their marriage; and that plaintiff is not presently pregnant."

The agreement provided that Deborah would have custody of Linsey, subject to Christopher's rights of reasonable visitation, and Christopher was directed to pay $150 per month as child support.

On November 8, 1986, Deborah married Jeffrey, the alleged biological father. On February 5, 1987, Linsey, by her mother and natural guardian, Deborah, brought this paternity action against Christopher and Jeffrey pursuant to the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2501 et seq.). Linsey sought: (1) a determination of father and child relationship between Jeffrey and Linsey; (2) declaration of the "non-existence of the parent and child relationship" between Christopher and Linsey; (3) a change in Linsey's last name to Dear (Jeffrey's last name); (4) a new birth certificate; (5) joint custody in Deborah and Jeffrey; and (6) reservation of Jeffrey's support obligation.

The child's verified petition does not allege facts concerning a blood test. However, in her response to the motion to dismiss, she alleges that blood tests were performed shortly before filing the petition. Those tests ...


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