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Michele Jarke and Anthony Schaffer v. Brandy Mondry

September 30, 2011

MICHELE JARKE AND ANTHONY SCHAFFER, PLAINTIFFS-APPELLANTS,
v.
BRANDY MONDRY, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Logan County No. 10L4 Honorable Thomas M. Harris, Judge Presiding.

The opinion of the court was delivered by: Justice Pope

JUSTICE POPE delivered the judgment of the court, with opinion. Justices Turner and Cook concurred in the judgment and opinion.

OPINION

¶ 1 In January 2011, the trial court granted defendant Brandy Mondry's request pursuant to Supreme Court Rule 215 (Ill. S. Ct. R. 215 (eff. July 1, 2002) (since amended effective March 28, 2011)) for plaintiffs Michele Jarke and Anthony Schaffer to provide deoxyribonucleic acid (DNA) swab samples for the purpose of determining whether Anthony is Howard Schaffenacker's biological son. In February 2011, after plaintiffs refused to provide these DNA samples, the court held plaintiffs in contempt and ordered plaintiffs to each pay a $100 monetary penalty. Plaintiffs appeal, arguing the court erred in ordering plaintiffs to submit the DNA samples. We reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 Howard Schaffenacker and Joyce Schaffenacker were married on December 1, 1959. Joyce Schaffenacker gave birth to three children. Michele was the oldest of the children. Anthony was the middle child, born April 9, 1964. Brandy was the youngest child, born February 5, 1977. Elmer Schaffenacker, Howard's father, died on February 15, 1982. Florence Schaffenacker, Howard's mother, died on March 15, 1983. Howard and Joyce Schaffenacker divorced on June 2, 1987. Joyce Schaffenacker remarried on December 22, 1989. Howard Schaffenacker died on January 25, 2010.

¶ 4 Florence Schaffenacker executed her last will and testament on December 15, 1961. The will gave a life estate in the property at issue to her husband, Elmer Schaffenacker, with a secondary and successive life estate to her son, Howard Schaffenacker. According to the will, "Upon the death of the survivor of my husband, Elmer G. Schaffenacker, and my son, Howard Schaffenacker, then the title to the residue of all my real estate shall vest in absolute fee simple in the then surviving bodily lineal descendants per stirpes of my son, Howard Schaffenacker." On October 18, 1977, Florence Schaffenacker executed a codicil to her will which gave Howard Schaffenacker's wife, Joyce Schaffenacker, a life estate interest in part of the land at issue if she survived Howard. However, her life estate terminated in the event of her remarriage.

¶ 5 In March 2010, after Howard's death, Anthony and Michele filed a verified complaint against Brandy seeking the partition of three parcels of farm ground at issue. In April 2010, Brandy filed her answer to plaintiffs' complaint, claiming Anthony held no interest in the property at issue because he was not a bodily lineal descendant of Howard Schaffenacker.

¶ 6 In July 2010, Brandy filed a motion for determination of heirship pursuant to Supreme Court Rule 215(a). In the motion, Brandy stated she removed a toothbrush, battery- operated beard trimmer, Band-Aid, insulin needle, and tissues from Howard Schaffenacker's residence after he died. Brandy stated she believed all of these were utilized by Howard because he was the only resident of the home. Brandy attached affidavits from herself and Krista Kohn to the motion. Krista Kohn's affidavit stated she was 17 years old and had been acquainted with Howard and Brandy. According to the affidavit, Krista spoke with Howard on Father's Day in 2009 and asked if he had received anything from Anthony and Michele. Krista stated Howard replied:

"That he had received nothing from Michele, but 'I did not get anything from Tony. He is not my son. I haven't received anything from him in the past and didn't expect to receive anything.' "

Brandy's own affidavit stated:

"3. When she was approximately 13 years old, at a time when her mother had left the residence for shopping or other purposes, she and her father, Howard G. Schaffenacker, got into an argument. During this argument, her mother's sister interjected herself and said 'Howard, you do not take care of your kids.' Howard said 'I certainly do.' The Aunt then stated 'maybe you take care of the girls.' Howard said 'I take care of the boy, too.' The Aunt said 'You know he is not your son.'

4. Six or seven years ago while at her mother's house, Brandy overheard her mother and Aunt in discussions discuss Tony Schaffer's change of name, and her mother said 'Howard should not have a say. He's not Tony's father.' "

Brandy did not identify her aunt by name in the affidavit. In addition, she did not claim Howard ever told her he was not Anthony's father.

¶ 7 In August 2010, Michele and Anthony filed an objection to Brandy's motion for DNA testing. They argued Illinois law provides a strong presumption of legitimacy for any child born during a marriage. They also attached the evidence deposition of their mother, which they argued conclusively established Anthony was the son of Howard. They also stated Brandy had a pecuniary interest to make false claims regarding Anthony's lineage. In addition, they stated Krista Kohn lived with Brandy and shared the same bed. Further, they argued the physical evidence Brandy alleged she took from her father's residence was not readily identifiable and was susceptible to tampering. In addition, they stated Brandy would be unable to establish an adequate chain of custody with respect to the evidence. Finally, they stated Florence knew Anthony Schaffer personally, "had a good association with him[,] and would have had no reason to exclude him from the beneficial effects of her will." Anthony stated in an attached affidavit he had no reason to believe he was not Howard Schaffenacker's son.

¶ 8 On September 8, 2010, the trial court denied Brandy's request for DNA samples from Anthony and Michele, but granted Brandy leave to file an amended motion. The court stated:

"I don't believe it's necessary, and this is subject to further argument if the parties wish. I don't believe it's necessary for Brandy Mondry at this point in time [to present evidence] sufficient to rebut the presumption of paternity when requesting leave to conduct [Rule] 215 testing. I believe that there does need to be some basis for the request though. And that's where I say the motion needs to establish the necessity for this type of testing."

In September 2010, Brandy filed an amended motion for determination of heirship suggesting Genelex as the laboratory to be used for the DNA testing. In November 2010, Brandy filed a second amended motion for determination of heirship, describing the DNA review process in more detail.

ΒΆ 9 On December 23, 2010, the trial court heard arguments on Brandy's second amended motion. At the hearing, the trial court and ...


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