The opinion of the court was delivered by: Justice McMORROW
Docket No. 90732-Agenda 26-September 2001
The central issue in this appeal is whether, under section 7(b-5) of the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/7(b-5) (West 2000)), deoxyribonucleic acid (DNA) test results disproving paternity are a condition precedent to the filing of an action to declare the nonexistence of the parent and child relationship. The appellate court held that such test results are a condition precedent to the filing of a section 7(b-5) action, and reversed the judgment of the circuit court of Macon County in favor of Mark Kates, who had filed a section 7(b-5) petition *fn1 without first obtaining DNA test results. No. 4-00-0130 (unpublished order under Supreme Court Rule 23). We affirm the judgment of the appellate court.
Mark Kates and Ann Kates were married in August 1990 in Decatur, Illinois. In late 1991 or early 1992, as a result of a home pregnancy test, Mark and Ann learned that Ann was pregnant. It is undisputed that Ann told Mark at this time that he was not the child's father. On August 9, 1992, Ann gave birth to a son, M.K. Mark signed the birth certificate as the child's father.
In June 1993 Mark filed a petition for dissolution of marriage in the circuit court of Macon County. In his petition, Mark alleged that M.K. was not his son, and he asked that his name be removed from the birth certificate. Ann filed her entry of appearance and consent to judgment. Neither Ann nor Mark was represented by an attorney.
On August 6, 1993, the day of the hearing on Mark's petition for dissolution of marriage, he and Ann reached an agreement under which Mark was to pay $20 a week in child support. They informed the court of this agreement. Following the hearing, the court entered a judgment for dissolution of marriage, finding that one child, M.K., was "born to the parties" on August 9, 1992. The court held that Mark was entitled to visitation with M.K. and ordered Mark to pay child support of $20 per week, beginning on August 13, 1993. The payments were to be made to the circuit clerk.
Ann subsequently began receiving public assistance from the Illinois Department of Public Aid. In January 1994, the Macon County circuit court ordered the clerk to forward Mark's child support payments to the Department of Public Aid.
On January 8, 1996, the Macon County State's Attorney, acting on behalf of the Department of Public Aid, filed a petition to modify Mark's child support payments, seeking an increase in support. The State alleged that M.K.'s needs were not being met, as evidenced by the fact that he was receiving public assistance. The State also alleged that Mark was capable of paying an increased amount of child support.
About two weeks later (January 24, 1996), Mark filed a petition to modify or correct the judgment of dissolution of marriage "as to [the] paternity" of M.K. In his petition, Mark alleged that the original judgment for dissolution of marriage "mistakenly or improperly implied or indicated that the child born to the defendant [Ann] was a child `born to the parties.' " Mark stated that he had undergone a vasectomy in 1984, prior to Ann's pregnancy, and that he was "unable to have children and has been unable to have children since 1984." According to Mark, Ann had told him that he was not the father, and that the actual father was P.W., a man with whom she had sexual relations at the time of M.K.'s conception. The State moved to dismiss Mark's petition to modify or correct judgment on the ground that it was substantially insufficient in law, and the court granted the motion to dismiss.
A hearing was held in June 1996 on the State's petition to increase Mark's child support. At the hearing, Mark stated that M.K. was not his child. He explained that he had agreed to pay Ann $20 a week in child support in order to "help her out." According to Mark, it was his understanding that the $20 support amount would never be changed.
Ann testified that she and Mark initially agreed that Mark's name would be taken off the birth certificate, but that Mark then decided he wanted to keep his name on the certificate and "keep visitation" with the child. According to Ann, Mark said he wanted to be the father of the child and wanted to raise it as his own. Ann stated that she told Mark he was not the child's father on the night when they did the home pregnancy test.
The court ordered Mark's child support payments increased to $65 per week, finding that there had been "material changes in circumstances since the judgment [of dissolution of marriage] in that [Mark's] income ha[d] increased." The court also allowed Mark to claim M.K. for income tax purposes so long as Ann continued to receive public aid.
In May 1997 Mark filed a motion to abate his child support payments, alleging that he had been laid off from work the month before as a result of previous knee surgery and a back injury. Ann filed a cross-petition for rule to show cause why Mark should not be jailed for failure to pay child support. At the hearing on the motion and cross-petition, Mark again asserted that M.K. was not his child and that he and Ann had agreed that the original child support amount of $20 per week would never be changed. Ann conceded that she had agreed not to increase the child support, but said that after she began receiving public assistance, the Department of Public Aid stepped in and sought an increase. Ann had no control over this action. She also testified that during the divorce proceeding, Mark represented to the court under oath that M.K. was his child. According to Ann, the court advised Mark then that he would be held to be the father from that point on.
The court denied both Mark's motion and Ann's cross-petition, and held both parties in contempt for misrepresenting the fact of M.K.'s paternity to the court during the divorce proceeding. The court fined each of them $200.
On January 26, 1999, Mark filed a "Petition to Determine the Non-existence of the Father and Child Relationship" pursuant to section 7(b-5) of the Parentage Act (750 ILCS 45/7(b-5) (West 2000)). In his petition, Mark again asserted that he was incapable of fathering children because he had undergone a vasectomy in 1984. He asked the court to order Ann and M.K. to submit to DNA tests to determine the child's paternity. The State moved to dismiss Mark's petition, asserting that an adjudicated father is barred from bringing a section 7(b-5) action unless he first obtains DNA test results showing that he is not the child's natural father. The court denied the State's motion to dismiss, and ordered the parties to submit to DNA testing. This testing confirmed that Mark was not the biological father of M.K.
At the hearing on Mark's section 7(b-5) petition, Mark acknowledged that he had undergone a vasectomy prior to his marriage and that Ann had told him that he was not M.K.'s father. Nevertheless, at the time that M.K. was born, Mark was still "uncertain" as to whether he was the father. However, as a result of the DNA testing ordered by the court, Mark was now "positive" that he was not the father. Ann repeated her ...