Galvez v. Rentas

• Court: Appellate Court of Illinois
• Decided: August 10, 2010
• Docket: 1-09-2231 Rel
• Status: Published

Opinion

SECOND DIVISION August 10, 2010

No. 1-09-2231

GUADALUPE GALVEZ, ) Appeal from the ) Circuit Court of Petitioner, ) Cook County ) v. ) ) JOSE RENTAS, ) No. 06 D 80378 ) Respondent-Appellant ) ) Honorable (The Illinois Department of Healthcare and Family ) Patricia M. Logue, Services, Intervenor-Appellee). ) Judge Presiding.

KARNEZIS, J., delivered the opinion of the court:

This appeal arises from an order of the circuit court denying respondent Jose

Rentas’ petition for deoxyribonucleic acid (DNA) testing filed pursuant to section 11(a)

of the Illinois Parentage Act of 1984 (Parentage Act or Act) (750 ILCS 45/11(a) (West

2008)). Rentas filed his petition for genetic testing in response to a 2008 petition filed

by the Illinois Department of Healthcare and Family Services (the Department),

intervening on behalf of petitioner Guadalupe Galvez, seeking retroactive child support

payments. Galvez is the mother of a boy allegedly fathered by Rentas. The court

denied Rentas’ petition for DNA testing on his motion to reconsider, finding his petition

was not timely brought and a previous DNA test and a 2006 parenting agreed order

conclusively established Rentas as the father of Galvez’s son. Rentas argues the court 1-09-2231

erred in denying his petition because (1) section 11 imposes no time limit for genetic

testing in paternity cases and (2) the previous court order establishing his paternity was

not a final and appealable order under section 14 of the Parentage Act (750 ILCS

45/14 (West 2008)) and, therefore, could be modified at any time. We affirm.

BACKGROUND

In 1990, Guadalupe Galvez married Ernesto Nunez. During their marriage, a

daughter was born in 1996 and a son in August 2004. In December 2004, Galvez

petitioned for divorce, asserting two children were born to the parties during the

marriage. In July 2005, she filed an amended petition, claiming that only her daughter

was born to the parties during the marriage. At a hearing on the amended petition,

Galvez testified Nunez was not her son’s father and that Rentas was the father. Nunez

was married to Galvez at the time of the boy’s birth and is, therefore, the boy’s

presumed father pursuant to section 5(a)(1) of the Parentage Act (750 ILCS 45/5(a)(1)

(West 2008)). In re Parentage of John M., 212 Ill. 2d 253, 256 (2004). Galvez

presented the results of an August 2005 DNA test showing a 99.99999% probability

that Rentas fathered the boy. Nunez did not appear and the court entered a default

judgment for dissolution of marriage on November 1, 2005. It ordered Nunez to pay

child support for his daughter and concluded Nunez was not the boy’s father.

In August 2006, Galvez filed a petition to establish parentage and custody and

sought injunctive and other relief. She asked the court to declare Rentas the father of

her son. Galvez claimed that she and Rentas had been involved in an “exclusive

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boyfriend-girlfriend relationship” since February 2000; she became pregnant by Rentas

and gave birth to their son in 2004; she and Rentas were living with their son and had

been taking care of him since his birth; and Rentas took a DNA test in August 2005 and

had accepted paternity of the child. She attached a copy of the 2005 DNA report

showing 99.9999% probability that Rentas was the biological father. Galvez also filed

notice of a motion to present a parenting agreed order. Rentas appeared pro se at the

hearing on the petition and did not contest it.

On September 13, 2006, the circuit court entered the two-part agreed order

(2006 order) presented by Galvez. Galvez and Rentas had signed the agreed order on

March 31, 2006. In the first part, the parenting agreed order, the court declared that

Rentas was the biological and legal father of the child and ordered the boy’s name

changed from Ernesto Nunez, Jr., to Jose Antonio Rentas, Jr. In the second part, the

joint parenting agreement, the court awarded joint legal custody of the child to Galvez

and Rentas, ordered physical custody to remain with the parties at Galvez’s home and

outlined both parents’ rights and responsibilities in rearing Jose Jr.

In January 2007, the Department filed a motion to intervene on issues of child

support, health insurance and parentage on behalf of Galvez because she had sought

and received financial assistance from the Department. It sought reimbursement from

Rentas for child support, asserting Rentas had been declared the boy’s father in the

September 2006 order and child support and medical insurance had not been

addressed. On February 14, 2007, the circuit court granted the Department’s motion to

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intervene but reserved issues of child support and health insurance because Galvez

and Rentas were still living together with Jose Jr.

