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04/10/89 Stephen Eckberg, v. Frank Benso Et Al.

April 10, 1989

STEPHEN ECKBERG, PETITIONER-APPELLANT

v.

FRANK BENSO ET AL., RESPONDENTS-APPELLEES



Before turning to whether the laches doctrine should apply to the instant case, we note that the trial court did not directly address the laches issue or expressly base its dismissal on laches grounds. This did not preclude, though, the appellate court from addressing the laches issue in In re Adoption of Miller (1982), 106 Ill. App. 3d 1025, 436 N.E.2d 611. There, the court held that it was not confined to the precise reasons given by the trial court in its dismissal of the natural father's attack on the adoption judgment. It held that it could consider the adoptive parents' laches claim where the trial court did taken into account facts upon which a findings of laches could have been made. (In re Adoption of Miller, 106 Ill. App. 3d at 1031, 436 N.E.2d at 615.) Similar to In re Adoption of Miller, the trial court in the instant case heard extensive evidence concerning plaintiff's diligence in asserting his rights. Thus, we are likewise not precluded from addressing the laches issue.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

537 N.E.2d 967, 182 Ill. App. 3d 126, 130 Ill. Dec. 638 1989.IL.496

Appeal from the Circuit Court of Cook County; the Hon. Eugene L. Wachowski, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

Stephen Eckberg (petitioner) appeals the trial court's denial of his petition to vacate the adoption of his two sons by their mother, Linda Benso, and her husband, Frank Benso (respondents). Three issues are presented for our review: (1) whether petitioner should be precluded by laches from challenging the jurisdiction of the adoption court; (2) whether the trial court erred in finding that the adoption court had jurisdiction to enter the adoption decree; and (3) whether the trial court considered evidence inappropriate to the jurisdictional issue. We affirm.

Petitioner married Linda in Woodhall, Illinois, on April 20, 1968. During their marriage, two sons were born in Galesburg, Illinois: Brian Stephen Eckberg, May 19, 1968, and Brett Alvin Eckberg, April 16, 1970. In February 1974, petitioner and Linda were divorced, with custody of the children awarded to Linda and the issue of child support reserved. In 1983, respondents filed a petition for adoption of the Eckberg children in Cook County, Illinois, along with an affidavit stating that petitioner could not be found and that service was executed by publication in the Chicago Law Bulletin. Petitioner did not respond to the notice, and the adoption decree was entered in June 1983. Petitioner filed a petition to vacate the adoption decree in May 1986.

The evidence adduced at the hearing on this petition revealed the following. From the time of the divorce until the time petitioner filed this action, petitioner and respondents have resided at numerous locations. Petitioner moved shortly after the divorce in 1974 from the marital home in Macomb, Illinois, to Albuquerque, New Mexico, but returned to Macomb in early December 1974. In January 1975, petitioner moved to De Kalb, Illinois, where he worked various jobs and attended Northern Illinois University. In May 1981, petitioner relocated to Hermosa Beach, California, where he resides today.

After a brief stay with her parents following the divorce, Linda and the children moved in with Frank in Crickett Wood Green, Illinois. Thereafter, they moved to Good Hope, Illinois, where they resided until August 1975. At that time, Frank sold his restaurant business and they relocated to Glenwood Springs, Colorado. There, Linda and Frank were married on August 18, 1976, and the children began using the last name of "Benso." In 1977, the Bensos returned to Illinois to reside in Galesburg, Illinois. A year later, the Bensos moved to Ogden in Champaign County, Illinois, where they resided to the time of the filing of the instant action.

Respondents testified that at the time they filed their adoption petition, they were unaware of petitioner's whereabouts. In an attempt to locate petitioner, respondents unsuccessfully endeavored to contact petitioner's brother, a lawyer, by phoning the Illinois Bar Association and checking the Chicago telephone directory. They also sent a certified letter, which was returned to them as undeliverable, to petitioner's last known address.

Respondents did not attempt to contact petitioner's parents even though they knew that petitioner's natural mother was living somewhere around Nashville, Tennessee, that petitioner's father was a physician who at one time was associated with the hospital where Linda's mother had also worked, and that petitioner's father had resided in Galva, Illinois, in 1975. Respondents explained that they believed it would be fruitless to contact petitioner's father because petitioner had been estranged from him for several years, a Conclusion they reached from petitioner's father's assertion on a 1975 visit that he was unaware of petitioner's whereabouts. Linda also stated that she did not have an address for petitioner's mother but only knew of her approximate whereabouts.

Petitioner and respondents presented conflicting testimony concerning petitioner's contacts with the Bensos since the 1974 divorce. Respondents testified that with the exception of one $100 payment and a meeting with Linda in a public park in 1974, petitioner has never offered any child support or communicated with respondents until petitioner instituted these proceedings.

Petitioner, on the other hand, recounted the following contacts he had with respondents. During his stay in Albuquerque shortly after the divorce, he remained in telephone contact with Linda. On his return to Macomb, petitioner met Linda in a ...


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