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06/19/95 ILLINOIS DEPARTMENT PUBLIC AID EX REL.

June 19, 1995

THE ILLINOIS DEPARTMENT OF PUBLIC AID EX REL. DEBORAH L. MASINELLI, PLAINTIFF-APPELLEE,
v.
JEFFREY SCOTT WHITWORTH, DEFENDANT-APPELLANT, V. BRETT WHITWORTH, THIRD-PARTY DEFENDANT-APPELLEE.



Appeal from Circuit Court of Macoupin County. No. 88F86. Honorable Dennis L. Schwartz, Judge Presiding.

As Corrected July 19, 1995.

Honorable Frederick S. Green, J., Honorable James A. Knecht, P.j., Honorable Robert W. Cook, J., Concurring

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

This is a paternity action brought on September 1, 1988, by the Department of Public Aid (Department) on behalf of Deborah L. Masinelli against Jeffrey Scott Whitworth, whom Masinelli claimed was the father of her minor child. Jeffrey was permitted to implead his identical twin, Brett Whitworth, as a third-party defendant. After reviewing the results of blood tests and testimony of the parties, the trial court determined there was sufficient evidence to establish, by a preponderance, that Jeffrey was the biological father of the child. A judgment so finding and ordering Jeffrey to pay support for the child was entered on April 19, 1994. Jeffrey appeals, contending the trial court erred in applying the statutory presumption of paternity contained in section 11(f)(4) of the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/11(f)(4) (West 1992)) to him. We disagree and affirm.

The genetic evidence consisted of several sets of blood tests, the most exacting of which showed that both Jeffrey and Brett had a combined paternity index of 7,883 to 1, which means that it is 7,883 times more likely that a union between Masinelli and either Jeffrey or Brett would produce a child with the observed genetic markers than would a union between Masinelli and any randomly selected male from defendants' race.

The nongenetic evidence consisted of testimony by Masinelli that she dated Jeffrey and engaged in intercourse with him on up to six occasions roughly nine months prior to the birth of the child. Masinelli also testified she never dated Jeffrey's identical twin, Brett, and never engaged in sexual relations with him. Both men testified and denied that they engaged in sexual relations with Deborah, although each believed the other to be the father of the child.

Masinelli's sister, Angela Taylor, testified that she introduced Masinelli to both brothers and had seen Masinelli kissing Jeffrey on at least one occasion at a social gathering. However, she never observed Masinelli and Brett in a dating situation because "Brett did not like Debbie."

Both Masinelli and Angela testified that even though defendants were identical twins, the women could distinguish between the two brothers. Finally, although Masinelli testified that she had never ridden in a car with Brett, that testimony was contradicted by Brett, who indicated he had once given her a ride during which the car became stuck in a cornfield and had to be towed.

Section 11 of the Parentage Act concerning blood tests provides:

"Tests taken pursuant to this Section shall have the following effect:

(3) If the blood or tissue tests show that the alleged father is not excluded and that the combined paternity index is less than 500 to 1, this evidence shall be admitted by the court and shall be weighed with other competent evidence of paternity.

(4) If the blood or tissue tests show that the alleged father is not excluded and combined paternity index is at least 500 to 1, the alleged father is presumed to be the father, and this evidence shall be admitted. This presumption may be rebutted by clear and convincing evidence." 750 ILCS 45/11(f)(3), (f)(4) (West 1992).

Both parties agree that identical twins have identical deoxyribonucleic acid (DNA) signatures or genetic markers. (See People v. Lipscomb (1991), 215 Ill. App. 3d 413, 418, 574 N.E.2d 1345, 1348, 158 Ill. Dec. 952.) As we have indicated, based upon the blood tests and because defendants are identical twins, they each had an identical paternity index of 7,883 to 1. Jeffrey claims that the court erred in applying the statutory presumption, however, because the "actual" paternity index, in Jeffrey's view, is 2 to 1 since the "universe" of putative fathers includes only ...


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