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July 15, 1994


Appeal from Circuit Court of Champaign County. No. 91C548. Honorable John G. Townsend, Judge Presiding.

Petition for Rehearing Denied August 24, 1994. As Corrected September 6, 1994.

Justices: Honorable Robert W. Cook, J., Honorable James A. Knecht, J., Concurring, Honorable Carl A. Lund, J., Specially Concurring

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

On September 29, 1993, the trial court found petitioner Janet L. Allen to be in indirect civil contempt for her refusal to allow visitation between her child Hanna (f/k/a Hickenbottom) Allen, born February 13, 1989, and her former husband, respondent Rick E. Hickenbottom. Janet was ordered incarcerated in the Champaign County Correctional Facility, but the incarceration order was stayed to October 8, 1993. Janet was allowed to purge herself of contempt by producing the child at the office of Dr. Elizabeth Scott on October 1 for a visitation evaluation, and thereafter as ordered by the court. Janet did not produce the child at Dr. Scott's office on October 1, but filed a notice of appeal September 30. On October 8 the court again ordered Janet incarcerated, but stayed the incarceration pending appeal. Janet argues the finding of contempt was an abuse of discretion as she was unable to obey the visitation order because of the direction of Randall Dean Allen. She further argues the underlying visitation order is void because Rick is not Hanna's biological father. We affirm.

The parties were married November 1, 1980. During the marriage, Janet began an affair with Randall and had his child (Hanna) on February 13, 1989. After Janet learned she was pregnant she told Rick he "would be" the baby's father. Rick was present at the birth, and his name was placed on the birth certificate as the father of the child. The parties lived together with Hanna for the first two years of the child's life. Rick was aware at all times he was not the biological father of Hanna, but she grew up calling him "Daddy."

Unbeknownst to Rick, Janet took Hanna for frequent visits with Randall during the week and on weekends. Randall cared for Hanna by himself on several weekends while the parties were still married. Apparently Janet told Rick she was taking the child with her on out-of-town business (when the weekend visits occurred) and to work with her (when the evening visits occurred). Randall testified he provided food, diapers, and other support for Hanna and Janet, also without respondent's knowledge.

In late March or early April 1991, Janet left Rick, taking Hanna with her. A verified petition for dissolution of marriage was filed April 16, 1991. The petition alleged that although Hanna was born during the marriage she was not Rick's biological or adopted child. No response or answer to the petition was filed. At the grounds hearing on June 24, 1991, there was no testimony or mention of Hanna; neither did the bifurcated judgment of dissolution mention Hanna.

The parties appeared in court January 28, 1992, to present their agreement on ancillary matters. In questioning from the court both parties responded they had read the proposed supplemental judgment, understood it, and that it accurately reflected their agreement. The agreement was entered as a written order titled "Supplementary Judgment of Dissolution." It directed that "as a bond exists between" Rick and Hanna, Rick was to have visitation with Hanna on the third weekend of each month, from 9 a.m. Saturday until 7 p.m. Sunday, and five consecutive days each year. The parties agreed to use their best efforts to foster the respect, love, and affection of Hanna toward each other. The agreed order stated that as Janet had not requested or stated grounds for an award of child support, no such award was made.

On September 23, 1992, Rick filed a petition for rule to show cause why Janet should not be held in contempt, alleging Janet had refused to allow visitation between himself and Hanna since May 1992. In response, Janet filed a petition to vacate the visitation order alleging it was void because the court lacked subject-matter jurisdiction to enter the order and lacked personal jurisdiction over Hanna. Janet's petition also argued the visitation order was not a final order and was unenforceable since the court there made no finding that a parent and child relationship existed between Rick and Hanna, and no decision as to custody was made or reserved by the court. Janet also filed a petition to abate visitation. At a hearing on these filings held January 25, 1993, the trial court found there was no final order with respect to Hanna and that a determination with respect to her paternity was necessary. At this point we note that the child was almost four years old on January 25, 1993; that actions to declare the nonexistence of a parent/child relationship are barred two years after there is knowledge of relevant facts (Ill. Rev. Stat. 1989, ch. 40, pars. 2508(a)(2), (a)(3)); and that it is a mistake to order blood tests where paternity or nonpaternity can no longer be disputed. In re Marriage of O'Brien (1993), 247 Ill. App. 3d 745, 749-50, 617 N.E.2d 873, 875-76, 187 Ill. Dec. 416.

Hearings were held March 23, 1993, in three separate actions involving Hanna. In the case at bar, No. 91-C-548, the court heard testimony from Janet and Randall, and received, without objection, blood test results on Hanna, Randall, and Janet. Rick was not tested. Based on the test results the court found Hanna was not Rick's biological child, but Randall's. Janet then made an oral motion to vacate the visitation order, but that motion was denied. Janet was given leave to file a petition for modification of the visitation order, but has not done so. An adoption action, No. 92-A-11, brought by Janet and Randall, was voluntarily dismissed.

The court then took up case No. 92-L-1625, with Hanna as petitioner by Janet as her next of friend and mother, and Randall as defendant appearing personally. Rick, originally named as a defendant in that case, was never served and was dismissed. Randall filed an answer admitting he was the biological father of Hanna. The court found Randall was the biological father of Hanna, ordered the birth certificate amended, and ordered Hanna's last name changed from Hickenbottom to Allen.

On September 29, 1993, an evidentiary hearing was held on the September 1992 rule to show cause. Both parties, Rick's mother, Randall, and Hanna's day-care provider testified at the hearing. Janet maintained she was ready and willing to comply with the visitation order, but was unable to do so because Randall had forbidden her to allow visitation between Rick and Hanna. Janet testified visitation had occurred pursuant to the visitation order through April 26, 1992. Rick testified Janet told him in a phone conversation on July 24, 1992, that she would not allow any further visitation, and sent her attorney a fax to the same effect. The trial court found Janet had the ability to comply with the visitation order if she chose to do so and found Janet to be in contempt.

On appeal, Janet challenges the underlying visitation order, claiming it was a void order and cannot be the basis for contempt for noncompliance. A judgment is void when entered by a court without jurisdiction of the parties or the subject matter. A void judgment may be attacked at any time, directly or collaterally. (In re Marriage of Fox (1989), 191 Ill. App. 3d 514, 520, 548 N.E.2d 71, 74, 138 Ill. Dec. 841.) Subject-matter jurisdiction is the power of a particular court to hear the type of case then before it. (In re ...

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