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05/30/89 the People Ex Rel. Maria v. Anthony Pasko

May 30, 1989

THE PEOPLE EX REL. MARIA KELLY, PLAINTIFF-APPELLEE

v.

ANTHONY PASKO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

540 N.E.2d 462, 184 Ill. App. 3d 528, 132 Ill. Dec. 722 1989.IL.816

Appeal from the Circuit Court of Cook County; the Hon. Ellis E. Reid, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Defendant appeals from a jury's verdict that he is the father of plaintiff's child arguing that (1) the trial court erred in ruling that the action was not barred by the statute of limitations; (2) paternity was not proved by a preponderance of the evidence; and (3) he was denied a fair trial by the admission of statistical blood test results and the child's birth certificate into evidence, as well as gestures and facial expressions plaintiff made during trial.

Plaintiff gave birth to her daughter on May 23, 1977, and on December 28, 1982, she executed a paternity complaint that alleged defendant is the father. The instant proceeding was filed on August 15, 1983. On June 28, 1984, the trial Judge denied defendant's motion to dismiss, in which he argued that plaintiff's action was barred by the statute of limitations. On October 24, 1984, the Judge ordered plaintiff, her daughter and defendant to undergo blood tests, which were performed on October 29, 1984.

At trial, plaintiff testified that defendant was the principal at the elementary school where she taught. Plaintiff began teaching at the school in September 1971, and she had a business relationship with defendant until December 1974, when they began "going out." She stated that they went out for drinks approximately once a month until May 1975, when they began to have sexual intercourse. They frequented the Chicago American Motel, located on Mannheim Road in Melrose Park and the Regal 8 Motel, also on Mannheim Road, but beginning in September 1975 they had intercourse two or three times a week, usually on Tuesdays, Thursdays and Saturdays, in plaintiff's home.

Plaintiff testified that her relationship with defendant began to deteriorate in August 1980, when she asked him to help support their daughter. He responded by threatening to reassign plaintiff to a less desirable classroom, although she had received excellent or superior ratings from defendant prior to that time. In June 1981 she received a rating of unsatisfactory for the school year 1980-81, and she was transferred to another, "more difficult" school in September 1981.

Plaintiff told only her mother and her baby-sitter about her relationship with defendant. Her mother died prior to trial, and the trial Judge barred the testimony of the sitter because she testified in a voir dire held outside the presence of the jury that she could not positively identify the man plaintiff was dating in 1975-76.

Plaintiff denied having sexual intercourse with anyone except defendant between July and October 1976, and stated that her daughter was conceived in August 1976. She told defendant that she was pregnant with his child on September 30, 1976, and he responded that it was her problem and that he would pay for nothing, although he later offered to pay for an abortion or, alternatively, suggested plaintiff place the child for adoption. Plaintiff testified that defendant brought items and gave her money for the baby, and that he purchased stock in the baby's name.

Plaintiff further testified that defendant had a scar from a hernia operation on his right side, and she admitted that in her deposition she had said that she could not remember on which side the scar was located. She also admitted that other teachers at the school could have known about the scar because defendant had the operation shortly before his father's wake in 1978, and that teachers attending the wake would have known about the operation.

On cross-examination, plaintiff conceded that she knew of no witnesses who could corroborate the fact that she and defendant had been at the tavern, restaurant or motel to which she had testified going with defendant; that the Chicago American Motel had been sold and that no guest registration records were available; that she did not know if any attempts had been made to locate such records from the Regal 8 Motel; that she had never talked with any of her neighbors to determine if any of them had seen defendant go into her house between 1975 and 1981; and that none of her four children had ever seen defendant at their home.

Edward Kelly, plaintiff's ex-husband, is listed as the child's father on her baptismal certificate; however, plaintiff claims that a church employee listed him as the father. The employee died prior to trial. Plaintiff listed Edward Kelly as the father on her daughter's school registration, completed in February 1982, because he is listed as the father of her other children. She did not list a father's name on the birth certificate, but did list the age of the father as 50 years old. Edward was approximately 36 years old at the time of the baby's birth and defendant was approximately 50 years old. The results of the blood tests exclude Edward as the child's father; however, she calls Edward "daddy," and plaintiff has not dissuaded her from doing so.

The trial court ordered that Clare Wong, a medical technologist who supervised the blood tests, would be allowed to testify as to the results of the tests and the similarities between defendant's blood and the baby's as indicated by a specific test, but she was not allowed to "tie them all together" and testify as to the probability that defendant is the child's father. Wong then testified that plaintiff has Type O blood and that both defendant and plaintiff's daughter have Type B blood; she also explained the index results for each of 16 blood systems. For example, the paternity index for the ABO system was 7.9595, meaning that defendant was close to eight times more likely to be the father compared to a random man. Wong also gave her opinion that the test results did not exclude defendant as the biological father.

Defendant testified that he had four children and had been divorced since the spring of 1980. He denied ever having sexual intercourse with plaintiff or giving her money for her child. After the birth of the child, he and his wife brought baby items to plaintiff. On occasion he loaned plaintiff $5 or $10, which she repaid, and at times he gave her a ride to school when her car would not start; she did the same for him.

Defendant stated that during August 1976 he had a severe attack of bursitis in his shoulder and was also taking medication for allergies and that both conditions made it more difficult for him to have sex as well as lessened his interest in doing so.

He also stated that he had an indentation in his chest, which he had since birth. During cross-examination, plaintiff had testified that, other than the hernia scar, she did not know of any other physical abnormality of the defendant; however, after defendant testified regarding his indentation, ...


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