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12/08/89 Cheryl Brezinsky, v. James R. Chervinko

December 8, 1989

CHERYL BREZINSKY, PLAINTIFF-APPELLANT

v.

JAMES R. CHERVINKO, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

548 N.E.2d 588, 192 Ill. App. 3d 124, 139 Ill. Dec. 203 1989.IL.1916

Appeal from the Circuit Court of Cook County; the Hon. D. Adolphus Rivers, Judge, presiding.

APPELLATE Judges:

JUSTICE COCCIA delivered the opinion of the court. MURRAY, P.J., and LORENZ, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE COCCIA

Plaintiff Cheryl M. Brezinsky appeals from an order entered by the circuit court, dismissing her petition for attorney fees. She expended the fees in defending defendant James R. Chervinko's appeal from a paternity judgment in her favor. The petition was brought under section 17 of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2517), as well as section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-611). We affirm for the following reasons.

Brezinsky commenced her paternity action, out of which this appeal arises, on November 18, 1985. She claimed that Chervinko was the father of her son. Chervinko denied that he had sexual intercourse with Brezinsky during the time her son was conceived. Chervinko admitted, however, that he signed a "Consent to Adoption of Unborn Child" form on June 25, 1985, as a favor to her. At a hearing held the same day, Chervinko admitted in court that he fathered Brezinsky's son. On December 5, 1985, Brezinsky moved for summary judgment upon the paternity issue, relying on Chervinko's admissions. The circuit court granted her motion on February 14, 1986, and Chervinko appealed. The circuit court's ruling was affirmed in a Rule 23 order (107 Ill. 2d R. 23) issued on November 26, 1986. This court held that the circuit court did not err in entering summary judgment against Chervinko on the paternity issue, reasoning that he was bound by his admissions in the consent form and the June 25, 1985, hearing.

The present action for attorney fees was commenced on December 24, 1986. As noted above, recovery was sought under section 17 of the Parentage Act, which provided:

"Costs. Except as otherwise provided in this Act, the court may order reasonable fees of counsel, experts, and other costs of the action and pre-trial proceedings to be paid by the parties in proportions and at times determined by the court." Ill. Rev. Stat. 1985, ch. 40, par. 2517.

Recovery was likewise sought pursuant to section 2 -- 611 of the Code of Civil Procedure, which stated:

"Untrue Statements. Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney's fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal." (Ill. Rev. Stat. 1985, ch. 110, par. 2-611.)

Regarding section 2 -- 611, Brezinsky averred, the circuit court found Chervinko's defense to be untrue, and that finding was affirmed on appeal. Thus, his denial of paternity was without reasonable cause, contrary to section 2 -- 611. Fees in excess of $6,000 were sought.

In response, Chervinko argued that the General Assembly did not intend that attorney fees be recoverable for defending appeals from paternity judgments, because such fees were not specifically mentioned in section 17 of the Parentage Act. Concerning section 2 -- 611 of the Code of Civil Procedure, Chervinko contended that even if his denial of paternity was untrue, it did not follow that he knew it to be untrue. This was in keeping with his theory that he executed the consent form as a favor to Brezinsky, rather than as an admission of paternity.

A hearing was held on the petition for attorney fees on April 4, 1987, and the circuit court denied it. The circuit court ruled that it had no jurisdiction under section 17 to award attorney fees for defending Chervinko's appeal of Brezinsky's paternity judgment, and that there was no evidence as to any unreasonable pleading by him in violation of section 2 -- 611. She then moved to reconsider, but the circuit court denied her motion on September 25, 1987. ...


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