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02/25/97 JANA WYCKOFF-DIKE v. PEORIA POLICE PENSION

February 25, 1997

JANA WYCKOFF-DIKE, LEGAL GUARDIAN AND NEXT FRIEND OF TRISTAN J.B. WYCKOFF, A MINOR, PLAINTIFF-APPELLANT
v.
PEORIA POLICE PENSION FUND BOARD OF TRUSTEES, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. No. 96-MR-72. Honorable Richard Grawey, Judge Presiding.

As Corrected March 12, 1997. Released for Publication March 27, 1997.

Present - Honorable Michael P. Mccuskey, Justice, Honorable Thomas J. Homer, Justice, Honorable Peg Breslin, Justice. Justice Breslin delivered the opinion of the court. Homer and McCUSKEY, JJ., concurring.

The opinion of the court was delivered by: Breslin

The Honorable Justice BRESLIN delivered the opinion of the court:

Plaintiff Jana Wyckoff-Dike appeals a trial court's denial of her motion to quash subpoenas issued by the defendant, Peoria Police Pension Fund Board (Board). The subpoenas were issued after Jana requested that the Board designate her son, Tristan, as a beneficiary of a deceased officer's pension because Tristan had been adjudicated by the Circuit Court of Peoria County to be the officer's child. At issue is whether the Illinois Pension Code (Code), (40 ILCS 5/1-101 et seq. (West 1994)), precludes the Board from adjudicating the issue of paternity after paternity is established in the circuit court. We hold that it does not. Thus, we affirm.

FACTS

Jana allegedly had a relationship with a police officer named Jerome Short. She claims that as a result of the relationship she became pregnant and gave birth to Tristan. While alive, Jerome did not acknowledge paternity. However, after his death, Jana contacted the Board to request that Tristan receive benefits as a surviving child under the Police Pension Act. The Board denied the request because there was insufficient evidence of paternity.

Thereafter, Jana filed a paternity action under the Parentage Act of 1984 (750 ILCS 45/1 et seq. (West 1994)). This action was uncontested and resulted in a finding that Tristan was Jerome's son. The action, however, was against Jerome's estate and did not name the Board as a defendant. Following the entry of the order, Jana's attorney, Christopher Ryan, contacted the Board to inform it of the circuit court's finding and to request that the Board determine what benefits Tristan should receive. The Board responded that a formal hearing was required where Jana could introduce evidence on the issue of paternity.

After allegedly discussing with the Board the use of DNA testing as a method of proving paternity, Ryan began the process of acquiring tissue samples and forwarded them to a laboratory for testing. He indicated that Tristan would submit a blood sample once it was determined that Jerome's tissue could be tested. However, before the test results returned, Ryan withdrew as Jana's attorney. Jana's new attorney indicated that Jana did not want to proceed with the testing. In preparation for the formal hearing on the case, the Board then issued subpoenas to acquire the records relating to the DNA testing from Ryan, and to compel Tristan to submit to a blood test.

Jana moved to quash the subpoenas in the circuit court. The trial court denied this motion and ruled that: (1) under the Pension Code, the Board has exclusive authority to manage the Pension Fund; (2) the question of whether Jerome was the father was a question of fact properly before the Board; (3) the Board was not bound by the previous court action because the Board was not in privity with Jerome's estate; and (4) the subpoenas issued by the Board were within its authority under 40 ILCS 5/3-136 (West 1994) and sought reasonable and relevant information. Jana appeals.

ANALYSIS

Resolution of this dispute depends on an interpretation of section 1-104.2 of the Illinois Pension Code. 40 ILCS 5/1-104.2 (West 1994). The relevant portion of section 1-104.2 provides:

Children not conceived in lawful wedlock shall be entitled to the same benefits as other children, and no child's or survivor's benefit shall be disallowed because of the illegitimacy of the child; however, in cases where the father is the employee parent, paternity must first be established. Paternity may be established by any one of the following means: (1) acknowledgment by the father, or (2) adjudication before or after the death of ...


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