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11/30/88 Azure Lee Maller, Through v. Hen

November 30, 1988





AZURE LEE MALLER, through her Mother and Next Friend Gail

531 N.E.2d 1029, 176 Ill. App. 3d 987, 126 Ill. Dec. 402 1988.IL.1719

Appeal from the Circuit Court of Cook County; the Hon. Dennis Berkbigler, Judge, presiding.


PRESIDING JUSTICE WHITE delivered the opinion of the court. McNAMARA and FREEMAN, JJ., concur.


In 1981, Gail Maller filed an action to establish that Irwin Cohen was the father of her daughter, Azure, who was born on May 23, 1975. Because the Illinois Paternity Act (Ill. Rev. Stat. 1981, ch. 40, pars. 1351 through 1368) required such actions to be filed within two years of a child's birth, Gail's suit was dismissed.

The State of Tennessee had a similar two-year limitation on paternity actions. On June 6, 1983, the United States Supreme Court declared that Tennessee's statute was unconstitutional because it violated the equal protection clause of the fourteenth amendment. (Pickett v. Brown (1983), 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199.) The Supreme Court stated that the imposition of a two-year period within which a paternity suit must be brought restricts the right of certain illegitimate children to paternal support in a way that the identical right of legitimate children is not restricted. Applying the principles of Pickett, we concluded in Jude v. Morrissey (1983), 117 Ill. App. 3d 782, 454 N.E.2d 24, that the two-year limitations period of the Illinois Paternity Act was unconstitutional in that it denied certain illegitimate children the equal protection of the law. The Illinois legislature responded to these rulings by adopting the Illinois Parentage Act of 19841 (Ill. Rev. Stat. 1985, ch. 40, pars. 2501 through 2526), under which, for the first time, a child was afforded the right to bring an action to establish the father-child relationship until two years after reaching the age of majority. It is under the Parentage Act that, on July 11, 1986, Azure brought this action to establish that Cohen is her father. The Illinois Department of Public Aid , a public agency providing financial support to Azure, was granted leave to intervene. On February 23, 1987, the trial court dismissed the action and both Azure and IDPA appeal.

On appeal, Cohen maintains that the trial court properly dismissed Azure's action. Cohen argues that, pursuant to Illinois Supreme Court Rule 273 (107 Ill. 2d R. 273) and the doctrine of res judicata, Azure's action is barred by the dismissal of her mother's suit, even though the dismissal was based on a limitations statute later held unconstitutional. Cohen states correctly that Supreme Court Rule 273 makes a dismissal based on a general statute of limitations an adjudication upon the merits. (107 Ill. 2d R. 273; Muscare v. Voltz (1982), 107 Ill. App. 3d 841, 438 N.E.2d 620.)2 Further, under the doctrine of res judicata, a final judgment on the merits precludes all parties and their privies from bringing a new action relating to the same subject matter. However, we do not believe that the doctrine of res judicata should be applied in this context. It is clear that Azure was not a party to the action filed by Gail in 1981. Indeed, in 1981, Azure had no legal right of action against Cohen. Moreover, we refuse to hold that Azure was the privy of her mother, Gail, although their actions are based upon the same event: Azure's birth. It is the recognition of the difference of the interests of the unwed mother and those of the child in filing suit that is the basis for the Pickett and Jude rulings, and the basis for our opinion today. In Pickett, Justice Brennan, discussing the obstacles to filing a paternity action faced by an unwed mother, observed:

"The mother may experience financial difficulties caused not only by the child's birth, but also by a loss of income attributable to the need to care for the child. Moreover, 'continuing affection for the child's father, a desire to avoid disapproval of family and community, or the emotional strain and confusion that often attend the birth of an illegitimate child,' [citations] may inhibit a mother from filing a paternity suit on behalf of the child within two years after the child's birth. . . . [The] emotional strain experienced by a mother and her desire to avoid family or community disapproval 'may continue years after the child is born.'" (Pickett, 462 U.S. at 12-13, 76 L. Ed. 2d at 382-83, 103 S. Ct. at 2206.)

Barring Azure's action to adjudicate the father-child relationship because of the failure of her mother to file suit within the time provided in the Paternity Act would perpetuate the very restriction that was held unconstitutional.

Cohen argues that if we find no privity between Azure and her mother, "a defendant could be required to defend three separate paternity actions involving the same child. A jury could find for the defendant in an action brought by the mother. The child could then bring another action, contending that she was not bound by the verdict. Even if the child loses after an evidentiary hearing, IDPA could bring a third action because it would not be bound by the first two verdicts. Obviously, such a scenario is absurd." However, no such scenario need result from the resolution of the facts of this case. We do not have here a judgment against the mother based on a jury verdict, but a judgment based on the mother's failure to file her complaint in time. The issue here is whether, in that filing, she was in privity with Azure. The Paternity Act, under which Gail filed and Azure could not file, was premised on the presumption that the mother would act in the best interests of the child. (Cessna v. Montgomery (1976), 63 Ill. 2d 71, 344 N.E.2d 447.) The United States Supreme Court and this court have found this presumption to be inaccurate as applied to the timely filing of actions against putative fathers, and statutes predicated on that presumption were held unconstitutional. In the present case, it cannot be said that Gail was acting in Azure's best interest when Gail filed the paternity action four years late. In accord with the rationale of Pickett and Jude, we hold that, in Gail's filing of the action to establish that Cohen was the father of Azure, there was no privity between Gail and Azure.

Cohen relies upon Fite v. King (Tex. Ct. App. 1986), 718 S.W.2d 345, to support his position that dismissal of a time-barred paternity action precludes a second action. While it is true that the Fite court dismissed a mother's second paternity action, its ruling is consonant with our ruling in the instant case. The Fite court virtually invited the child to file an action on his own behalf, stating:

"This appeal is considered only in light of the existing parties. Both actions against King were brought in Fite's capacity as mother of the child; the child has not been represented in an individual capacity. We do not pass judgment on the child's rights, ...

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