In Re Marriage of Emerson

450 N.E.2d 987, 115 Ill. App. 3d 712, 71 Ill. Dec. 299, 1983 Ill. App. LEXIS 1939
CourtAppellate Court of Illinois
DecidedJune 16, 1983
Docket82-665
StatusPublished
Cited by14 cases

This text of 450 N.E.2d 987 (In Re Marriage of Emerson) 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
In Re Marriage of Emerson, 450 N.E.2d 987, 115 Ill. App. 3d 712, 71 Ill. Dec. 299, 1983 Ill. App. LEXIS 1939 (Ill. Ct. App. 1983).

Opinion

JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Robert J. Emerson, appeals from an order of the circuit court of Boone County denying his petition in which he sought termination of child support pursuant to section 510 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510) and, alternatively, to vacate portions of a judgment of dissolution pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure (formerly section 72 of the Civil Practice Act). (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401.) We affirm.

Plaintiff married defendant Georgiann Emerson on February 19, 1971, and on June 3, 1971, defendant gave birth to a child, Dawn M. Emerson; the birth certificate listed plaintiff as Dawn’s father. Thereafter, on September 10, 1979, plaintiff filed a petition for dissolution of the marriage in the circuit court which alleged, inter alia, that «*** one (¿¿id has been born of the marriage, to-wit: Dawn M. Emerson, age 8.” Defendant admitted that allegation in her answer to the petition and plaintiff testified accordingly in the dissolution hearing. On December 12, 1979, a judgment of dissolution was entered which found that Dawn M. Emerson had been born of the marriage, her custody was given to defendant and plaintiff was ordered to pay $50 per week for child support. No direct appeal was taken from the judgment nor was a section 72 petition filed within two years thereafter.

On January 12, 1982, plaintiff filed a petition to terminate child support which, as amended, sought in count I to terminate child support pursuant to section 510 of the Act based upon a substantial change in circumstances caused by plaintiff’s alleged discovery that he was not the father of Dawn M. Emerson. On the same grounds, in count II, plaintiff sought to vacate those portions of the decree which established the paternity of Dawn pursuant to section 72 of the Civil Practice Act (now section 2 — 1401 of the Code of Civil Procedure).

At the hearing of the petition, both plaintiff and defendant testified they had first met in October 1970. At that time defendant was married to Ronald Stelling, but that marriage was dissolved on October 30, 1970. Plaintiff and defendant began dating in early November and first had sexual relations in mid-November 1970. Approximately two weeks later, during the first week of December 1970, defendant was advised by her physician that she was three months pregnant. She informed plaintiff of this fact and told him she thought Ronald Stelling was the father. Notwithstanding this situation, the parties married in February 1971. Plaintiff testified he thought there was a possibility that he was the father of the child, but always had doubts and was “reasonably sure” he wasn’t the father. After the child’s birth plaintiff treated her as his child throughout the marriage, the dissolution and thereafter until May 1981. In May 1981 plaintiff had a telephone conversation with defendant in which she informed him for the first time, unequivocally, that he was not Dawn’s father; since that time plaintiff has not seen the child.

The trial court denied plaintiff's petition finding (1) that plaintiff’s prior knowledge of probable nonpaternity and his acknowledgement of the child equitably estops him from now denying paternity; (2) that the prior dissolution decree is res judicata on the issue of paternity; (3) that plaintiff has shown no fraud upon which to base section 72 relief sought more than two years after judgment; and (4) that there was no change of circumstances sufficient to justify relief pursuant to section 510 of the Act.

It is apparent that plaintiff was aware of all of the circumstances surrounding the possible paternity of the child, nonetheless, he married defendant and permitted his name, as father, to be placed on the birth certificate. Plaintiff alleged in his petition for dissolution that Dawn was born of the marriage, testified accordingly at the hearing and acquiesced to the dissolution judgment which established his paternity. Plaintiff thereafter complied with the child-support requirements of the judgment until, more than two years after its entry, he sought to vacate it, in part, solely because defendant had unequivocally stated a fact of which he had been “reasonably sure” since his marriage to her in 1971. Under these circumstances we consider plaintiff estopped to deny paternity of the child as found in the judgment and that determination is res judicata for purposes of his post-decree petition. Fohr v. Fohr (1979), 75 Ill. App. 3d 575, 579, 394 N.E.2d 87, 90; Sanders v. Sanders (1977), 55 Ill. App. 3d 248, 251, 371 N.E.2d 121, 124-25, appeal denied (1978), 71 Ill. 2d 601.

In Fohr, the father filed a post-decree petition seeking to transfer custody of the children from the mother. The mother contended that he was not the actual father of the children notwithstanding that she had sought the judgment which established his paternity. The reviewing court found that the judgment determining parentage was res judicata and that the mother’s efforts in seeking it estopped her from contending to the contrary in order to obtain a present favorable judgment. In Sanders, the same result was reached where the mother sought custody and the father denied maternity. Although in the present case both parties now say plaintiff is not the biological father, plaintiff has not established any facts which would alter the estoppel and res judicata effect of his prior representation to the court or the judgment.

Plaintiff has also failed to establish facts which would entitle him to relief under section 510 of the Illinois Marriage and Dissolution of Marriage Act or section 2 — 1401 of the Code. Section 510 provides, in part:

“the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to the filing of the motion for modification with due notice by the moving party and only upon a showing of a substantial change in circumstances.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 40, par. 510.)

The trial court’s finding whether there has been a substantial change in circumstances warranting modification of child support is one which rests in its sound discretion and will not be reversed absent a showing of an abuse of that discretion. (In re Marriage of Butler (1982), 106 Ill. App. 3d 831, 836, 436 N.E.2d 561, 564-65; Harner v. Harner (1982), 105 Ill. App. 3d 430, 434, 434 N.E.2d 465, 468-69.) Normally, factors to be considered by the trial court in exercising its discretion regarding modification of child support provisions include financial resources of children, financial status of custodial parent, financial resources of noncustodial parent, standard of living the children would have enjoyed in absence of divorce, and physical, emotional and educational needs of the children. (In re Marriage of Butler (1982), 106 Ill. App. 3d 831, 836, 436 N.E.2d 561, 564-65; Runge v. Kohn (1981), 102 Ill. App.

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Bluebook (online)
450 N.E.2d 987, 115 Ill. App. 3d 712, 71 Ill. Dec. 299, 1983 Ill. App. LEXIS 1939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-emerson-illappct-1983.