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08/15/89 the Department of Public v. Scott Hawkins

August 15, 1989

THE DEPARTMENT OF PUBLIC AID EX REL. HEATHER CORRIGAN, PETITIONER-APPELLEE

v.

SCOTT HAWKINS, RESPONDENT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

543 N.E.2d 317, 187 Ill. App. 3d 139, 135 Ill. Dec. 82 1989.IL.1250

Appeal from the Circuit Court of Du Page County; the Hon. Kevin P. Connelly, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. UNVERZAGT, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

The respondent, Scott Hawkins, appeals the trial court's denial of his post-trial motion seeking modification of a paternity and support order. On appeal, the respondent contends that the trial court lacked the authority to order him to obtain or maintain medical insurance for future medical expenses of his minor child and that the evidence adduced at the support hearing failed to support the trial court's findings that medical insurance was available to him for the benefit of the minor child and that he should be required to bear full financial responsibility for the child's medical expenses. We dismiss this appeal for lack of jurisdiction. The following facts are relevant to our decision.

The petitioner, Heather Corrigan, filed a petition for determination of a father/child relationship on October 21, 1987, seeking the declaration that the respondent was the father of her son, Anthony Corrigan, who was born May 11, 1985. The petition further sought an award of temporary and permanent custody of Anthony, as well as an award of temporary and permanent child support to be paid by the respondent. The petition alleged that the petitioner was without sufficient financial resources to pay for the reasonable expenses of pregnancy and delivery and to provide for Anthony's needs; it further alleged that the respondent had sufficient financial resources to pay such expenses and provide such support.

In an agreed order dated September 14, 1988, the respondent admitted paternity and admitted his duty of financial support of the minor child as well as his duty to reimburse the Illinois Department of Public Aid for monies expended on behalf of Anthony. The agreed order awarded sole care and custody of Anthony to the petitioner.

In a subsequent support hearing concerning economic issues only, the parties presented testimony concerning their respective weekly wages and expenses. The petitioner testified that public aid had contributed to her childbirth and related medical expenses. She stated that she had received public assistance in the amount of $80 for approximately six months and had been on Medicaid for an indeterminate length of time. She further stated that she had received no payments whatsoever from the respondent. At the close of the testimony, the trial court ordered the respondent to pay all ordinary and extraordinary medical expenses of the minor child, to pay the petitioner $35 per week in child support, commencing September 27, 1988, and to maintain or obtain medical insurance coverage for Anthony. The court specifically reserved ruling on the respondent's liability for payment of back support and medical expenses as well as the question of visitation.

The defendant's timely post-trial motion seeking modification of that portion of the order which required him to bear 100% of the child's medical expenses and to obtain medical insurance was denied on November 10, 1988. The respondent's timely appeal ensued.

At the outset, we shall consider whether this appeal is properly before the court. The petitioner contends that the support order dated September 22, 1988, is not a final and appealable order in that it did not dispose of all claims or issues which are material to the litigation between the parties. Thus, the petitioner argues that we should dismiss the instant appeal for lack of jurisdiction. We agree.

In the instant case, approximately one-half of the issues in dispute between the parties were disposed of by the trial court's order. Notably, the trial court reserved ruling regarding the amount of reimbursement of back support and medical expenses the respondent would be required to pay the petitioner and the Department of Public Aid. In Deckard v. Joiner (1970), 44 Ill. 2d 412, 255 N.E.2d 900, cert. denied (1970), 400 U.S. 941, 27 L. Ed. 2d 244, 91 S. Ct. 232, the supreme court stated that the paternity order in question was not final and appealable, "because it provided that jurisdiction would be retained for the determination of a matter of substantial controversy between the parties, viz., the amount of support and expenses for which defendant was liable." (Emphasis added.) (44 Ill. 2d at 417, 255 N.E.2d at 903.) The supreme court stated that the trial court's subsequent support order constituted the final determination of the parties' ultimate rights put into issue by the paternity complaint and resolved the remaining issue, that is, the amount of support and expenses for which the defendant was liable. (44 Ill. 2d at 417, 255 N.E.2d at 903.) With the entry of the support order, the trial court's judgment became final and appealable with only incidental issues remaining, namely, the enforcement of the support order and the increase in the amount of support if later deemed necessary. 44 Ill. 2d at 417, 255 N.E.2d at 903.

In a recent decision, the Appellate Court for the Fourth District relied on Deckard and held that an order which included a paternity finding and ordered support payments, but which reserved ruling on State aid reimbursement and payment of childbirth expenses, was not a final and appealable order. (People ex rel. Driver v. Taylor (1987), 152 Ill. App. 3d 413, 504 N.E.2d 516.) The Driver court stated that the childbirth expenses were conceivably substantial and could not be considered "merely incidental" to the issues already resolved. (152 Ill. App. 3d at 416, 504 N.E.2d at 518.) In so holding, the Driver court expressly declined to follow two earlier appellate decisions, Watkins v. Martin (1983), 115 Ill. App. 3d 417, 450 N.E.2d 866, and People ex rel. Johnson v. Payne (1984), 127 Ill. App. 3d 398, 469 N.E.2d 270. The instant respondent urges us to disregard the Driver holding in favor of the holdings in Watkins and Johnson.

In Watkins, the trial court entered a paternity order and subsequent support order. While the plaintiff's petitions for attorney fees and costs and retroactive support during pregnancy were pending, the defendant appealed. The appellate court denied the plaintiff's motion to dismiss, stating that the pending matters were "simply collateral" to the party's ultimate rights in the paternity action. (Watkins, 115 Ill. App. 3d at 419, 450 N.E.2d at 868.) It stated that in such a cause, all that was needed for a final and appealable order was (1) a determination of paternity, and ...


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