Eckberg v. Benso

537 N.E.2d 967, 182 Ill. App. 3d 126, 130 Ill. Dec. 638, 1989 Ill. App. LEXIS 449
CourtAppellate Court of Illinois
DecidedApril 10, 1989
Docket1-87-3493
StatusPublished
Cited by21 cases

This text of 537 N.E.2d 967 (Eckberg v. Benso) 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
Eckberg v. Benso, 537 N.E.2d 967, 182 Ill. App. 3d 126, 130 Ill. Dec. 638, 1989 Ill. App. LEXIS 449 (Ill. Ct. App. 1989).

Opinion

JUSTICE BUCKLEY

delivered the opinion of the court:

Stephen Eckberg (petitioner) appeals the trial court’s denial of his petition to vacate the adoption of his two sons by their mother, Linda Benso, and her husband, Frank Benso (respondents). Three issues are presented for our review: (1) whether petitioner should be precluded by laches from challenging the jurisdiction of the adoption court; (2) whether the trial court erred in finding that the adoption court had jurisdiction to enter the adoption decree; and (3) whether the trial court considered evidence inappropriate to the jurisdictional issue. We affirm.

Petitioner married Linda in Woodhall, Illinois, on April 20, 1968. During their marriage, two sons were born in Galesburg, Illinois: Brian Stephen Eckberg, May 19, 1968, and Brett Alvin Eckberg, April 16, 1970. In February 1974, petitioner and Linda were divorced, with custody of the children awarded to Linda and the issue of child support reserved. In 1983, respondents filed a petition for adoption of the Eckberg children in Cook County, Illinois, along with an affidavit stating that petitioner could not be found and that service was executed by publication in the Chicago Law Bulletin. Petitioner did not respond to the notice, and the adoption decree was entered in June 1983. Petitioner filed a petition to vacate the adoption decree in May 1986.

The evidence adduced at the hearing on this petition revealed the following. From the time of the divorce until the time petitioner filed this action, petitioner and respondents have resided at numerous locations. Petitioner moved shortly after the divorce in 1974 from the marital home in Macomb, Illinois, to Albuquerque, New Mexico, but returned to Macomb in early December 1974. In January 1975, petitioner moved to De Kalb, Illinois, where he worked various jobs and attended Northern Illinois University. In May 1981, petitioner relocated to Hermosa Beach, California, where he resides today.

After a brief stay with her parents following the divorce, Linda and the children moved in with Frank in Crickett Wood Green, Illinois. Thereafter, they moved to Good Hope, Illinois, where they resided until August 1975. At that time, Frank sold his restaurant business and they relocated to Glenwood Springs, Colorado. There, Linda and Frank were married on August 18, 1976, and the children began using the last name of “Benso.” In 1977, the Bensos returned to Illinois to reside in Galesburg, Illinois. A year later, the Bensos moved to Ogden in Champaign County, Illinois, where they resided to the time of the filing of the instant action.

Respondents testified that at the time they filed their adoption petition, they were unaware of petitioner’s whereabouts. In an attempt to locate petitioner, respondents unsuccessfully endeavored to contact petitioner’s brother, a lawyer, by phoning the Illinois Bar Association and checking the Chicago telephone directory. They also sent a certified letter, which was returned to them as undeliverable, to petitioner’s last known address.

Respondents did not attempt to contact petitioner’s parents even though they knew that petitioner’s natural mother was living somewhere around Nashville, Tennessee, that petitioner’s father was a physician who at one time was associated with the hospital where Linda’s mother had also worked, and that petitioner’s father had resided in Galva, Illinois, in 1975. Respondents explained that they believed it would be fruitless to contact petitioner’s father because petitioner had been estranged from him for several years, a conclusion they reached from petitioner’s father’s assertion on a 1975 visit that he was unaware of petitioner’s whereabouts. Linda also stated that she did not have an address for petitioner’s mother but only knew of her approximate whereabouts.

Petitioner and respondents presented conflicting testimony concerning petitioner’s contacts with the Bensos since the 1974 divorce. Respondents testified that with the exception of one $100 payment and a meeting with Linda in a public park in 1974, petitioner has never offered any child support or communicated with respondents until petitioner instituted these proceedings.

Petitioner, on the other hand, recounted the following contacts he had with respondents. During his stay in Albuquerque shortly after the divorce, he remained in telephone contact with Linda. On his return to Macomb, petitioner met Linda in a Macomb park and Linda refused his request to see the children.

After he moved to De Kalb in January 1975, petitioner phoned Linda on several occasions until he discovered in May 1975 that the phone had been disconnected. Linda telephoned him collect in the summer of 1975. From Linda’s statement that she worked at a doctor’s office, from the Glenwood Springs, Colorado, listing for the call on his phone bill, and from his inquiries at all the doctor’s offices in Glenwood Springs, petitioner. located Linda at the doctor’s office where she worked. Although petitioner never learned where the Bensos resided in Colorado, he obtained their post office box number through the efforts of his roommate, Carmen Del Guidice. Petitioner produced postal receipts for two or three packages that he sent to the children at this address.

From the summer of 1975 through March 1977, petitioner and Linda had a number of telephone conversations concerning the children while Linda was at the doctor’s office. Petitioner produced records documenting some of these calls, and petitioner’s 1976-77 roommate testified that on several occasions petitioner indicated that he had recently spoken to his ex-wife. Petitioner’s 1977-80 roommate also testified that in 1978 he received a phone call at their residence from a woman identifying herself as Linda, petitioner’s ex-wife.

In mid- to late 1977, petitioner was informed upon phoning the doctor’s office in Glenwood Springs that Linda had moved. From 1977-85, petitioner did not know the whereabouts of his children. Petitioner unsuccessfully sought information as to their whereabouts between 1977 and 1984 by contacting Linda’s mother. He produced a Christmas card that Linda’s mother had sent to petitioner’s mother in 1980, stating that she was sorry she could not send pictures of the boys in deference to Linda’s wishes.

In 1980, petitioner was informed by his brother, David Eckberg, that the children might be in the Champaign area. Petitioner unsuccessfully attempted to find a phone number from information. He stated that due to his financial limitations, he was unable to make any further efforts in locating his children.

While residing in California in August 1985, David again informed petitioner that the children might be in Champaign. Upon calling information, petitioner learned of an unlisted phone number for a “Frank Benso” in Ogden, Illinois. A couple of months later, petitioner contacted the school and learned that Brian and Brett were both enrolled. In October 1985, petitioner sent a letter to the children at school, but it was returned to him by the superintendent. Petitioner learned through counsel of the Benso’s residence in Ogden, Illinois, in January 1986, and subsequently learned of the adoption in Cook County, Illinois. Petitioner filed the petition to vacate the decree three or four months later.

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Cite This Page — Counsel Stack

Bluebook (online)
537 N.E.2d 967, 182 Ill. App. 3d 126, 130 Ill. Dec. 638, 1989 Ill. App. LEXIS 449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eckberg-v-benso-illappct-1989.