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10/20/88 Akbar Majidi, v. Elaine Palmer Et Al.

October 20, 1988

AKBAR MAJIDI, PETITIONER-APPELLANT

v.

ELAINE PALMER ET AL., RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

530 N.E.2d 66, 175 Ill. App. 3d 679, 125 Ill. Dec. 148 1988.IL.1557

Appeal from the Circuit Court of De Kalb County; the Hon. Douglas Engel, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Petitioner, Akbar Majidi, appeals from a judgment of the circuit court of De Kalb County dismissing his complaint for declaratory judgment for parentage because it was filed after the applicable limitations period had expired. On appeal, petitioner contends that: (1) the statute of limitations in the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2508) (Act) is unconstitutional; (2) the trial court improperly applied the statute of limitations retroactively; and (3) a guardian ad litem should have been appointed to represent the minor child.

On January 7, 1983, respondent, Elaine Palmer, gave birth to Emily Palmer. Petitioner, the biological father of Emily, maintained contact with Elaine and Emily until June 4, 1986, when he agreed to end contact with Elaine as part of an agreement that Elaine drop battery charges against petitioner. Petitioner then filed a declaratory judgment action on March 2, 1987, seeking to establish himself as Emily's father, to obtain custody of Emily, and to obtain visitation if custody to him was not granted.

Respondent moved to dismiss the complaint on the ground that the suit was filed after the statute of limitations had expired. This motion was granted, and the court gave petitioner leave to amend. Petitioner filed an amended complaint, and respondent renewed her motion to dismiss. The trial court dismissed the amended complaint finding that count I was not commenced within the appropriate limitations period and count II, intentional infliction of emotional distress, failed to state a cause of action. Petitioner's motion to reconsider was denied, and petitioner appeals from the dismissal of count I only.

We turn initially to petitioner's contention that the Act's statute of limitations is unconstitutional. Petitioner first argues that the two-year statute of limitations applicable to an action brought on behalf of any person other than the child (Ill. Rev. Stat. 1987, ch. 40, par. 2508(a)(2)) violates his due process rights in that it was applied retroactively so as to deprive him of his opportunity to assert his constitutional right of parentage.

Due process generally does not prohibit the retroactive application of civil legislation unless the consequences of such application are particularly harsh and oppressive. (United States Trust Co. v. New Jersey (1977), 431 U.S. 1, 17 n.13, 52 L. Ed. 2d 92, 106 n.13, 97 S. Ct. 1505, 1515 n.13; see Usery v. Turner Elkhorn Mining Co. (1976), 428 U.S. 1, 17, 49 L. Ed. 2d 752, 767, 96 S. Ct. 2882, 2893.) Under Illinois law, a plaintiff whose claim would be otherwise barred by the retroactive application of a statute of limitations is given a reasonable time period in which to bring the claim. (Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 420, 490 N.E.2d 665.) Here, although petitioner's claim was barred upon the effective date of the Act, he still had a reasonable time period following the effective date of the Act in which to file his claim. Under these circumstances, the retroactive application of the statute of limitations did not result in a harsh and oppressive result and, therefore, did not deny petitioner due process.

Petitioner's second constitutional contention is that he has been denied equal protection of the laws because the statute sets out different limitations periods for different parties. (See Ill. Rev. Stat. 1987, ch. 40, pars. 2508(a)(1),(a)(2),(a)(3).) Specifically, petitioner argues that the difference in limitations periods between an action brought on behalf of or by a child and one brought by a father constitutes differing treatment of similarly situated parties.

Statutes are presumed constitutional, and all doubts are to be resolved in favor of upholding the validity of the law challenged. (People v. Bales (1985), 108 Ill. 2d 182, 188, 483 N.E.2d 517.) A court must apply different levels of scrutiny to a claim that a statute violates equal protection depending on the nature of the statutory classification allegedly discriminated against. (Clark v. Jeter (1988), 486 U.S. , , 100 L. Ed. 2d 465, 471, 108 S. Ct. 1910, 1914.) Classifications based on race or national origin, or affecting fundamental rights, are strictly scrutinized. (Clark, 486 U.S. at , 100 L. Ed. 2d at 471, 108 S. Ct. at 1914.) Classifications based on sex or illegitimacy are given an intermediate scrutiny. (Clark, 486 U.S. at , 100 L. Ed. 2d at 471, 108 S. Ct. at 1914.) Finally, any other statutory classification will be given minimal scrutiny. (Clark, 486 U.S. at , 100 L. Ed. 2d at 471, 108 S. Ct. at 1914.) To survive minimum scrutiny, a statutory classification need only be rationally related to a legitimate governmental interest. (Clark, 486 U.S. at , 100 L. Ed. 2d at 472, 108 S. Ct. at 1914; Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 371, 489 N.E.2d 1374.) The burden of establishing the unreasonableness of a classification lies with the person attacking its validity. (In re Belmont Fire Protection District (1986), 111 Ill. 2d 373, 380, 489 N.E.2d 1385.) Here, the statutory classification is not based on any of the protected classifications requiring any heightened scrutiny. Rather, it is comprised of persons, other than the illegitimate child, for whose benefit a paternity suit is instituted. Thus, we need only determine if the classification is rationally related to a legitimate governmental purpose.

The Act recognizes the differing interests of a parent and a child in having the parentage of the child determined. It further emphasizes "the right of every child to the physical, mental, emotional and monetary support of his or her parents." (Ill. Rev. Stat. 1987, ch. 40, par. 2501.1.) In doing so, it provides a reasonable period of time in which any interested party may institute a suit to determine parentage, but in light of the special concerns for the child itself, a statute of limitations of two years beyond the age of majority of the child was enacted. Such an extended statute of limitations best serves the interests of the child because it provides an opportunity to assert a claim on behalf of a child at anytime during his or her minority as well as enables the child to assert a claim on his or her own behalf within a reasonable time after reaching majority. (Cf. Clark, 486 U.S. at 100 L. Ed. 2d at 473, 108 S. Ct. at 1915.) On the other hand, the two-year statute of limitations which applies to petitioner is designed to provide repose for defendants and avoid stale claims. We, therefore, hold that the statutory classification in section 8 of the Act is rationally related to a legitimate governmental purpose and therefore does not violate equal protection. See In re Paternity of King (Ind. App. 1987), 514 N.E.2d 325.

Petitioner next argues that in allowing the retroactive application of the statute of limitations the trial court failed to consider the reasonableness of the time period in which petitioner filed his action. Generally, following the enactment of a statute of limitations which shortens a prior limitations period or provides one where one did not exist previously, a plaintiff whose cause of action arose prior to the date of enactment will be allowed a reasonable period of time in which to bring his action. (Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 420, 490 N.E.2d 665.) If under the new statute a reasonable time remains, the new period is applied, without more; but if a reasonable time does not remain, then one will be allowed. (Mega, ...


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