Denofrio v. Kuc

558 N.E.2d 1355, 201 Ill. App. 3d 810, 146 Ill. Dec. 1021, 1990 Ill. App. LEXIS 1124
CourtAppellate Court of Illinois
DecidedAugust 1, 1990
DocketNo. 1-87-3827
StatusPublished
Cited by9 cases

This text of 558 N.E.2d 1355 (Denofrio v. Kuc) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Denofrio v. Kuc, 558 N.E.2d 1355, 201 Ill. App. 3d 810, 146 Ill. Dec. 1021, 1990 Ill. App. LEXIS 1124 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Petitioner, Mark Denofrio, appeals from an order of the circuit court of Cook County which dismissed his petition to establish paternity rights with D.A., a minor child. The petition was dismissed on the ground that it was barred by the two-year limitations period set forth in section 8 of the Illinois Parentage Act of 1984 (the Act) (Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)). On appeal petitioner claims that the statute is unconstitutional; that he was entitled to an evidentiary hearing; and that the guardian ad litem (GAL) did not act in the best interests of the minor.

Petitioner’s statement of facts does not comply with Supreme Court Rule 341(e)(6) in that the facts are not set forth “without argument or comment.” (113 Ill. 2d R. 341(e)(6); Wald v. Chicago Shippers Association (1988), 175 Ill. App. 3d 607, 529 N.E.2d 1138.) He also has failed to cite record citations. (113 Ill. 2d R. 341(e)(6).) While we point out these violations, they will not preclude our review of the issues on appeal in this instance.

D.A. was born on June 7, 1981, to Janice A., who died on February 22, 1986, in a CTA train accident. D.A. has been in the custody of Ronald Kuc, respondent and former husband of Janice A., throughout these proceedings. Both petitioner and respondent sought to establish a father-child relationship with D.A. and sought permanent custody of the child. Respondent was declared the child’s father by a judgment on November 20,1987.

Petitioner initially filed a custody petition for D.A. on May 16, 1986. By an agreed order he was allowed to amend, and he filed a parentage petition on his behalf on July 10, 1986. Respondent filed a custody petition and an affirmative defense. He eventually filed a parentage petition on his behalf on June 25, 1987.

Petitioner claimed to be the child’s father because he lived with Janice A. from June 1, 1980, until August 1, 1982, and had sexual intercourse with Janice A. during which time D.A. was conceived. Petitioner also claimed that Janice A. told him that he was the father. D.A. was baptized with his surname. Petitioner also claimed that he had visitation with the child when Janice A. was alive, and he contributed to the child’s support.

Respondent claimed that he was the child’s father because he and Janice A. had sexual intercourse in August and September 1980, during which time D.A. was conceived. They were married at that time and thus respondent said that he was presumed to be D.A.’s father under section 5 of the Parentage Act even though the judgment of dissolution entered on September 22, 1980, stated that Janice A. was not pregnant. (Ill. Rev. Stat. 1985, ch. 40, par. 2505.) He was also named as D.A.’s father on an amended birth certificate. Respondent further claimed to have had visitation with D.A. while Janice A. was alive, and he said that he contributed to the child’s support.

Pursuant to petitioner’s motion, the court ordered paternity blood tests of petitioner, respondent and D.A. After petitioner sought to be named as the child’s guardian, the court, appointed a GAL for the child who was also to act as her attorney. The GAL filed a parentage petition on D.A.’s behalf against both men. Count I alleged that respondent was her father, and count II alleged that petitioner was her father. Both men answered in the affirmative to the allegations pertaining to him. Petitioner also filed an affirmative defense to count I and a counter-parentage petition.

Both respondent and the GAL filed motions to dismiss petitioner’s parentage petition on the ground that the statute of limitations of the Act barred the latter’s claim. (Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)(2).) Following a hearing on August 13, 1987, the court granted respondent’s motion to dismiss but also dismissed respondent’s parentage petition on its own motion because it too was barred by the statute of limitations.

Respondent filed a motion for psychological evaluation of petitioner and the child, but later withdrew it. The child was examined by Dr. Vita Krall, a psychologist, in July 1987 apparently after the GAL consented to the evaluation.

The GAL filed motions to dismiss petitioner’s counter-parentage petition and to voluntarily dismiss count II of D.A.’s parentage petition against petitioner. He claimed that it was in D.A.’s best interests to dismiss the petition against petitioner, and in support thereof attached an affidavit by Dr. Vita Krall. Dr. Krall had examined D.A. in July 1987 and found that she identified respondent as her psychological father; that she had no significant relationship with petitioner; and that she would suffer extreme, long-term, adverse psychological consequences if removed from respondent’s custody.

Pursuant to petitioner’s petition to disqualify the GAL, the court held a hearing on September 14, 1987. It found that the GAL had acted properly and in D.A.’s best interests. The court then found that petitioner’s counter-parentage petition was barred by the statute of limitations and dismissed count II of D.A.’s parentage petition against petitioner without prejudice. An order was entered on September 22,1987.

Subsequently, petitioner filed a petition to intervene, a complaint for declaratory judgment and preliminary injunction, and a formal demand upon, the court and the GAL to be named as the putative father. He attached the blood test results and paternity index to his demand. The court denied these pleadings in its order of November 20, 1987.

The record indicates that a hearing was held on November 10, 1987, wherein a prove up on the GAL’s motion for judgment on the pleadings was heard. There is no report of proceedings for this hearing on appeal.

Two judgment orders were entered on November 20, 1987, following a hearing. In one order respondent was declared D.A.’s father and awarded sole care, custody, control and education of her as being-in her best interests. The other order denied petitioner’s petition to intervene and other pleadings and provided that the GAL’s motion for judgment on the pleadings was granted. Fees and costs for the GAL were assessed. Petitioner appealed on December 18,1987.

Prior to addressing the merits on appeal, we must determine whether the appeal has been properly taken in order to invoke this court’s jurisdiction, although none of the parties have raised the issue. (Deerfield Management Co. v. Ohio Farmers Insurance Co. (1988), 174 Ill. App. 3d 837, 529 N.E.2d 243.) We note that petitioner’s brief filed on August 11, 1988, failed to comply with Supreme Court Rule 341(e)(4)(ii), effective August 1, 1988, in that his appellate brief contained no statement of jurisdiction. (134 Ill. 2d R. 341(e)(4)(ii); Voiland v. Warsawsky (1989), 182 Ill. App. 3d 332, 538 N.E.2d 764.) The August 13, 1987, order which dismissed petitioner’s parentage petition contained the language “[tjhis is a final and appealable order, and there is no just reason to delay its enforcement.

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Cite This Page — Counsel Stack

Bluebook (online)
558 N.E.2d 1355, 201 Ill. App. 3d 810, 146 Ill. Dec. 1021, 1990 Ill. App. LEXIS 1124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denofrio-v-kuc-illappct-1990.