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In re Parentage of Ryan M. Griesmeyer

December 18, 1998

IN RE PARENTAGE OF RYAN M. GRIESMEYER, A MINOR (NATHALIE GRIESMEYER, PETITIONER-APPELLEE,
v.
THOMAS LAROSA, RESPONDENT (BRIAN S. GRIESMEYER, ADDITIONAL PARTY RESPONDENT- APPELLANT)).



Appeal from the Circuit Court of Cook County Honorable Kathleen G. Kennedy, Judge Presiding.

The opinion of the court was delivered by: Justice Greiman

Petitioner, Nathalie Griesmeyer, on behalf of her daughter Ryan M. Griesmeyer, a minor, filed a petition to establish the paternity of the child. She joined Brian Griesmeyer, her first husband, Ryan being born during their marriage. She further joined her current husband, Thomas LaRosa.

The circuit court subsequently denied the section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 1996)) filed by respondent Brian S. Griesmeyer. This court granted Brian's application to hear the appeal of the circuit's order pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308).

The question of law presented in this interlocutory appeal, as stated in the circuit court's order of March 6, 1998, is "whether or not the fact that a minor child was represented by an attorney and guardian ad litem in an ultimately uncontested dissolution proceeding in which the wife had originally disputed the husband's paternity, precludes the relitigation of the issue of parentage in a subsequent action brought by the wife on behalf of said minor child."

We find that the parentage petition is barred by the judgment of dissolution, where a court-appointed guardian ad litem represented the minor during the dissolution proceedings. Accordingly, we reverse the circuit court's order denying Brian's motion to dismiss.

Nathalie and Brian were married in November 1991 and, during the course of their marriage, the minor was born in June 1992. In September 1994, dissolution of marriage proceedings commenced when Brian filed a petition for dissolution of marriage and Nathalie responded with a counterpetition for dissolution of marriage, in which she denied that Brian was the father of the minor. The trial court then appointed a guardian ad litem to represent the interests of the minor child. Eventually, in January 1996, the circuit court entered an uncontested judgment for dissolution of their marriage, which included the court's finding that the minor was "born as a result of this marriage."

On August 22, 1997, Nathalie filed a petition to establish father and child relationship, alleging that respondent Thomas LaRosa (LaRosa) was the biological father of the minor. By the time this petition was filed, Nathalie was married to LaRosa, who has never appeared, personally or by counsel, in any of the judicial proceedings either in the circuit court or during this appeal. In response, Brian filed a section 2-619 motion to dismiss, asserting that the doctrine of collateral estoppel barred relitigation of the identity of the minor's natural father based on the findings set forth in the dissolution proceeding and the position taken therein by the minor through her attorney and guardian ad litem.

In his petition for dissolution of marriage, Brian stated that the minor was born of the marriage between himself and Nathalie. In both her answer to Brian's petition for dissolution of marriage and her counterpetition for dissolution of marriage, Nathalie denied that Brian was the biological father of the minor. In his response to Nathalie's counterpetition, Brian denied the allegation that he was not the biological father of the minor and further asserted that Nathalie was precluded from seeking a declaration of the nonexistence of the parent and child relationship because she had failed to make such a parentage claim within two years after the birth of the minor. By order dated September 19, 1994, the circuit court appointed the public guardian to represent the interests of the minor.

At a prove-up hearing on January 18, 1996, *fn1 Brian testified that one child was born of the marriage, i.e., the minor. Nathalie testified that she heard the summary of the terms and conditions of the marital settlement agreement and the joint parenting order to which Brian testified. On the same date, the circuit court granted Brian's petition for dissolution of marriage and entered a judgment of dissolution, which incorporated a marital settlement agreement and a joint parenting agreement. The order also expressly discharged the office of the public guardian from any further obligations.

In its judgment for dissolution of marriage, the circuit court specifically found "[t]hat there was one child born as a result of this marriage; namely Ryan M. Griesmeyer, born June 18, 1992." The marital settlement agreement also stated that "there was one child born as a result of this marriage; namely RYAN M. GRIESMEYER, age 3 years, born June 18, 1992."

The marital settlement agreement provided that the spouses, Nathalie and Brian, agreed that each is a fit and proper person to have custody of the minor and that joint custody would be in the best interests of the minor. Furthermore, Brian was obligated to pay child support twice a month; maintain adequate hospitalization insurance for the minor; pay 50% of all ordinary medical expenses not covered by insurance; pay any amount deemed to be extraordinary expenses incurred for medical, doctor, hospital, surgical, dental, psychiatric and psychological care; contribute toward the college education of the minor; maintain all existing life insurance policies on his life with the minor as irrevocable beneficiary during the designated time period; and pay one-half for the minor's day care costs and for the minor's attendance at a parochial or other private school, if such attendance is decided.

The spouses further agreed that their joint custody of the minor would accord with the "joint parenting agreement/order," which was a nine-page attachment providing, inter alia, that the minor would reside primarily with Nathalie and Brian would have the specified visitation schedule. The joint parenting agreement further provided that the minor "shall continue to use the name: RYAN M. GRIESMEYER and the Mother shall not, for any reason or purpose including her possible remarriage, cause or permit the child to use or be designated by any other name."

More than 1 1/2 years later, on August 22, 1997, Nathalie filed a petition to establish father and child relationship, seeking to declare LaRosa the biological father of the minor. On September 16, 1997, Brian filed a motion to dismiss Nathalie's petition. To this motion, Brian attached his affidavit in which he attested that he had consistently and regularly paid every child support payment directed in the judgment for dissolution of marriage and had consistently and regularly exercised all visitation with the minor as provided in the judgment. Brian noted that the minor was represented throughout the course of the dissolution of marriage proceeding by her own attorney and public guardian. Brian maintained that the position taken by the minor through her attorney and guardian during the dissolution proceedings and the findings set forth in the dissolution judgment bar relitigation of the identity of the minor's natural father under the doctrine of collateral estoppel.

On November 12, 1997, Nathalie filed a response to Brian's motion to dismiss, asserting that the doctrines of collateral estoppel and res judicata do not apply because the minor was neither in privity with Nathalie and Brian nor a party to the dissolution of marriage action. Nathalie maintained that the minor has an unqualified statutory entitlement to determine the identity of her ...


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