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Illinois Department of Public Aid ex rel Howard v. Graham

March 05, 2002

ILLINOIS DEPARTMENT OF PUBLIC AID, EX REL. CONNIE S. HOWARD PETITIONER-APPELLEE,
v.
TODD R. GRAHAM, RESPONDENT-APPELLANT.



Appeal from the Circuit Court for the 9th Judicial Circuit, Fulton County, Illinois No. 00-F-20 Honorable David R. Hultgren Judge, Presiding

The opinion of the court was delivered by: Justice Breslin

Released for publication March 12, 2002.

ILLINOIS DEPARTMENT OF PUBLIC AID, EX REL. CONNIE S. HOWARD PETITIONER-APPELLEE,
v.
TODD R. GRAHAM, RESPONDENT-APPELLANT.

Appeal from the Circuit Court for the 9th Judicial Circuit, Fulton County, Illinois No. 00-F-20 Honorable David R. Hultgren Judge, Presiding

The opinion of the court was delivered by: Justice Breslin

PUBLISHED

 Petitioner Department of Public Aid (department) filed this child support action against respondent Todd Graham based on Todd's voluntary acknowledgment of paternity of Jonathen Graham. Claiming that the acknowledgment was induced by fraud and material mistake of fact, Todd challenged his paternity. The trial court determined that Todd's acknowledgment was conclusive as to paternity, granted the department's motion for summary judgment as to the issue of parentage, and ordered Todd to pay child support. Todd appealed. We affirm and hold that a presumed father who failed to rescind his voluntary acknowledgment of paternity within the 60 days required by the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/5(b) (West 2000)) can challenge paternity only by seeking post-judgment relief pursuant to section 2-1401 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-1401 (West 2000)).

FACTS

Jonathen was born to Connie Howard on December 4, 1996. Todd, who was not married to Connie, signed a voluntary acknowledgment of paternity at the hospital the day after Jonathen's birth. The acknowledgment stated that Jonathen was Todd's biological son and included waivers of the right to request DNA testing and to challenge paternity.

In May of 2000, the department filed a complaint against Todd requesting child support and health insurance for Jonathen. Todd sent a rescission of his voluntary acknowledgment of paternity to the department and the court. In response, the department sent Todd a letter stating that the recission was invalid because it did not meet the statutory deadline and advising him that he could challenge the acknowledgment in court on the basis of fraud, duress or material mistake of fact. Todd answered the complaint and alleged that the acknowledgment was executed based on fraud and material mistake of fact.

Several months later, Todd requested that the court order DNA testing to determine Jonathen's paternity. In support of the request, Todd provided affidavits of three persons which related that Connie had admitted to them that Todd was not Jonathen's father. The department moved for summary judgment on the issue of Todd's parentage. In response, Todd submitted an affidavit stating that he has a disease which gives him only a small probability of fathering a child, that Connie knew of his diagnosis, and that she misrepresented to him that Jonathen was a "miracle baby." Todd also submitted a transcript of a different court proceeding in which Connie testified under oath that a man other than Todd was the father of Jonathen and of her two other children.

After a hearing, the trial court issued a written opinion granting the department's motion for summary judgment and finding that there was "no genuine issue of material fact as to the paternity of the child." As a result, the court ordered Todd to pay child support, child support arrearages, and health insurance for Jonathen. Todd appealed, and we affirm for the following reasons.

ANALYSIS

At issue in this case is the proper procedural means by which a presumed father may challenge a voluntary acknowledgment of paternity. This court reviews a grant of summary judgment and questions of statutory construction de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204 (1992) (summary judgment); ...


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