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Kaull v. Kaull

Court of Appeals of Illinois, Second District

December 22, 2014

MARY K. KAULL, as Trustee of the Barbara B. Kaull Trust u/a/d July 17, 2007, Petitioner-Appellee,
SARAH KAULL, SARAH KAULL, (Mark James Kaull, Respondent-Appellant; Ryan Donald Schrader, a Minor, and Elida Ochoa, as Mother and Next Friend of Ryan Donald Schrader, Respondents)

Modified upon denial of rehearing January 27, 2015

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Appeal from the Circuit Court of Winnebago County. No. 11-MR-594. Honorable Lisa R. Fabiano, Judge, Presiding.


In an action by the trustee of decedent's trust seeking to determine the beneficiaries of the trust, respondent was properly held in contempt for refusing to submit a DNA sample pursuant to Supreme Court Rule 215 for testing to determine whether he was decedent's grandson and a beneficiary of her trust, but based on the finding that respondent acted in good faith in appealing the trial court's decision, the order finding respondent in contempt was vacated.

Richard B. Kirk and Michael J. Schirger, both of Schirger Law Offices, LLC, of Rockford, for appellant.

Laura D. Mruk, of WilliamsMcCarthy LLP, of Rockford, for appellee Mary K. Kaull.

Nicholas O. Meyer, of Meyer & Horning, P.C., of Rockford, for appellees Elida Ochoa and Ryan Donald Schrader.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Clifford W. Berlow, Assistant Attorney General, of counsel), for appellee Illinois Attorney General.

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Spence concurred in the judgment and opinion.



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[¶1] This action was brought by Mary K. Kaull (Mary), as the trustee of the Barbara B. Kaull Trust, to identify beneficiaries of the trust. Respondent Mark James Kaull (Mark James) was held in contempt of court for his refusal to submit a DNA sample, which the trial court ordered pursuant to Illinois Supreme Court Rule 215 (eff. Mar. 28, 2011) in order to determine whether respondent Ryan Donald Schrader (Ryan) and Mark James have the same biological father, Mark Kaull. On appeal, Mark James argues that he acted in good faith in refusing to submit a DNA sample on the grounds that: (1) Rule 215 is facially unconstitutional because it no longer requires a showing of " good cause" ; (2) section 9(a) of the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/9(a) (West 2010)) applies to this case to the exclusion of Rule 215; (3) inherited characteristics are not " physical conditions" within the meaning of Rule 215; and (4) the motion and the trial court's order for DNA testing did not comply with Rule 215. For the following reasons, we affirm.


[¶3] The record reflects that Barbara B. Kaull passed away on March 16, 2011. Prior to her death, Barbara established the Barbara B. Kaull Trust, which stipulated that after her death the trust assets were to be divided " into separate shares equal in value, one for each then living child of mine and one for the descendents, collectively, of each deceased child of mine." Barbara had three children: Mary, Sarah, and Mark Kaull. Mary became trustee of the trust on April 13, 2011. Mark Kaull predeceased Barbara. There is no dispute that Mark James is Mark Kaull's son. At issue in this case is whether Mark James is Mark Kaull's only son.

[¶4] This case began on September 29, 2011, when Mary, in her capacity as trustee, filed a " Petition for Instructions" seeking a judicial determination as to the proper beneficiaries and administration of the trust. In the petition Mary stated that there was a bona fide doubt as to whether Mark James is Mark Kaull's only child. Mary alleged that a bona fide doubt existed because on March 4, 2010, the Texas Attorney General filed a " Petition to Establish the Parent-Child Relationship" between Mark Kaull and Ryan. The Attorney General alleged that Mark Kaull was Ryan's father. A hearing on the petition was scheduled for August 6, 2010. However, Mark Kaull died on April 3, 2010. On the date the petition was to be heard the Attorney General dismissed the petition without prejudice.

[¶5] Elida Ochoa, Ryan's mother, responded to the petition on behalf of her son. In the response, Elida alleged that Ryan was Mark Kaull's son and Mark James' brother and therefore an heir of Barbara and a beneficiary of the Barbara B. Kaull Trust. She admitted that she had been married to Ralph Hans Schrader and that Ralph was listed as Ryan's father on his birth certificate. However, she stated that she and Ralph had been living separate and apart since June 2008 and were divorced on May 20, 2009. Ryan was born on August 19, 2009, in Texas.

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[¶6] Elida attached several exhibits to the response, including her affidavit in which she alleged that Mark Kaull was Ryan's biological father. Elida also stated that a DNA home paternity test sent to the Identigene DNA Testing Center in Salt Lake City, Utah (Identigene), excluded Ralph and confirmed Mark Kaull as Ryan's biological father. A copy of the report was attached to the response.

