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In re Custody of C.C.

Court of Appeals of Illinois, Third District

December 9, 2013

In re CUSTODY OF C.C., a Minor
David H.C., Respondent-Appellant Erica L.F., Petitioner-Appellee, Klay B, Intervenor-Appellant

Appeal from the Circuit Court of the 9th Judicial Circuit, Fulton County, Illinois Circuit No. 08-F-68 Honorable Edward R. Danner, Judge, Presiding.

PRESIDING JUSTICE WRIGHT delivered the judgment of the court, with opinion. Justice Lytton concurred in the judgment and opinion.



¶ 1 Petitioner, Erica L.F., initiated this action in 2008 seeking an order determining custody and support for the minor, C.C. Based on Erica's petition, the circuit court of Fulton County issued a paternity order in 2008 determining David H.C. to be the father of C.C. based on Erica and David's voluntary acknowledgment of paternity executed the day after C.C.'s birth. Two years later, the intervenor, Klay B., asked the court to vacate the 2008 order naming David as C.C.'s parent because Klay alleged he was the child's actual biological father. The trial court refused to vacate the 2008 order declaring David to be C.C.'s father, but granted Klay's request to receive court-ordered visitation and his request to be ordered to pay the full statutory percentage of his net income for C.C.'s child support. In 2011, the court further ordered Klay to pay a portion of Erica's attorney fees incurred as a result of Klay's intervention in case No. 08-F-68.

¶ 2 Klay appeals the order requiring him to pay one-third of Erica's attorney fees and refusing to vacate the 2008 order naming David as the legal father of C.C., as requested in Klay's 2009 motion pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2008)). Alternatively, if this court does not set aside the 2008 paternity order naming David as C.C.'s legal father, Klay asks this court to revisit the issue of whether Klay's child support payment should be based on less than 20% of his income since C.C. continues to have another legal father, namely, David.

¶ 3 We reverse the court's award of attorney fees, but decline to address the other issues regarding Klay's section 2-1401 motion and the appropriate percentage for Klay's child support, if any, due to lack of jurisdiction.


¶ 5 In late 2006 or early 2007, Erica had sexual relations with both David and Klay and became pregnant. Erica initially suggested to Klay that he could be the father of her unborn child. However, a week later Erica told Klay a doctor informed her that it was extremely unlikely that Klay was, in fact, the father of her child. Erica gave birth to C.C. on October 18, 2007. The following day, Erica and David signed a voluntary acknowledgment of paternity (VAP), identifying David as the child's biological father.

¶ 6 On June 18, 2008, Erica filed a "Petition for Child Custody and Child Support, " in case No. 08-F-68, requesting the court to enter an order legally designating David as the father of C.C., based on the VAP, pursuant to section 14 of the Illinois Parentage Act of 1984 (the Parentage Act) (750 ILCS 45/14 (West 2008)). On November 6, 2008, the trial court entered an agreed order finding Erica and David to be "the parents of [C.C.], " awarded sole custody to Erica subject to David's scheduled visitation, and settled financial matters such as support, insurance, and tax exemptions.

¶ 7 Erica's relationship with David temporarily ended in 2008. Thereafter, Erica rekindled her relationship with Klay in early 2009, thereby triggering Klay's suspicions that he may be C.C.'s biological father. Consequently, in June 2009, Klay filed a motion, pursuant to section 2-1401, to vacate the orders naming David the father of C.C., in case No. 08-F-68. Klay also initiated an independent action seeking to establish a father-child relationship in case No. 09-F-50 .

¶ 8 On July 9, 2009, Erica filed a motion to strike Klay's section 2-1401 pleading, in case No. 08-F-68, on the grounds that Klay lacked standing to file any pleadings in the paternity action involving David because Klay was not a named party. On July 10, 2009, the trial court granted Klay leave to file a petition to intervene in case No. 08-F-68, and to withdraw his initial section 2-1401 motion. The court also allowed Klay to dismiss his independent parentage action, on July 10, 2009, in case No. 09-F-50.

¶ 9 Next, on July 22, 2009, Klay filed three pleadings in the 2008 paternity action involving David. Klay asserted Erica recently resumed her relationship with David and refused to allow Klay to have continued contact with C.C. Klay's petition to intervene claimed that Erica and David, either fraudulently or based on a material mistake of fact, signed VAP in 2007 for the purpose of depriving Klay of his parental rights to C.C.

¶ 10 Klay's second pleading, a petition to determine the existence of a father-child relationship, asked the court to order deoxyribonucleic acid (DNA) testing to support a subsequent finding that Klay is the biological father of C.C. The petition asked the court to award joint custody to Klay and Erica, naming Erica residential custodian with rights of reasonable visitation for Klay. The petition further requested that the court order C.C.'s last name be changed to Klay's last name. Finally, Klay requested the court to enter an order fixing his child support obligations at "20% of his net income as calculated pursuant to Section 505 of the [Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/505 (West 2008))]."

