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02/09/89 In Re Paternity of Mariah Dawn Smith (Mariah Dawn Smith

February 9, 1989

IN RE PATERNITY OF MARIAH DAWN SMITH (MARIAH DAWN SMITH, A


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

Minor by Janice Smith, her Mother and Next Friend and

Guardian, Petitioner-Appellant and

Cross-Appellee, v.

Mike Barbre, Respondent-Appellee and Cross-Appellant)

534 N.E.2d 669, 179 Ill. App. 3d 473, 128 Ill. Dec. 487 1989.IL.164

Appeal from the Circuit Court of White County; the Hon. James V. Hill, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. WELCH, P.J., and HOWERTON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

The petitioner, Janice Smith, as guardian for her daughter Mariah Smith, appeals and the respondent, Mike Barbre, cross-appeals from a judgment of the circuit court of White County. On May 11, 1987, the circuit court granted the petitioner's motion for summary judgment and found paternity of the respondent in the child, Mariah Smith, born on June 13, 1972. The court heard the remaining issues on May 11 and 12, 1987, and entered a judgment on those issues on September 1, 1987. As we find that the trial court erred in granting the petitioner's motion for summary judgment, we reverse the court's judgment and remand the cause.

The respondent resides in Carmi, Illinois, and is employed as a farmer and as a jailer for the White County sheriff. He has also worked at various times for McKnight Motors, the Bargain Barn, the Vintage Lounge, and for the township road commissioner. The petitioner also resides in Carmi and has worked in the medical records department at Wabash General Hospital in Mt. Carmel, Illinois, since September of 1986. Both parties were 41 years old at the time of the hearing, and both have known each other since a very young age.

At the time of the conception of Mariah, the petitioner was married to Kenneth Smith. The petitioner testified in her deposition that she first had sexual intercourse with the respondent in June of 1971. The petitioner stated that Mariah was conceived when she had intercourse with the respondent on his birthday in September of 1971, and that she gave birth to Mariah nine months later, in June of 1972.

The petitioner stated that the respondent visited her house about eight months after Mariah's birth in June of 1972. At that time, the petitioner discussed Mariah with him, and the respondent told the petitioner that he did not believe that Mariah was his child. The petitioner continued to have an intimate relationship with the respondent after the birth of Mariah.

The petitioner stated that she often spoke to the respondent about assisting with payments for food and clothing for the child, but failed to receive any support. In 1977, when Mariah was five years old, the petitioner and the respondent argued and did not see again each other for three years. The petitioner testified that she last asked the ...


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