By late 2008, Galvez and Rentas were living apart. On December 30, 2008, the

Department filed a petition seeking modification of reserved child support and health

care, retroactive to February 2007. In response, on February 27, 2009, Rentas filed a

petition for DNA testing pursuant to section 11 of the Parentage Act. On March 4,

2009, the circuit court denied Rentas’ petition for genetic testing. It noted that a

parentage and joint parenting agreement had been entered in September 2006, the

boy’s birth certificate had been changed from Ernesto Nunez, Jr., to Jose Antonio

Rentas, Jr., and Rentas’ petition for DNA testing was “post-judgment.”

Rentas filed a motion to reconsider. Although the court granted the motion to

reconsider, it again denied Rentas’ petition for genetic testing on July 10, 2009. The

court found that the 2006 order declaring parentage was both an agreed order and a

final order and, could, therefore, only be amended or vacated by either consent of the

parties or timely filing of a petition under section 2-1401 of the Illinois Code of Civil

Procedure (735 ILCS 5/2-1401 (West 2008)) petition, neither of which occurred. It also

found that section 11 does not provide an independent cause of action for genetic

testing but, rather, is a tool available to the court and the parties within the context of a

pending paternity action. Because Rentas could not show a pending, unresolved

paternity action, the court found section 11 was inapplicable. Rentas timely appealed

on August 7, 2009.

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ANALYSIS

The sole issue on appeal is whether the court erred in denying Rentas’ petition

for DNA testing filed pursuant to section 11 of the Parentage Act. We review the

court’s statutory construction of section 11 de novo. People ex. rel. Department of

Public Aid v. Smith, 212 Ill. 2d 389, 396-97 (2004). A fundamental principle of statutory

construction is to view all provisions of an enactment as a whole. J.S.A. v. M.H., 224

Ill. 2d 182, 197 (2007). To determine whether the court erred in denying Rentas’

request for DNA testing, we must examine the Act as a whole, interpreting the words

and phrases in section 11 in light of other relevant provisions of the statute and not in

isolation. J.S.A., 224 Ill. 2d at 197. .

The Parentage Act provides a “ ‘statutory mechanism that serves to legally

establish parent and child relationships in Illinois.’ ” J.S.A., 224 Ill. 2d at 198, quoting

In re Estate of Poole, 207 Ill. 2d 393, 404 (2003). It provides that “[t]he parent and child

relationship *** extends equally to every child and to every parent, regardless of the

marital status of the parents.” 750 ILCS 45/3 (West 2008); J.S.A., 224 Ill. 2d at 198.

Under the Act, legal paternity is established in one of three ways: by presumption (750

ILCS 45/5 (West 2008)), by consent (750 ILCS 45/6 (West 2008)) or by judicial

determination (750 ILCS 45/7 (West 2008)). J.S.A., 224 Ill. 2d at 198.

Rentas was not the presumed father of the boy pursuant to section 5 of the

Parentage Act. He was never married to Galvez, either before or after the boy was

born (presumptions under sections 5(a)(1) and 5(a)(2)). Nor had he and Galvez signed

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“an acknowledgment of paternity in accordance with rules adopted by the ***

Department of Public Aid under Section 10-17.7 of the Illinois Public Aid Code”

(presumption under section 5(a)(3)) or “an acknowledgment of parentage *** in

accordance with Section 12 of the Vital Records Act” (presumption under section

5(a)(4)). 750 ILCS 45/5(a) (West 2008).

Section 10-17.7 of the Illinois Public Aid Code (305 ILCS 5/10-17.7 (West 2008))

and section 12 of the Vital Records Act (410 ILCS 535/12(4) (West 2008)) set forth

similar requirements for the acknowledgment of paternity/parentage. Each requires the

mother and putative father of a child to complete a form stating they are the child’s

parents. Both types of form inform the parents of their rights and obligations are under

the Parentage Act. The parents’ execution of the forms must be witnessed by assorted

officials. Rentas and Galvez did not complete either type of form.

Rentas was not the legal father by consent pursuant to section 6 of the

Parentage Act. Section 6 concerns only relationships established voluntarily by the

signing and witnessing of a voluntary acknowledgment of parentage in accordance with

section 10-17.7 of the Illinois Public Aid Code, Section 12 of the Vital Records Act or

the provisions of the Gestational Surrogacy Act (750 ILCS 47/1 et seq. (West 2008)),

none of which apply here.

Rentas’ paternity was established by judicial determination pursuant to section

7(a) of the Act, upon Galvez’ petition to establish parentage. Section 7(a) provides that

“[a]n action to determine the existence of the father and child relationship, whether or

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not such a relationship is already presumed under Section 5 of this Act, may be

brought by the child; the mother; *** or a man presumed to alleging himself to be the

father or the child or expected child.” 750 ILCS 45/7(a) (West 2008).

