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05/08/96 PARENTAGE SARA RODGERS v. ROBERT LOCHMANN

May 8, 1996

IN RE PARENTAGE OF SARA RODGERS, A MINOR (THE PEOPLE EX REL. LINDA RODGERS, PETITIONER-APPELLANT,
v.
ROBERT LOCHMANN, RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Madison County. No. 90-F-1251. honorable David Herndon, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court: Hopkins, P.j., and Chapman, J., concur.

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Petitioner, Linda Rodgers, on behalf of Sara Rodgers, a minor, by and through the State's Attorney of Madison County, filed in the circuit court of Madison County a petition to determine the existence of a father and child relationship. Respondent, Robert Lochmann, filed a motion to dismiss on the basis of res judicata due to an earlier ruling in the parties' dissolution proceeding in which it was determined, on the basis of ultrasound results, that respondent was not the biological father of Sara. Sara was not a party to the dissolution proceedings, nor was she represented by a guardian ad litem. After a hearing on respondent's motion to dismiss, the trial court dismissed the petition with prejudice. The issue presented for review is whether res judicata or collateral estoppel operates to bar Sara Rodgers from bringing a petition to determine the existence of the father-child relationship. We reverse and remand.

I.

The facts of this case are as follows. According to petitioner, she and respondent engaged in sexual relations for the first time on October 26, 1983. The two were married on November 11, 1983, and separated on or about November 15, 1983. Soon thereafter, respondent filed his petition for dissolution of marriage, and petitioner filed a cross-petition; however, petitioner later voluntarily dismissed her cross-petition. The cause proceeded to a contested hearing on respondent's petition.

At the contested hearing, held on January 20, 1984, petitioner was pregnant with Sara. Petitioner was represented by counsel, butthe unborn child was not represented by a guardian ad litem. Petitioner testified that the first time the parties engaged in sexual intercourse was on October 26, 1983. An ultrasound examination was performed on December 14, 1983, and the results were submitted into evidence. The ultrasound report contained the following comments:

"COMMENTS: This scan is done for the estimation of fetal viability in a patient with first trimester bleeding. The scan shows a pregnant uterus with overall dimensions corresponding to about 10 or 11 weeks of gestation. Inside of the uterus, there is a gestational sac and inside of the gestational sac, there is a fetus with a crown rump length of 2 cm., value that corresponds to eight weeks plus five days of gestation. This is not consistent with the estimation of gestational age based on the patient's last menstrual period. There is positive fetal heart motion in real time ultrasound examination."

The report then concluded that "the ultrasonic appearance is that of a viable pregnancy of 8 weeks of gestation." A gestational age of eight weeks means that the conception of Sara occurred one week prior to the time the parties engaged in sexual intercourse. Having heard the parties' testimony and considered the ultrasound report, the court concluded in the judgment of dissolution, entered on March 18, 1984, that respondent was not the father of petitioner's unborn child. Petitioner was found liable for all medical expenses incurred in connection with her pregnancy.

On December 18, 1990, petitioner, in behalf of Sara, by the State's Attorney, filed a petition to determine the existence of a father-child relationship. The petition alleged that respondent is the natural father of Sara and requested, inter alia, a determination of this fact. Respondent denied being Sara's father. Two sets of blood tests were requested, one by the State and one by respondent. The results of these tests showed that respondent could not be excluded as the biological father. One test concluded that "the probability of paternity is 99.99% as compared to an untested random man of the North American population." The other test concluded: "The cumulative paternity index (genetic odds in favor of paternity) is 4,565. The relative chance of paternity, assuming a 50% prior chance, is 99.98%. 99.68% of falsely accused men would be excluded as the father."

On November 22, 1994, respondent filed his motion to dismiss, arguing that the doctrine of res judicata was applicable because he was previously found not to be the father in the dissolution proceedings. Following a hearing, the trial court granted the motion to dismiss with prejudice. The trial court's order specifically found that Draper v. Truitt, 250 Ill. App. 3d 654, 621 N.E.2d 202, 190 Ill. Dec. 333 (1993), was controlling, that the hearing in the dissolution proceeding was a contested matter, that the judgment of dissolution cited competent medical evidence and testimony as the basis for its finding and order, that respondent was not the father of petitioner's unborn child, that it was not the place or position of the court to assess whether the ultrasound report was competent evidence in the dissolution proceeding, that the prior court found the ultrasound report to be competent medical evidence, that the trial court was not going to second-guess that determination, and that the unborn child was adequately represented in the dissolution proceeding.

II.

The issue we are asked to address is whether res judicata and/or collateral estoppel operated to bar Sara from bringing a petition to determine the existence of a father-child relationship. The State, on behalf of Sara, contends that Sara was not a party to or in privity with her mother in the prior dissolution proceeding, was not represented in that proceeding and, therefore, is not bound by the determination made in the dissolution proceeding that respondent is not her father. The State argues that it would be an injustice to preclude Sara from litigating the issue of paternity where new, significant, and material changes in the facts and conditions have occurred since the dissolution proceedings and Sara, then unborn, did not have a full and fair opportunity to litigate the issue of paternity. The State specifically cites Simcox v. Simcox, 131 Ill. 2d 491, 546 N.E.2d 609, 137 Ill. Dec. 664 (1989), in support of its contentions. Respondent replies that Simcox is distinguishable from the facts of the case at bar because in the instant case the issue of paternity was adjudicated in a contested dissolution hearing between respondent and petitioner, whereas in Simcox an uncontested judgment of dissolution was entered. Simcox, 131 Ill. 2d at 494, 137 Ill. Dec. at 665, 546 N.E.2d at 610. Respondent further contends that the essential elements of res judicata have been met and that no new, significant, and/or material changes in facts and conditions have occurred since the dissolution proceeding. Respondent insists that there has been a full and fair adjudication on the merits as to his paternity, and that res judicata operates to bar the instant proceedings. We, however, agree with the State.

In the instant case, the trial court relied on Draper v. Truitt in making its determination that res judicata applied. In Draper, a mother brought a paternity action on behalf of her minor daughter, approximately 10 years after the mother had herself lost a paternity action against the same alleged father. The Draper court held thatthe minor's interest had been adequately represented by the mother in the earlier paternity action because the mother fully litigated the issue of paternity earlier. Draper, 250 Ill. App. ...


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