¶ 11 Klay's third pleading, filed in case No. 08-F-68 on July 22, 2009, was a new motion for relief from judgment pursuant to section 2-1401 of the Code. 735 ILCS 5/2-1401 (West 2008). Klay's motion alleged that Erica and David, either fraudulently or through a mistake of fact, signed the VAP to deprive Klay of his potential parental rights to C.C. Therefore, Klay requested the trial court to vacate the order entered November 6, 2008, finding Erica and David to be the legal parents of C.C., and any subsequent orders related to David being C.C.'s father. Klay alleged Erica did not contact him before David signed the 2008 VAP, the day after C.C.'s birth, and failed to notify Klay when she filed the paternity action against David, in case No. 08-F-68.

¶ 12 On August 18, 2009, Erica filed a response to Klay's motion to intervene. David also filed an answer objecting to Klay's petition to intervene on August 25, 2009. In Erica's response, Erica objected to Klay's standing to intervene. According to Erica, the statute did not allow a third party to come into court and determine the nonexistence of a previously declared legal father of a child. Further, Erica claimed Klay waived the right to seek paternity or challenge the existing paternity of C.C., since he was informed she was pregnant in 2007.

¶ 13 The court held a hearing on Klay's petition to intervene. The court found Klay knew of Erica's pregnancy when it occurred and also found David was adjudicated as C.C.'s father by court order based on a conclusive acknowledgment of paternity. Therefore, the court initially denied Klay's petition to intervene.

¶ 14 One month after Klay sought to intervene in the 2008 paternity action, David ceased paying court-ordered child support. On September 17, 2009, the court entered an order, as agreed by David and Erica, terminating David's obligation to pay any amount of child support to the State disbursement unit because Erica and David were once again residing together and mutually providing for C.C.

¶ 15 Subsequently, on September 24, 2009, Klay filed a motion to reconsider the denial of his petition to intervene. Erica moved to strike this motion to reconsider, and David joined in that motion. After a hearing, on February 5, 2010, the trial court reconsidered its earlier decision and then orally granted Klay's petition to intervene in case No. 08-F-68. The trial court entered a written order memorializing its oral decision on February 18, 2010. The court also allowed the parties to proceed on Klay's petition to establish the existence of a father-child relationship and his section 2-1401 motion.

¶ 16 On April 28, 2010, pursuant to Rule 308 (Ill. S.Ct. R. 308 (eff. Feb. 26, 2010)), the trial court certified two questions for interlocutory appeal to this court: (1) whether the trial court has subject matter jurisdiction to make a determination as to the existence of a father-child relationship between another putative father where a parent-child relationship had previously been established by a VAP; and (2) whether the presumption of paternity created by a VAP is conclusive as to the intervenor pursuant to the Parentage Act (750 ILCS 45/1 et seq. (West 2008)). This court declined to review the certified questions and issued a mandate on August 12, 2010, denying leave to appeal. In the interim, the trial court granted Klay's request for DNA testing on May 10, 2010.

¶ 17 After this appellate court denied the Rule 308 petition for leave to appeal, the court appointed a guardian ad litem (GAL) to represent the child's best interests on August 31, 2010. On December 8, 2010, the court received the DNA test results verifying Klay was the biological father of C.C., but the court did not make a formal finding that Klay was the father of the child at that time. Subsequently, on December 8, 2010, the court held a hearing on Klay's section 2-1401 motion to vacate the 2008 order naming David the father of C.C., as well as Erica's motion to dismiss Klay's section 2-1401 motion.

¶ 18 After previously meeting with Erica, David, Klay, and C.C., the GAL advised the court it was in C.C.'s best interests for all three "parents" to be involved in C.C.'s life for the following reasons. First, C.C. had a close relationship with her mother, who was living with David and the child. Next, David shared a close relationship with C.C. and was the only father figure C.C. had known in her first three years of life. Finally, Klay truly cared about C.C. and he was her biological father.

¶ 19 At the close of the hearing regarding Klay's section 2-1401 motion, the court found that the Parentage Act provided that a VAP established in accordance with statute has the "full force and effect of a judgment entered under this [Parentage Act] and serves as a basis for seeking a Child Support Order without any further proceedings to establish paternity." The court further found that Klay's section 2-1401 motion was, in effect, an attempt to obtain a declaration of the nonexistence of David's parent and child relationship, a cause of action pursuant to section 7(b) of the Parentage Act which can be initiated only by the child, the child's natural mother, or a VAP father. The court concluded that it did not have the authority to grant a third party's section 2-1401 motion under these circumstances, ruling: "The [section 2-1401] motion attempting to invalidate the parent-child relationship established by the VAP is denied." The court further found that no fraud occurred, but there appeared to be a mistake of fact.

¶ 20 After verbally asking Klay about his income in open court, on December 8, 2010, the court temporarily ordered Klay to pay 20% of his income for child support in the amount of $200 per week. Thereafter, on December 28, 2010, the court referred all three parties, Erica, David, and Klay, to attend mediation regarding Klay's visitation schedule with C.C.

