Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

09/30/94 EILEEN MCNELLIS v. MARTIN O'CONNOR

September 30, 1994

EILEEN MCNELLIS, ON BEHALF OF MARGARET MCNELLIS, PETITIONER-APPELLANT,
v.
MARTIN O'CONNOR, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable R. Morgan Hamilton, Judge Presiding.

Egan, McNAMARA, Giannis

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

This case involves the rights of a child born to an unwed mother to support from the child's father. The child, through her mother, appeals from an order dismissing the child's petition to increase child support payments and for other relief.

On September 2, 1988, the petitioner, Eileen McNellis, gave birth to Margaret. On December 7, 1988, the petitioner, by the State's Attorney, filed a "Complaint to Determine the Existence of the Father and Child Relationship." On April 11, 1989, the respondent, Martin O'Connor, admitted parentage of Margaret; he was ordered to pay $240 per month as temporary child support. On November 13, 1989, the trial Judge made permanent the temporary child support, reserved the issue of visitation, and enjoined the petitioner from contacting the respondent except through his attorney. On December 13, 1989, by an agreed order, the respondent was ordered to pay $390 as pre-natal and post-natal expenses; to pay $960 as retroactive child support; to provide medical insurance for Margaret; and to pay for one-half of medical and dental expenses not covered by his insurance.

On May 19, 1992, the petitioner, again by the State's Attorney, filed a "Petition for Modification Increase," based on a substantial change of circumstances. The petitioner alleged that the circumstances changed because respondent's income and the needs of the child had substantially increased. The petitioner also filed a Rule 237(b) notice to the respondent to produce federal and state tax returns for the years 1989, 1990 and 1991; pay stubs; and other financial information. At that time Margaret was nearly 4 years old.

On August 31, 1992, the petitioner's attorney, who was an assistant State's Attorney and respondent's counsel, negotiated a settlement. Also present was her cousin, Patrick Sullivan, an attorney. The circumstances leading up to the settlement were disclosed later at the hearing at which the Judge entered the order which is the subject of this appeal. We will discuss those circumstances later. An order was entered on that same day modifying the support obligations to $1,000 per month. An additional order was entered the same day requiring the respondent to be responsible for reasonable educational expenses for Margaret. Both orders were presented to the trial Judge as agreed orders. Before entering the orders, the Judge read the agreed orders and questioned the parties and their counsel. The Judge asked the petitioner, "And this is satisfactory to you?" The petitioner said, "Okay. Yes." The Judge then signed the orders.

Thirty days later, the petitioner filed another petition, this time through a private attorney who also represents the petitioner in this appeal. Count I sought to vacate or modify the order of support; count II was a petition for the imposition of a child support trust; and count III was a petition to compel the respondent to visit Margaret. The petitioner later filed interrogatories and a request for production of documents for inspection and copying. The respondent filed objections to the interrogatories and objections to the request for production. He simultaneously filed a motion to strike and dismiss the petition and a memorandum in support of the motion. The motion to strike and dismiss was filed pursuant to section 2-615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-615.) The petitioner was given 21 days to file a response to the motion to dismiss the petition and to the objections to discovery. The petitioner filed her responses, and a hearing on the motion to strike was continued to February 1, 1993. On February 1, 1993, a hearing was conducted on the motion to strike and dismiss. After hearing from the attorneys for the parties, the Judge dismissed the petition.

Our analysis necessarily begins with the allegation of the petition. The petition alleged that "little or no discovery of [the respondent's] income and assets was done," that the respondent had represented his income to be $25,000 per year at the time the settlement was entered into; that on information and belief the respondent was "the beneficiary of at least one trust fund and has substantial assets at his disposal"; that on information and belief "[the respondent's] income is far greater than $25,000 per year, and he misrepresented his income." Alternatively, the respondent's "income has increased substantially since the entry of the order, the same constituting a substantial change of circumstances." The petition also alleged that based on the representations of the respondent, and due to the fact that the petitioner was under duress and was not adequately informed as to [the respondent's] financial situation, she agreed to the entry of the order providing for the respondent to pay her only $1,000 per month for child support.

The petition asked for an increase in child support; that the respondent be obligated to pay for Margaret's college expenses; that the respondent be required to set up an appropriate amount of life insurance to secure his support obligation; that the respondent be required to pay all uncovered medical expenses of Margaret; and to pay the petitioner's attorney fees. The petitioner also filed an extensive set of interrogatories and a comprehensive request for production of documents, all of which were addressed to the financial condition of the respondent.

We turn now to the motion to strike and dismiss filed by the respondent. It was identified as a Motion to Strike and Dismiss "Pursuant to Section 2-615 of the Illinois Code of Civil Procedure." (Ill. Rev. Stat. 1991, ch. 110, par. 2-615.) The motion alleged that the "petition is substantially insufficient as a matter of law." The motion then described the history of the paternity proceedings and included allegations of fact. It described the settlement negotiations between the petitioner, an assistant State's Attorney and the respondent's attorney. The petition alleged that the parties and Patrick Sullivan, an attorney and the petitioner's cousin, "over a period of several hours, negotiated a settlement of child support."

The motion to strike and dismiss also alleged that the petition was insufficient as a matter of law for several reasons including the following: 1) the petitioner failed to allege that she exercised due diligence in pursuing discovery; 2) the petitioner failed to allege that any "newly discovered evidence exists" that would "justify vacation or modification of the agreed orders"; 3) the petitioner failed to allege with particularity the basis of her claim that she was under "duress"; 4) the petitioner failed to "allege the basis for her claim that [the respondent's] income increased substantially "or to allege with particularity the basis of her claim that [the respondent's] income is greater than $25,000"; and 5) the petitioner failed to allege "with particularity the basis of her claim that [the respondent] misrepresented his income." The respondent also filed objections to the interrogatories and requests to produce documents.

In response to the motion to strike and dismiss, the petitioner argued that the motion to strike admitted all well-pleaded facts and that her allegations of the complaint stated a claim upon which relief could be granted. The petitioner also argued that agreements of the parties respecting child support are not binding on the court, citing Blisset v. Blisset (1988), 123 Ill. 2d 161, 526 N.E.2d 125, 121 Ill. Dec. 931.

The parties appeared for a hearing on February 1, 1993, on the motion to strike and dismiss. The Judge asked what the issues were and the attorney for the respondent said that, because the respondent filed a "2-615 Motion to Strike and Dismiss," the issue was whether the three counts of the petition stated a claim upon which relief could be granted. The attorney for the respondent then addressed the court and made a recitation of the procedural history of the case. She also maintained that section 2-1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-1203) was "more directed to circumstance where there has been an actual trial or hearing of evidence * * * rather than * * * where there was negotiation between the parties who were represented by counsel." She argued that the petitioner failed to allege any ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.