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10/25/89 Linsey Renee Simcox, By v. Christopher Allen Simcox

October 25, 1989

LINSEY RENEE SIMCOX, BY AND THROUGH HER NATURAL GUARDIAN, DEBORAH ANN DEAR, APPELLEE

v.

CHRISTOPHER ALLEN SIMCOX ET AL. (CHRISTOPHER ALLEN SIMCOX, APPELLANT; JEFFREY MITCHELL DEAR, APPELLEE)



SUPREME COURT OF ILLINOIS

546 N.E.2d 609, 131 Ill. 2d 491, 137 Ill. Dec. 664 1989.IL.1679

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Adolphus Rivers, Judge, presiding.

APPELLATE Judges:

CHIEF JUSTICE MORAN delivered the opinion of the court. JUSTICE RYAN, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

Plaintiff, Linsey Renee Simcox, by and through her mother and natural guardian, Deborah Ann Dear (Deborah), filed this paternity action in the circuit court of Cook County against defendants, Jeffrey Mitchell Dear (Jeffrey) and Christopher Allen Simcox (defendant), pursuant to the Illinois Parentage Act of 1984 (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 2501 et seq.). Plaintiff sought: (1) to determine the existence of the father and child relationship between herself and Jeffrey; (2) to declare nonexistent the parent and child relationship between herself and defendant; (3) to change her name from Linsey Renee Simcox to Linsey Renee Dear; (4) a new birth certificate; (5) to have custody vested jointly in Deborah and Jeffrey; and (6) to reserve Jeffrey's support obligation. Defendant filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-619). The circuit court granted defendant's motion and dismissed plaintiff's paternity action with prejudice. The circuit court held that the doctrines of collateral estoppel and res judicata barred both plaintiff and Jeffrey from bringing paternity actions pursuant to the Act (Ill. Rev. Stat. 1985, ch. 40, par. 2501 et seq.), because a judicial finding of paternity was included in Deborah and defendant's uncontested judgment of dissolution of marriage. Plaintiff appealed and Jeffrey joined in the appeal.

On appeal, the appellate court reversed the circuit court. The appellate court held that the doctrines of collateral estoppel and res judicata did not bar plaintiff or Jeffrey from bringing a paternity action. The appellate court reasoned that plaintiff and Jeffrey were not parties nor were they in privity with the parties to the dissolution action, although a judicial finding of paternity was included in Deborah and defendant's uncontested judgment of dissolution of marriage. (175 Ill. App. 3d 473.) This court granted defendant's petition for leave to appeal (107 Ill. 2d R. 315).

The issues presented for review are: (1) whether plaintiff is barred from bringing this paternity action pursuant to the Act (Ill. Rev. Stat. 1985, ch. 40, par. 2501 et seq.); and (2) whether Jeffrey is barred from bringing a paternity action pursuant to the Act (Ill. Rev. Stat. 1985, ch. 40, par. 2501 et seq.).

On June 7, 1980, Deborah and defendant were married in Marion, Illinois. Their marital residence was in Carbondale, Illinois. In April 1982, defendant left the marital residence and established a separate residence. About that same time, Jeffrey allegedly engaged in sexual intercourse with Deborah and she became pregnant. In July 1982, defendant returned to the marital residence to live with Deborah. On January 24, 1983, Deborah gave birth to plaintiff.

In late 1983, Deborah filed for divorce from defendant. On March 22, 1984, the circuit court of Jackson County entered the uncontested judgment of dissolution of marriage, thereby dissolving Deborah and defendant's marriage. The uncontested judgment of dissolution of marriage provided in part:

"4. That born to the parties during their marriage was one minor child, namely, Linsey Renee Simcox, born January 24, 1983; that no children were adopted by the parties during their marriage; and that [Deborah] is not presently pregnant."

On November 8, 1986, Deborah married Jeffrey. On February 5, 1987, plaintiff filed this paternity action against Jeffrey and defendant. On April 16, 1987, defendant filed his motion to dismiss (Ill. Rev. Stat. 1985, ch. 110, par. 2-619). Although plaintiff's verified complaint failed to allege facts concerning a blood test (Ill. Rev. Stat. 1985, ch. 40, par. 2511), her response to defendant's motion to dismiss alleged that blood tests were performed and that those tests indicated that Jeffrey was the biological father.

On June 4, 1987, the hearing on defendant's motion to dismiss was held. That same day, the circuit court granted defendant's motion. Plaintiff appealed, Jeffrey joined in the appeal, the appellate court reversed and the instant appeal ensued.

The first issue presented for review is whether plaintiff is barred from bringing this paternity action pursuant to the Act (Ill. Rev. Stat. 1985, ch. 40, par. 2501 et seq.). In regard to ...


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