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06/22/89 In Re Custody of Yvonne Genevieve Caruso

June 22, 1989

IN RE CUSTODY OF YVONNE GENEVIEVE CARUSO, A MINOR (FRANK A.


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

Caruso, Petitioner-Appellee, v.

Elizabeth Murphy, Respondent-Appellant)

542 N.E.2d 375, 185 Ill. App. 3d 739, 134 Ill. Dec. 196 1989.IL.960

Appeal from the Circuit Court of Cook County; the Hon. James L. Harris, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., and McMORROW, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

The circuit court of Cook County awarded attorney fees and costs to petitioner, Frank Caruso, under section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-611). The court entered the order against respondent, Elizabeth Murphy, now known as Elizabeth Smeja, and Elizabeth's attorney, Walter Hess. Elizabeth appeals, contending: (1) the present version of section 2-611 was not in effect at the time the parties filed their pleadings, and (2) the trial court abused its discretion in making the award.

We affirm the order of the trial court in all respects.

Background

The record shows that on June 19, 1985, Frank petitioned the trial court for custody of Yvonne. (See Ill. Rev. Stat. 1985, ch. 40, par. 601.) Frank alleged, inter alia, that Yvonne was born on October 4, 1984, that he was her father, and that it would be in Yvonne's best interests for her to be placed in his custody. Elizabeth filed her response to Frank's custody petition on December 3, 1985. Elizabeth alleged, inter alia, that Frank was not Elizabeth's father.

On January 8, 1986, the trial court ordered that Frank, Elizabeth, and Yvonne be administered the necessary blood tests to determine Frank's paternity. On January 22, 1987, the court held a contested trial on the issue of paternity. On February 5, 1987, the trial court entered an order declaring Frank to be Yvonne's natural father.

In addition to its paternity order, the trial court also granted Frank leave to file a petition for sanctions pursuant to section 2 -- 611. Frank charged Elizabeth with contesting his paternity despite the following pertinent facts: (1) Frank was in the hospital delivery room with Elizabeth, with her consent, when Yvonne was born; (2) Frank is named as Yvonne's father on her birth certificate, the truth of which Elizabeth certified; (3) blood tests were sent to Hess, Elizabeth's attorney, around March 7, 1986, showing a 99.99% probability that Frank was Yvonne's father; (4) Frank and Elizabeth lived together during the time of Yvonne's conception; and (5) only Elizabeth could have obtained a court order, via a paternity action, requiring blood testing of a man outside of the present lawsuit, and that she never brought such an action by the time of the paternity trial.

Frank additionally alleged that Elizabeth delayed the paternity trial twice, once to locate a man for blood testing, and the second continuance for obtaining the blood tests; at the paternity trial, Elizabeth submitted no evidence of any other blood test, her sole evidence was her uncorroborated testimony that she and Frank did not have intimate relations during ...


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