Once a petition to establish parentage is filed with the court, the court “shall”

order DNA testing if a party requests it. In re Parentage of Jon M., 212 Ill. 2d at 264;

750 ILCS 45/11(a) (West 2008). Rentas asserts section 11 provides for DNA testing at

any time prior to judgment in a paternity case. He contends the circuit court

erroneously interposed a de facto time limitation in section 11 where none exists and

should have granted his request for a DNA test instead of finding it untimely.

Section 11(a) does indeed provide for DNA testing prior to judgment in a

paternity case. It provides that, “[a]s soon as practicable, the court *** may, and upon

request of party shall, order or direct the mother, child and alleged father to submit to

deoxyribonucleic acid (DNA) tests to determine inherited characteristics. If any party

refuses to submit to the tests, the court may resolve the question of paternity against

that party or enforce its order if the rights of others and the interests of justice so

require.” (Emphasis added.) 750 ILCS 45/11(a) (West 2008). From this language, it is

clear that, where the matter of paternity is unresolved, the court must order a DNA test

if one of the parties requests it. But Jose Jr.’s paternity was not unresolved. The court

made a judicial determination resolving Jose Jr.’s paternity in 2006, when it entered its

order declaring Rentas to be the father of the boy. Accordingly, since the matter of the

boy’s paternity was resolved, Rentas had no right to DNA testing under section 11.

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Rentas argues, however, that the 2006 agreed order establishing his paternity

was not a judgment/final order under section 14 of the Parentage Act (750 ILCS 45/14

(West 2008)) and, therefore, could be modified prior to judgment and did not preclude

his request for DNA testing under section 11. A judgment is a final determination and

official decision of a court with respect to the rights and obligations of the parties to a

lawsuit. Smith, 212 Ill. 2d at 398. A final judgment determines the litigation on the

merits so that, if affirmed, the only thing remaining is to proceed with the execution of

the judgment. Shermach v. Brunory, 333 Ill. App. 3d 313, 316-17 (2002). “An order is

final [when] matters left for future determination are merely incidental to the ultimate

rights that have been adjudicated by the order.” In re T.M., 302 Ill. App. 3d 33, 37

(1998). The court’s 2006 order is a final judgment resolving Jose Jr.’s paternity.

The court entered the 2006 order pursuant to Galvez’s petition requesting the

court to (a) declare that Rentas the father of her son, (b) declare that the boy was to

remain in Illinois pending resolution of all issues and (c) award any other relief the

court deemed equitable. Rentas appeared pro se at the hearing on the petition. He

did not oppose the petition, contest Galvez’s claims regarding the nature of her

relationship with Rentas and his paternity or challenge the validity of the agreed order

or DNA report . Based on this evidence, the court entered the 2006 parenting agreed

order and joint parenting agreement.

The 2006 order was a final judgment. It resolved all issues pending before the

court on Galvez’s petition and set forth the obligations of the parties toward Jose Jr. It

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conclusively established Rentas as Jose Jr.’s biological and legal father, awarded

Rentas and Galvez joint legal and physical custody, ordered that Jose Jr. would remain

with Rentas and Galvez at Galvez’s home in Chicago and set forth Rentas’ and Galvez’

equal responsibilities in providing for the boy’s welfare. Rentas has never moved to

amend or vacate the September 2006 order.

Rentas argues that, because the 2006 order did not explicitly reserve or contain

any prohibitions regarding the duty and amount of child support, it was not a judgment

pursuant to section 14(a)(1) of the Act and could be modified at any time before

judgment. Section 14 sets forth provisions for judgment in parentage cases. 750 ILCS

45/14 (West 2008). Specifically, section 14(a)(1) provides, in pertinent part: “The

judgment shall contain or explicitly reserve provisions concerning any duty and amount

of child support and may contain provisions concerning the custody and guardianship

of the child, [and] visitation privileges with the child *** .” (Emphasis added.) 750 ILCS

45/14(a)(1) (West 2008).

Citing an assortment of cases, Rentas asserts that an order establishing

paternity is not a final order if it does not at least rule on the amount of child support for

which a respondent is liable. See Deckard v. Joiner, 44 Ill. 2d 412, 413-14 (1970)

(order establishing paternity was not final and appealable because child support

requested by mother could not be set due to the father’s unemployment); Shermach,

333 Ill. App. 3d at 317 (appellate court had no jurisdiction to address the merits of

mother’s appeal from orders modifying child custody because orders did not fully

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resolve issue of permanent child support); Baldassone v. Gorzelanczyk, 282 Ill. App. 3d

330, 334 (1996) (order of parentage and temporary child support was not final and

appealable despite a Rule 304(a) (134 Ill. 2d R. 304(a)) finding because order

continued issues of permanent and retroactive child support and medical insurance).

