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Nienhouse v. Nienhouse

December 30, 2004

IN RE MARRIAGE OF: DONNA K. NIENHOUSE, PETITIONER-APPELLEE,
v.
ROBERT F. NIENHOUSE, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 95 D 8920. Honorable Michele F. Lowrance, Judge Presiding.

The opinion of the court was delivered by: Justice Theis

In this consolidated appeal, Respondent, Robert F. Nienhouse, appeals from a judgment for dissolution of his marriage to the petitioner, Donna K. Nienhouse. During the pendency of their marriage, two children, Catherine and Caroline, were born. Robert sought a declaration of non-paternity with respect to Caroline. It was agreed by the parties, in part due to deoxyribonucleic acid (DNA) testing, that Robert was not the father of Caroline. Thereafter, the trial court denied Robert's petition for sibling visitation between Catherine and Caroline, and denied his motion to vacate the order of non-paternity. The parties subsequently entered into an agreement regarding sibling visitation which was incorporated into the judgment for dissolution of marriage.

[9]     On appeal, Robert contends that (1) the trial court erred in denying his motion to vacate the non-paternity order; (2) that the trial court erred in denying his petition for sibling visitation between Catherine and Caroline; and (3) the trial court abused its discretion in requiring Robert to pay the attorney fees for David Goldman, Caroline's child representative. For the following reasons, we affirm in part and dismiss in part appeal no. 1-03-2279, and dismiss appeal no. 1-03-2357.

BACKGROUND

The following facts are relevant to a disposition of this appeal. Donna and Robert were married on December 9, 1989, and had a daughter, Catherine, born December 10, 1990. In October 1995, Donna filed a petition for dissolution of marriage. Thereafter, Robert filed a counter-petition, seeking custody of Catherine and Donna's son Carlton, whom he had adopted. During the pendency of the dissolution proceedings, in March 1997, Donna gave birth to a daughter, Caroline. Two months later, Robert filed a petition for establishment of non-paternity as to Caroline, and attached the DNA test results to his petition which excluded him as her biological father.

On July 21, 1997, an order was entered "[t]hat by agreement of the parties and based upon the parentage testing performed, the court finds that Robert F. Nienhouse is not the biological father of the minor child Caroline Nienhouse, born March 19, 1997." Subsequently, in 1998, Donna initiated a parentage action against David B. Weinberger. Caroline was represented by a guardian ad litem (GAL) and her best interests were considered during those proceedings. Weinberger acknowledged paternity and entered into a parentage settlement agreement with Donna which was incorporated into a judgment of parentage on February 25, 1999. As part of that judgment, Donna was awarded custody of Caroline.

Almost four years after the entry of the order regarding Robert's non-paternity, Robert filed a motion seeking to vacate that order, arguing that 1) the trial court erred in failing to conduct a hearing on Caroline's best interest; 2) the order violated Caroline's right to due process; and 3) the order violated Illinois public policy regarding the best interest of the child. However, on August 15, 2001, Robert sought to voluntarily dismiss that motion without prejudice. The record reflects that the motion to voluntarily dismiss was never ruled upon by the trial court. Additionally, Robert had filed a complaint for declaratory relief in the chancery division, seeking a judgment that the non-paternity order of July 21, 1997, was void. That action was consolidated into the pending dissolution proceedings, but was later voluntarily dismissed on September 30, 2002.

On September 13, 2002, Donna filed a motion to strike Robert's motion to vacate the non-paternity order for failure to state a cause of action upon which relief could be granted. The motion was additionally joined by Caroline's child representative, who argued that it would not be in Caroline's best interest to vacate that order. On September 30, 2002, the trial court granted the motion to strike, dismissed Robert's motion with prejudice, and denied Robert's request to replead and file an amended motion to vacate.

Additionally, on July 22, 2002, Robert filed a third emergency petition for sibling visitation on behalf of his daughter Catherine pursuant to section 607 of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (750 ILCS 5/607 (West 2002)). Goldman then filed a motion to strike and dismiss the petition, arguing that section 607 had been declared unconstitutional by the supreme court in Wickham v. Byrne, 199 Ill. 2d 309, 769 N.E.2d 1 (2002). On August 7, 2002, the trial court denied the petition for visitation, holding that the statute upon which the petition was premised was no longer valid, relying on Wickham. Furthermore, the court held that Robert's motion to vacate the agreed order regarding his non-paternity did not stay the enforcement of the non-paternity order because it was a consent decree in which the issue of Caroline's paternity was never tried or adjudicated.

Subsequently, on May 16, 2003, the trial court entered a judgment for dissolution of marriage. Therein, Robert was awarded the sole care, custody, and control of Catherine. The judgment also incorporated a previously entered order between Robert and Donna in which they agreed to sibling visitation between Catherine and Caroline as follows:

"That the order entered October 7, 2002, * * * providing sibling visitation between CATHERINE and CAROLINE on Sundays from 1:00 to 5:00 p.m. at Norma Alencastro's house, is incorporated in this Judgment and that each and every provision thereof is binding upon each of the parties hereto."

The record further reflects that after the judgment for dissolution of marriage was entered, Donna moved to Kentucky with Caroline. Robert sought to enforce the agreed visitation order in the circuit court of Kentucky, and the court denied enforcement of the order, finding that Caroline was not a party to the action, was not a child of the marriage, was a resident of Kentucky, and that Donna objected to the visitation. Robert's appeal to the Kentucky court of appeals is now pending.

The judgment for dissolution of marriage also incorporated an order awarding fees and costs to Goldman for his services as child representative pursuant to section 506 of the Marriage Act (750 ILCS 5/506 (West 2002)). On May 27, 2003, Robert filed a notice of appeal (case no.1-03-2357). Thereafter, Goldman filed a post-judgment motion for clarification and reconsideration with respect to the issue of his fee award. That motion was denied on July 21, 2003. On July 30, 2003, Robert filed a ...


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