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06/30/94 PEOPLE STATE ILLINOIS v. MICHAEL E. NEBY

June 30, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, EX REL. ELLA BLACK, AS PARENT AND GUARDIAN, ON BEHALF OF MICHAEL ESTOCK, A MINOR, PLAINTIFF-APPELLEE,
v.
MICHAEL E. NEBY, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Champaign County. No. 91L494. Honorable Donald R. Parkinson, Judge Presiding.

As Corrected September 6, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable Carl A. Lund, J., Honorable Robert J. Steigmann, J., Concurring, Honorable Robert W. Cook, J., Concurring IN Part; Dissenting IN Part

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

This is a cause of action brought under the Illinois Parentage Act of 1984 (Act) (750 ILCS 45/1 et seq. (West 1992)). The trial court entered summary judgment against defendant Michael E. Neby on the issue of paternity and ordered past and future child support payments. Defendant appeals.

I

The first issue questions whether the complaint contained sufficient allegations to justify exercising Illinois jurisdiction over defendant, a resident of Minnesota. The amended complaint -- filed by the Illinois Department of Public Aid, on relation of Ella Black, on behalf of the minor Michael Estock -- states that defendant is the father, and Ella Black is the mother of the minor, and that the child was conceived in Illinois.

We now hold that sexual intercourse within Illinois is sufficient conduct within the State to confer jurisdiction over defendant under the provisions of the long-arm statute (735 ILCS 5/2-209(a)(6) (West 1992)), and that due process requirements have been met. See International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158; Kulko v. Superior Court (1978), 436 U.S. 84, 92, 56 L. Ed. 2d 132, 141, 98 S. Ct. 1690, 1696-97; People ex rel. Mangold v. Flieger (1985), 106 Ill. 2d 546, 550, 478 N.E.2d 1366, 1367, 88 Ill. Dec. 640.

II

Defendant's second contention is based upon the fourth amendment's prohibition of unreasonable search and seizure. This right is discussed at length in People v. Adams (1992), 149 Ill. 2d 331, 597 N.E.2d 574, 173 Ill. Dec. 600. In People ex rel. Aldworth v. Dutkanych (1986), 112 Ill. 2d 505, 493 N.E.2d 1037, 98 Ill. Dec. 16, the right to require blood tests in paternity actions was recognized and the legislative interest in providing support from the natural parent of a child acknowledged. The threat to the participant in a blood test is insignificant. Where the mother of the child, as here, has sworn to respondent's paternity by complaint, affidavit, or testimony, the trial courts have reasonable grounds to order the test. Here, there was also evidence of sexual intercourse between the mother and defendant near the time of conception.

III

As his third issue, defendant contends the trial court erred in overruling his objection to the constitutionality of section 11(e) of the Act. That part of the Act provides, in relevant part, that the report of the blood tests prepared by the appointed expert shall be admitted at trial unless:

" written motion challenging the admissibility of the report is filed by either party within 28 days of receipt of the report, in which case expert testimony shall be required. Before trial, the court shall determine whether the motion is sufficient to deny admission of the report by verification. Failure to make that timely motion constitutes a waiver of the right to object to admission by verification and shall not be grounds for a continuance of the hearing to determine paternity." 750 ILCS 45/11(e) (West 1992).

Defendant argues he was denied an opportunity to challenge the expert's findings and opinions on cross-examination. Accordingly, his due-process rights under the United States and Illinois Constitutions were violated. Defendant acknowledges the provisions of section 11(e) of the Act, which involve admission of evidence at trial, do not directly pertain to a trial court's Disposition of a case on a motion for summary judgment. Nor does defendant address the portion of the statute providing that ...


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