[¶7] Also attached to the response was a handwritten notarized document entitled " Deposition by Ralph Schrader," which he signed. In the document, Ralph stated that he was married to Elida when Ryan was conceived but had not been living with her since June 2008. Ralph stated that he lived in Illinois and Elida lived in Texas. Ralph also stated that " on or about November 12, 2009" he participated in a DNA test with Ryan and Elida, that Mark Kaull was also present, and that Mark also conducted a similar test. Ralph stated that the results of his DNA test indicated that he could not be Ryan's natural father. Ralph further stated that Mark Kaull told him that he had a sexual relationship with Elida and that the DNA test indicated that he was Ryan's natural father. Ralph said that Mark Kaull told him that he was paying bi-weekly child support for Ryan and intended to " fulfill all usual fatherly duties."

[¶8] The DNA report from Identigene stated that 99.9% of Caucasian men were excluded from paternity and that Mark Kaull could not be excluded as Ryan's father. The report also stated that the " transport and testing" were not performed in compliance with established chain-of-custody guidelines.

[¶9] Elida also attached a handwritten note to the response to the petition. The note was purportedly signed by Mark Kaull and stated:

" I, Mark M. Kaull, am giving Elida Schrader $500 per month for the support of our son
Ryan D. Schrader. Sincerely, Mark Kaull."

[¶10] Mark James also filed a response to the petition. In his response, he denied that Ryan was Mark Kaull's child. He also alleged that he was Mark Kaull's only child.

[¶11] On February 24, 2012, Mark James filed a motion for judgment on the pleadings pursuant to section 2-615(e) of the Code of Civil Procedure. 735 ILCS 5/2-615(e) (West 2010). In the motion, Mark James argued that Mary's petition put Ryan's parentage at issue and therefore the provisions of the Parentage Act applied. 750 ILCS 45/9(a) (West 2010). He argued that Mary did not have standing under the Parentage Act, because she did not have custody of Ryan and was not providing financial support to him. He also argued that he was entitled to judgment on the pleadings because Elida had not rebutted the presumption of paternity by clear and convincing evidence as required under the Parentage Act. 750 ILCS 45/5(b) (West 2010). He requested that the trial court " instruct that petitioner, Mary K. Kaull, and respondents Sarah Kaull and Mark James Kaull, are the only beneficiaries of the Barbara K. Kaull Trust, and [direct] petitioner to distribute the trust estate according to the terms of the trust."

[¶12] Mary filed a response to Mark James' motion for judgment on the pleadings. In her response, she asserted that her petition was proper and that the Parentage Act did not apply to a determination of heirship. Elida and Ryan also filed a response to Mark James' motion as well as a counterpetition for declaratory judgment. On May 8, 2012, the trial court denied Mark James' motion and found that

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Mary had standing to bring her petition for instructions.

[¶13] On November 30, 2012, Elida and Ryan filed a motion for a DNA test pursuant to Rule 215. In the motion, they stated that a bona fide doubt existed as to whether Mark Kaull was the biological father. Elida and Ryan also alleged that sufficient facts existed to establish good cause to order Mary and Mark James to submit to DNA testing. They further alleged that a positive DNA test would be substantial proof that Mark James and Ryan were biological siblings. Mary and Mark James were granted leave to file a response on or before January 11, 2013. Argument on the motion was scheduled for January 25, 2013.

[¶14] On January 23, 2013, Mark James filed an objection to Elida and Ryan's motion for DNA testing as well as a " Notice of Filing Rule 19 Notice of Claim of Unconstitutionality." The notice was sent to the attorneys for Mary, Mark James, and Ryan and the Illinois Attorney General. Mark James objected to the motion on the following grounds:

1. The motion does not suggest the identity of the examiner, nor does it set forth the examiner's specialty or discipline;
2. The motion does not state that counsel have attempted to resolve this dispute prior to court intervention as Illinois Supreme Court Rule 201(k) (eff. Jan. 1, 2013) mandates;
3. Even if otherwise sufficient, the evidence in this matter is not persuasive and credible enough to support it;
4. Rule 215 does not apply to paternity issues, because a familial relationship is not a " physical condition" ;
5. Rule 215 is unconstitutional on its face because it no longer requires that movants show even good cause.

