Searching over 5,500,000 cases.

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.

In re Paternity of Victor Paul Rogers

July 09, 1998


The opinion of the court was delivered by: Justice Hutchinson


Appeal from the Circuit Court of Du Page County.

No. 96--F--0082

Honorable James W. Jerz, Judge, Presiding.

On February 27, 1996, petitioner, Victor P. Rogers II (Victor), filed a petition in the Du Page County circuit court (Du Page court or trial court) pursuant to the Illinois Parentage Act of 1984 (the Parentage Act) (750 ILCS 45/1 et seq. (West 1996)) to establish the nonexistence of a parent-child relationship and to declare that Victor is not liable for child support. The petition named his former wife, Susan Rogers, n/k/a Susan Kratky (Susan), as respondent. The State appeared as a respondent on behalf of the Department of Public Aid (State) and filed a motion to strike and dismiss the petition pursuant to section 2--619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--619 (West 1996)) on the ground that Victor's action was barred by a prior judgment dissolving the marriage of the parties. After reconsidering its initial ruling to the contrary, the trial court dismissed Victor's petition on December 2, 1996, concluding that the principles of res judicata and, more particularly, collateral estoppel applied. On March 27, 1997, the trial court denied Victor's motion to reconsider, and this timely appeal followed. We affirm.

The record discloses that Victor Paul Rogers III (the child) was born to Susan on March 9, 1988. Four months later, on July 18, 1988, Victor and Susan were married. Two years later, on March 1, 1990, their marriage was dissolved by a judgment entered by the Cook County circuit court (the Cook court). Victor did not appear in the dissolution proceeding and was found in default. However, the Cook court made certain findings in entering the judgment of dissolution. First, the Cook court determined that Victor received due notice of the proceedings and the court was satisfied that all proper means had been taken to notify Victor of the pendency of the suit. The Cook court found, inter alia, that Victor Paul Rogers III was a child born to the parties, Victor and Susan; that Victor was unemployed and was living in Berwyn, Illinois; and that the parties were able to support themselves.

The Cook court granted custody of the child to Susan, granted Victor reasonable visitation privileges with the child, and ordered Victor to pay certain marital debts and to pay child support of 20% of his net weekly income or $25 per week (whichever was greater) through the clerk of the court pursuant to the county child support enforcement program. The Cook court expressly retained jurisdiction of the cause to enforce all the terms of the judgment of dissolution.

Nearly eight years after the child's birth, Victor petitioned the Du Page court to establish the nonexistence of the parent-child relationship between him and the child. In his petition, Victor alleged that, in June 1994 he obtained "knowledge of relevant facts" that he was excluded as the biological father of the minor child through DNA testing technology. The purported result of this test by Genetic Design, Inc., is not found in the record, although it is referenced in the petition. At this point we note that an action to declare the nonexistence of the parent-child relationship is barred if brought later than two years after the petitioner obtains "knowledge of relevant facts." 750 ILCS 45/8(a)(3) (West 1996).

After the Du Page court dismissed his petition, Victor filed a motion to reconsider on January 2, 1997, in which he challenged the trial court's application of the principles of res judicata and collateral estoppel. He also alleged for the first time that the issue of paternity was not fully adjudicated on the merits during the dissolution proceeding because Susan "took deliberate steps to prevent" Victor from appearing in the dissolution proceeding. Victor alleged, though unsupported by specific facts or affidavits, that Susan verbally reassured him that the dissolution proceeding would be dismissed and that she intercepted legal notices directed to him regarding pending court dates prior to the entry of the final judgment.

In denying Victor's motion to reconsider, the trial court concluded that the issue of parentage could not again be relitigated under the Parentage Act as parentage in the dissolution proceeding was previously determined and that the matter was res judicata. The court further opined that the proper remedy would have been for Victor to pursue a section 2--1401 petition to amend the judgment in the original dissolution proceeding. See 735 ILCS 5/2--1401 (West 1996). The court also observed that Victor was no longer a "presumed" father who could bring the action under the Parentage Act because he was already found to be the father of the child and the rebuttable presumption of paternity no longer existed. See 750 ILCS 45/7(b) (West 1996).

On appeal, Victor argues that his paternity was not adjudicated on the merits in the prior default proceeding to dissolve his marriage, and thus, his petition to establish the nonexistence of a parent-child relationship should not be barred by the principles of res judicata or collateral estoppel. He asserts that he never had the opportunity to litigate the issue of paternity due to Susan's allegedly "fraudulent" conduct. Furthermore, he argues for the very first time, in a footnote to this claim, that Susan failed to file an affidavit that Victor was not on active military duty (although he now claims he was) pursuant to the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940 (the Relief Act) (50 U.S.C.A. §501 et seq. (West 1990)). Consequently, he claims that the Cook court did not have jurisdiction to enter the judgment and the judgment of dissolution was therefore void.

The purpose of a motion to dismiss pursuant to section 2--619 of the Code is to afford litigants a means to dispose of issues of law and easily proved issues of fact. Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995). A dismissal is allowed when the claim asserted is barred by other affirmative matters that defeat the claim. 735 ILCS 5/2--619(a)(9) (West 1996). A section 2--619 motion to dismiss admits all well-pleaded facts as well as the reasonable inferences that may be drawn from those facts, and the motion should be granted if no genuine issue of material facts exists. Aspling v. Ferrall, 232 Ill. App. 3d 758, 761 (1992). The standard is similar to the one applicable to a summary judgment, and the court considers the pleadings, affidavits, and depositions when ruling on such a motion. Aspling, 232 Ill. App. 3d at 761. Absent an issue of material fact, the question on review is whether the dismissal was proper as a matter of law (Zedella, 165 Ill. 2d at 185-86), and this court employs a de novo standard of review (Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993)).

Notwithstanding Victor's attempts to interject factual issues into this appeal, the essential and material facts in this case are undisputed. The central question before this court is a legal one: whether the trial properly applied the principles of res judicata and collateral estoppel in granting respondent's motion to dismiss Victor's petition. We conclude that Victor is barred from relitigating the issue of paternity.

The doctrine of res judicata provides that a final judgment on the merits is conclusive as to the rights of the parties, constituting an absolute bar to a subsequent action involving the same claim, demand, or cause of action. Rodgers v. St. Mary's Hospital, 149 Ill. 2d 302, 311-12 (1992). When res judicata is established as a bar against the prosecution of a second action between the same parties upon the same claim or demand, it is conclusive not only as to every matter that was offered to sustain or defeat the claim or demand, but as to any other matter that might have been offered for that purpose. Housing Authority v. YMCA, 101 Ill. 2d 246, 251-52 (1984). For the doctrine to apply, there must be (1) a final judgment on the merits rendered ...

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.