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In Re G.M., A Minor A.M v. E.M.B. and F.J.M

March 12, 2012

IN RE G.M., A MINOR A.M.,
PETITIONER-APPELLANT,
v.
E.M.B. AND F.J.M.,
RESPONDENTS-APPELLEES.



Appeal from the Circuit Court of Boone County. No. 09-F-49 Honorable Brendan A. Maher, Judge, Presiding.

The opinion of the court was delivered by: Justice Hudson

JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.

OPINION

¶ 1 Petitioner, A.M., appeals the dismissal of her petition to establish the paternity of her son, G.M. She contends that the trial court erred in concluding that the petition was barred by a two-year statute of limitations. We reverse and remand.

¶ 2 We briefly summarize the facts as alleged in the petition. Petitioner was married to respondent F.J.M., but theirs was an "open" marriage in which they engaged in sex with other couples. During November 2006, petitioner engaged in sex with her husband. Also around that time, petitioner and her husband met respondent E.M.B. and his wife, S.B. The couples met at E.M.B.'s home around Thanksgiving 2006. On that occasion, petitioner had sex with E.M.B., although she did not think that he ejaculated inside her.

¶ 3 In January 2007, petitioner discovered that she was pregnant. At a Super Bowl party in February 2007, petitioner announced that she was 11 weeks pregnant. Petitioner gave birth to G.M. on July 31, 2007. At first the child resembled F.J.M., but, as he grew older, he began to resemble E.M.B.

¶ 4 On May 19, 2009, petitioner filed a petition to determine a parent and child relationship. The petition named E.M.B. as the father. It named F.J.M. as a respondent only because he is G.M.'s putative father by virtue of his marriage to petitioner.

¶ 5 F.J.M. moved to dismiss the petition, alleging that it was barred by the two-year limitations period in section 8(a)(3) of the Illinois Parentage Act of 1984 (the Act) (750 ILCS 45/8(a)(3) (West 2008)). That section provides that an action to declare the nonexistence of a parent-child relationship must be filed within two years after the petitioner learns "relevant facts." 750 ILCS 45/8(a)(3) (West 2008). F.J.M.'s motion argued that petitioner "knew" sometime in early 2007 that E.M.B. might be G.M.'s father. The motion included e-mails between petitioner and E.M.B. discussing whether he was the child's father.

¶ 6 The trial court found that, before E.M.B. could be declared the father, petitioner first had to establish that her husband was not in fact the father. Thus, the two-year statute of limitations governing actions to establish the nonexistence of a parent-child relationship applied. The court held an evidentiary hearing to establish when petitioner learned the "relevant facts." At the hearing, petitioner took the position that she did not know the relevant facts until April 2008, when she performed a DNA test, or, at the earliest, late 2007, when G.M. first began to resemble E.M.B. The trial court granted the motion to dismiss, and petitioner appeals.

¶ 7 Petitioner contends that the trial court erred by dismissing her petition as barred by the statute of limitations. We agree that the trial court improperly dismissed the petition, but not for the reasons petitioner asserts. See Halpin v. Schultz, 234 Ill. 2d 381, 390 (2009) (rule that points not argued in appellant's brief are forfeited is an admonition to the parties rather than a limitation on a court of review; reviewing courts may look beyond considerations of forfeiture in order to maintain a sound and uniform body of precedent or where the interests of justice so require).

¶ 8 To explain our conclusion, we first briefly summarize the Act's relevant provisions. Section 7 of the Act essentially creates two distinct causes of action. It provides for an "action to determine the existence of [a] father and child relationship" (750 ILCS 45/7(a) (West 2008)) as well as an "action to declare the non-existence of [a] parent and child relationship" (750 ILCS 45/7(b) (West 2008)). Section 8 of the Act provides radically different limitations periods for the two types of actions. An action to declare the existence of a father and child relationship, with exceptions not relevant here, "shall be barred if brought later than 2 years after the child reaches the age of majority." 750 ILCS 45/8(a)(1) (West 2008). However, an action to declare the nonexistence of a parent and child relationship "shall be barred if brought later than 2 years after the petitioner obtains knowledge of relevant facts." 750 ILCS 45/8(a)(3) (West 2008). Thus, a paternity action under section 7(a) effectively has a 20-year limitations period: a party can bring an action any time up to 2 years after the minor reaches the age of majority. However, a "non-paternity" action under section 7(b) must be brought within two years after the petitioner learns the "relevant facts."

¶ 9 The parties and the trial court have proceeded on the assumption that the petition was a section 7(b) petition to declare the nonexistence of a parent and child relationship, subject to the two-year limitations period. The parties' appellate arguments are devoted to the question of when petitioner knew sufficient "relevant facts" to conclude that E.M.B. was G.M.'s father. However, as we explain below, the petition was one to establish a father-child relationship, and it was therefore subject to the 20-year limitations period of section 8(a)(1).

¶ 10 The trial court dismissed the action pursuant to section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 2010)). We review de novo the dismissal of an action pursuant to section 2-619. Helping Others Maintain Environmental Standards v. Bos, 406 Ill. App. 3d 669, 681 (2010).

¶ 11 Resolving this issue requires us to construe section 8 of the Act. The fundamental rule of statutory construction is to ascertain and give effect to the legislature's intent. People v. Blair, 215 Ill. 2d 427, 442 (2005). The best indication of the legislature's intent is the language of the statute, given its plain and ordinary meaning. Id. at 442-43. The construction of a statute, too, is a legal question ...


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