[¶15] On January 25, 2013, the trial court heard arguments on the motion for DNA testing. Counsel for Ryan and Elida argued that the application of Rule 215 in paternity actions had been approved by the appellate and supreme courts. Counsel also argued that the rule no longer set out a requirement of good cause or a burden of proof and that it just gave the court discretion on whether to order an examination. Counsel argued that it was unclear whether courts would still require a " good cause" showing, but if there was such a requirement there was enough evidence here to warrant compelling both Mary[1] and Mark James to submit to a DNA test.

[¶16] Counsel for Mark James acknowledged that " the court most likely is bound by rulings of the supreme court that [Rule] 215 does authorize trial courts to order DNA tests." However, he maintained that Rule 215 was unconstitutional " under the Illinois Constitutional invasions of privacy without any showing of cause whatsoever." Counsel argued alternatively that the standard that should be applied is " credible, persuasive evidence" pursuant to Jarke v. Mondry, 2011 IL App. (4th) 110150, 958 N.E.2d 730, 354 Ill.Dec. 798. Counsel argued that the evidence was insufficient because in her response to the petition Elida admitted facts that gave rise to a presumption that the " legally presumed father here" was Ralph. Counsel added that the DNA test results submitted by Elida were not admissible, because there was no chain of custody. The trial court commented that Mark James' argument would create a situation where a person had to prove that he was the biological

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father before he could have a DNA test. Counsel argued that, as in Jarke, Elida and Ryan were relying on Mark Kaull's statements to others that he was Ryan's father, which were hearsay. The trial court ruled that the statements were admissible and that counsel could cross-examine the witnesses on whether the statements were actually made.

[¶17] The trial court asked Mark James' counsel whether he was arguing that under Rule 215 the court had discretion to order a DNA test, and counsel replied in the affirmative. The trial court, after conferring with counsel, stated that it would follow Jarke, as it was the only case addressing the issue of what type of showing was required by Rule 215 for ordering a DNA test.

[¶18] Counsel for Ryan and Elida argued that the evidence submitted in support of the motion for DNA testing had not been rebutted and that it was ample to order the test. Counsel also argued that Mark James' fourth-amendment argument was not supported by case law other than criminal cases. Counsel argued that it was a general rule that a DNA test performed by swabbing a person's mouth was not unreasonable. With respect to Mark James' Rule 201(k) argument, the trial court concluded that ordering the test would seem to be " just an exercise in futility" given the fact that Mark James' counsel had stated that he was going to appeal if the court ordered the test. With respect to the technical requirements of Rule 215 (naming the examiner, etc.), counsel for Ryan and Elida stated that there was no prejudice and that he would submit an order that complied with Rule 215.

[¶19] The trial court ruled that it had the discretion to order a DNA test in this situation. The court summarized the evidence and found that it was ample to order the test despite the discrepancies. The court directed the parties to submit an order that fulfilled the requirements of Rule 215. Counsel for Mark James stated, " I do expect we'll refuse to take the test, and I'll ask you, you know, at our next hearing, to give us a good faith contempt and we'll appeal it."

[¶20] On February 1, 2013, Mark James refused to comply with the court's order that he submit to the collection of a DNA sample. The court found him in indirect civil contempt and ordered a penalty of $100 plus $1 per day until his compliance with the order. The court found that his refusal to comply was made in good faith to pursue an appeal of the contempt order. Mark James then filed a timely notice of appeal. On February 8, 2013, Mark James filed a notice to the Illinois Attorney General pursuant to Illinois Supreme Court Rule 19 (eff. Sept. 1, 2006) that he intended to challenge the constitutionality of Rule 215. We granted the Attorney General's motion to intervene on April 13, 2013.


[¶22] We are called upon to determine whether Mark James was justified in refusing to obey the trial court's order requiring him to provide a DNA sample pursuant to Rule 215. Discovery orders are not final orders and are not ordinarily appealable. However, the correctness of a discovery order may be tested through contempt proceedings. Norskog v. Pfiel, 197 Ill.2d 60, 69, 755 N.E.2d 1, 257 Ill.Dec. 899 (2001). We have jurisdiction over this appeal pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Feb. 26, 2010). Review of the trial court's contempt finding requires our review of the order on which it was based. Discovery orders are ordinarily reviewed for a manifest abuse of discretion. Maxwell v. Hobart Corp.,

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216 Ill.App.3d 108, 110, 576 N.E.2d 268, 159 Ill.Dec. 599 (1991). This appeal involves a constitutional challenge to Rule 215 as well as issues of construction of the Parentage Act. These are matters of law, which we review de novo. Clark v. Illinois State Board of Elections, 384 Ill.Dec. 789, 17 N.E.3d 771, 2014 IL App. (1st) 141937, ¶ 15 (constitutionality is a pure question of law, which we review de novo ); Nelson v. Kendall County, 381 ...

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