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In re Marriage of Ostrander

Court of Appeals of Illinois, Third District

February 25, 2015

In re MARRIAGE OF JERRY L. OSTRANDER, Petitioner-Appellee, and STARR E. OSTRANDER, Respondent-Appellant

Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. Circuit No. 12-D-957. Honorable Robert P. Brumund, Judge, Presiding.

SYLLABUS

In dissolution proceedings where the paternity of one of the two children respondent mother had during the marriage was disputed, but petitioner husband's motion to declare nonpaternity was untimely and respondent waived the issue, the trial court's order of nonpaternity was reversed, a guardian ad litem was appointed for the child, and the cause was remanded for a hearing on child support.

Mary Beth Szudarek, of Law Offices of Janusonis and Szudarek P.C., of Lockport, for appellant.

Jeannine M. Parker-Ross, of Joliet, for appellee.

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Holdridge and Lytton concurred in the judgment and opinion.

OPINION

Page 699

SCHMIDT, J.

[¶1] Petitioner, Jerry L. Ostrander, filed a petition for dissolution of his marriage to respondent, Starr E. Ostrander. In the petition, Jerry asserted that one of the two children born to Starr during the marriage,

Page 700

R.O., was not Jerry's biological child. After deoxyribonucleic acid (DNA) testing confirmed that Jerry was not the biological father of R.O., Jerry filed a pleading entitled " Motion Regarding Finding No Paternity." The court granted Jerry's motion, finding that Jerry was not R.O.'s biological father and therefore had no support obligation. The court denied Starr's motion to reconsider the order and the judgment of dissolution of marriage. Starr appeals, arguing that Jerry's motion regarding paternity was barred by the relevant statute of limitations. We reverse in part, vacate in part, and remand for further proceedings.

[¶2] FACTS

[¶3] On May 8, 2012, Jerry filed a petition for dissolution of marriage. In the petition, Jerry acknowledged that two children were born to his wife Starr during the time they were married: J.O., born in 1997, and R.O., born in 2004. The petition alleged that " upon information and belief, [R.O.] is not the biological [child] of [Jerry]."

[¶4] In her response, Starr denied that Jerry was not the father of R.O. She asserted that Jerry was indicated as the father on R.O.'s birth certificate and that Jerry had taken no steps to disavow his parentage. Starr sought sole custody of the children as well as support and expenses. In multiple responses to Starr's petitions, Jerry repeatedly averred that only one child had been born to the parties.

[¶5] Jerry and R.O. participated in DNA testing, which established that Jerry was not the biological father. Jerry subsequently filed a " Motion Regarding Finding No Paternity." In the motion, Jerry asked the court to find that he was not the biological father of R.O. and that he owed no duty of support for the child. The motion proceeding to a hearing.

[¶6] At the hearing, Jerry was represented by counsel while Starr proceeded pro se. Starr told the court that both she and Jerry knew immediately that R.O. was not Jerry's biological child: " He knew from the day of conception that it would not be his. We talked about it. We worked things out. We stayed together. He was there in the delivery room. He named her." Jerry did not testify and presented no evidence other than referencing the results of the DNA test. Starr did not object to the results of the DNA test. The court found that Jerry was not the father of R.O., but reserved the issue of child support.

[¶7] The matter went to trial on March 14, 2013. Once again, Jerry was represented by counsel while Starr appeared pro se. Starr reiterated her position regarding ...


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