¶ 21 On February 14, 2011, following a hearing, the court entered a written order denying Klay's section 2-1401 motion to vacate the 2008 order naming David as C.C.'s father. The court entered a separate written order finding Klay to be C.C.'s biological father and continued the previous order requiring Klay to pay temporary child support at $200 per week pending further review. The order also awarded Klay temporary visitation with C.C. on a biweekly basis, but denied Klay's request to change C.C.'s last name. This order further denied Klay's "prayer that the Court correct 'all erroneous prior orders, findings or documents.' "

¶ 22 On June 29, 2011, Erica filed a petition seeking contribution for payment of her attorney fees from Klay, without reference to David's obligations to share her fees. On July 5, 2011, Klay filed a motion asking the court to find that the statutory guidelines for child support should not apply in the instant case because the child has three legal, able-bodied parents who could support the child.

¶ 23 The court held a hearing on these two motions on July 13, 2011. At the close of the hearing, the court refused to reduce Klay's child support obligation below 20%, denying Klay's motion to deviate downward from the statutory guidelines, and fixed Klay's child support payments at $150 per week, calculated at the rate of 20% of his current net income. The court determined the order setting Klay's temporary child support at a higher rate beginning on December 8, 2010, resulted in Klay's overpayment of $1, 450 in child support to Erica. Accordingly, the court ordered $10 should be deducted each week from Klay's child support until the overpayment was satisfied. The court also entered an "Agreed Visitation Order" at this hearing, which extended Klay's visitation with the minor. At the close of this hearing, the court noted on the record that two remaining matters existed: whether to allow overnight visitation for Klay and how C.C. was responding to the current visitation schedule. The court scheduled a hearing on these two matters for September 19, 2011.

¶ 24 Based on its July 13 oral ruling, the court entered a written "Uniform Order for Support" on July 28, 2011, for wage withholding purposes. The court entered a final written order, on August 5, 2011, reflecting the totality of its oral ruling after the July 13 hearing.

¶ 25 On September 19, 2011, by agreement of the parties, the court entered an order allowing supplemental overnight visitation with C.C. as requested by Klay. In the same order, the court set the hearing date for the GAL's petition for fees and Erica's petition for contribution for her attorney fees for the date of October 17, 2011. On September 19, 2011, Erica also filed a petition to compel Klay to pay one-half of C.C.'s medical and related expenses that were not covered by insurance.

¶ 26 On October 17, 2011, the court entered an order resolving Erica's request for contribution for the child's unpaid medical expenses by requiring both David and Klay to split the additional expenses equally. The court also entered an order requiring Erica to pay $500 of the GAL fees, totaling $4, 088.50, and directed both David and Klay to pay $1, 794.25 each, representing equal shares of the remaining balance. The court's October 17, 2011, order resolved all pending motions and petitions with the exception of Erica's petition for contribution toward her attorney fees filed on June 29, 2011. The court directed Erica's counsel to prepare a written order.

¶ 27 On October 28, 2011, Erica's attorney sent a letter to opposing counsel with the attached proposed order concerning GAL fees for opposing counsel's signature. This letter also proposed a settlement of the issues related to Erica's petition for contribution for attorney fees. In addition, on the same date, Erica's counsel sent all parties a notice of hearing to enter the order from the October 28, 2011, hearing and to schedule the hearing on the issue of attorney fees to be heard by the trial judge on January 11, 2012 at 10 a.m. On January 11, 2012, the matter was rescheduled due to illness of counsel and ultimately reset for entry of an order (from the hearing held on October 28, 2011) and for a hearing on Erica's attorney fees petition on March 7, 2012. On February 27, 2012, the court entered the order reflecting its oral ruling from the hearing on October 28, 2011.

¶ 28 The court received testimony from Erica on March 7, 2012, regarding her petition for contribution toward her attorney fees. Erica testified she was an unemployed college student who lived with, and relied on, David, the VAP father, for her financial support. The evidence showed that, at the time of the hearing, Erica had accumulated $19, 436 in legal fees and paid approximately $3, 000. She alleged she had no ability to pay the remainder of those fees.

¶ 29 David next testified at this hearing, stating his ability to work as a union carpenter was limited by a herniated disk in his back. At the time of the hearing, David's income consisted of gross unemployment compensation of $552 per week and $2, 000 net profit in 2011 from working with his father as a commercial fisherman. David stated he had $4, 000 of outstanding medical bills and roughly $11, 500 in unpaid legal fees, after already paying his attorney approximately $7, 000 to $8, 000.

¶ 30 Klay testified he, too, was receiving unemployment compensation after being laid off as a union carpenter. He currently lived with his fiancée and three small boys, one of whom was his biological son with his fiancée. Klay had $3, 000 of credit card debt for furniture and over $15, 000 in legal fees concerning his paternity status of C.C. He testified he had paid approximately $13, 000 toward his attorney fees at the time of ...

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