Rentas is correct that a finding of paternity alone is not a final order if it does not

dispose of all matters in dispute. However, the 2006 order did dispose of all matters in

dispute. It addressed the matters raised by Galvez (paternity and nonremoval of the

boy from Illinois) and additional matters such as custody. It did not address child

support because child support was not in dispute. Galvez did not ask for it and Rentas

was not required to pay it because child support is only required from noncustodial

parents. In 2006, Rentas was a custodial parent. He lived with Galvez and Jose Jr.

and, with Galvez, jointly supported the boy. As a custodial parent, Rentas did not have

“any duty” to pay child support. Because Rentas had no duty to pay child support,

there was nothing for the court to address pursuant to section 14(a)(1). It was only

when Rentas moved out of Galvez’s home that child support and medical insurance

became disputed issues pursuant to the Department’s petition to modify child support.

While Rentas lived with Galvez and supported the boy, he had no noncustodial duty of

support that needed to be addressed by the court pursuant to section 14. There is no

language in section 14(a)(1) requiring that a judgment contain a provision addressing

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child support where no such support is due.1

Moreover, even if, as Rentas asserts, the 2006 order was not a final judgment

when entered, it became final when the court entered the February 2007 order

specifically reserving issues of child support and medical insurance. Deckard, 44 Ill. 2d

at 417 (order setting amount of child support rendered final a previous order

establishing paternity which had not been final and appealable because child support

requested by mother had not been set). In January 2007, the Department had moved

to intervene on issues of parentage, child support and health insurance. The court, on

February 14, 2007, issued an order stating a parentage order and joint parenting

agreement had been entered in September 2006 and “issues of support and medical

are hereby reserved as the parties are currently living together.” The court’s 2007

reservation of the issue of child support clearly met the section 14(a)(1) requirement

that a judgment must contain a provision addressing “any duty” of child support. The

2006 judgment became final at that point.

1 The 2006 order did not specifically state that, because Rentas was a custodial

parent, no child support was due from him at that time. However, such can clearly be

inferred from the fact that the court stated the parties were living together with their son

in Galvez’s home, physical custody of the boy would “remain with the parties” at

Galvez’s home and the parties had joint legal custody of the boy, “with equal rights and

responsibilities regarding the rearing and overall well-being of Jose Jr.”

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The case pending before the court, the case in which Rentas filed his request for

DNA testing pursuant to section 11(a), is not an unresolved paternity case. The

September 13, 2006, order of the circuit court conclusively established Rentas’

paternity of Jose Jr. A court loses jurisdiction 30 days after the entry of a final order. In

re Parentage of G.E.M., 382 Ill. App. 3d 1102, 1118 (2008). To vacate a court order

after 30 days, the movant must bring a section 2-1401 petition within two years of entry

of the order. In re Parentage of G.E.M., 382 Ill. App. 3d at 1118. Rentas did not move

to amend or vacate the September 2006 order within 30 days nor did he timely file a

section 2-1401 petition. Instead he filed a request for a DNA test some three years

after entry of the judgment. That request should have been filed during the proceeding

to establish parentage in 2006 or before the 2006 order became final. The case before

the court now is limited to determinations of child support and health insurance.

Although a parentage order may become final, pursuant to the Act, the court has the

continuing jurisdiction to modify an order for support, custody, visitation or removal

included in a judgment entered under the Act. 750 ILCS 45/16 (West 2008). Such is at

work here, where the Department filed for modification of the existing order reserving

child support on behalf of Galvez. The court did not err in denying Rentas’ untimely

post judgment request for a DNA test pursuant to section 11(a) of the Act.

For the reasons stated above, we affirm the decision of the circuit court.

Affirmed.

HOFFMAN and THEIS, JJ., concur.

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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to be Attached to Each case)

GUADALUPE GALVEZ,

Petitioner,

v.

JOSE RENTAS,

Respondent-Appellant

(The Illinois Department of Healthcare and Family Services, Intervenor-Appellee).

Appellate Court of Illinois First District, Second Division

August 10, 2010

JUSTICE KARNEZIS delivered the opinion of the court.

Appeal from the Circuit Court of Cook County.

The Honorable Patricia M. Logue, Judge Presiding.

For APPELLANT: Edward J. Moran, of Chicago

For APPELLEE: Lisa Madigan, Attorney General of the State of Illinois, and Michael A. Scodro, Solicitor General (Jan E. Hughes, Assistant Attorney General, of counsel)