People ex rel. Hughes v. Walker

278 Ill. App. 3d 116
CourtAppellate Court of Illinois
DecidedFebruary 29, 1996
DocketNo. 4 — 95 — 0453
StatusPublished
Cited by11 cases

This text of 278 Ill. App. 3d 116 (People ex rel. Hughes v. Walker) 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
People ex rel. Hughes v. Walker, 278 Ill. App. 3d 116 (Ill. Ct. App. 1996).

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

In July 1994 the respondent Troy Walker appeared in a paternity action filed by the Illinois Department of Public Aid (Department) on behalf of Debra Hughes and her minor child. Counsel was appointed for defendant and blood tests ordered at that time. Deoxyribonucleic acid (DNA) analysis of the blood samples of Walker, Hughes and the minor child showed a combined paternity index of 594 to 1 and a probability of paternity in Walker of 99.83% as compared to an untested, unrelated male of the North American black population. The test results were sent to Walker and filed with the court. The Department filed a motion for summary judgment supported by the affidavit of Hughes asserting that during the period of probable conception she had had sexual relations with no one but Walker.

Although Walker did not appear personally, his counsel appeared at the March 9, 1995, hearing on the motion. Summary judgment on the issue of Walker’s paternity was entered over counsel’s objection, although the nature of the objection is not of record. Issues of support and reimbursement claims were continued until April 6, 1995. On that date, only Walker’s counsel appeared and a "Body Attachment” for Walker was issued. At a hearing held May 4, 1995, Walker presented a "Petition to Vacate Summary Judgment” pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2— 1401 (West 1994)). The petition alleged that had Walker been present on March 9, evidence would have been presented rebutting Hughes’ statement that she had sexual relations with Walker and no one else during the relevant period. Defendant’s attached affidavit asserted Hughes told him she had sexual relations with a man other than Walker during the probable period of conception, and that Walker was a student living in Bloomington and could not secure transportation for his court appearances in March and April 1995. Also submitted was an unsworn letter of a third party asserting that Hughes had stated she had sexual relations with another male during the same time she had relations with Walker and Hughes had told both men each had fathered the child.

The court denied the "Petition,” finding Walker had not shown due diligence or a meritorious defense. The court also entered temporary orders for support and withholding. Defendant appeals, arguing the court abused its discretion in failing to vacate summary judgment, arguing that he had shown both due diligence and a meritorious defense. We disagree, but affirm for reasons other than those stated by the trial court. See Board of Directors of Olde Salem Homeowners’ Association v. Secretary of Veterans Affairs (1992), 226 Ill. App. 3d 281, 285, 589 N.E.2d 761, 764 (reviewing court may affirm the entry of summary judgment upon any ground warranted, regardless of whether the trial court relied upon it and regardless of whether the reason the trial court gave was correct).

We initially note our agreement with the State’s contention that Walker’s "petition” should be viewed as a motion for reconsideration of summary judgment on the issue of paternity rather than a request for relief as to final judgments pursuant to section 2 — 1401 of the Code. In an action under the Illinois Parentage Act of 1984 (Act) (750 ILCS 45/1 et seq. (West 1994)), a finding of paternity alone is not a final order because it does not dispose of all matters in dispute. (See Deckard v. Joiner (1970), 44 Ill. 2d 412, 417, 255 N.E.2d 900, 903; People ex rel. Driver v. Taylor (1987), 152 Ill. App. 3d 413, 415, 504 N.E.2d 516, 517.) Even though summary judgment may be entered as to paternity, it is an interlocutory order and the final judgment is not entered until an order of support is made. (Taylor, 152 Ill. App. 3d at 415, 504 N.E.2d at 517.) The circuit court has inherent authority to modify or vacate an interlocutory order granting summary judgment at any time before final judgment. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 213, 531 N.E.2d 1358, 1363; 735 ILCS 5/2 — 1005(c) (West 1994).) Therefore, since summary judgment on the issue of paternity was merely interlocutory, no final judgment had been entered and Walker’s petition to vacate was procedurally improper. In accordance with the State’s suggestion, we will construe the petition as a motion for reconsideration of summary judgment.

The State is incorrect, however, in its assertion that review is based on abuse of discretion. In an appeal from a grant of summary judgment, review is de novo, independent of the trial court’s reasoning on the issue presented. (Crum & Forster Managers Corp. v. Resolution Trust Corp. (1993), 156 Ill. 2d 384, 390, 620 N.E.2d 1073, 1077.) Summary judgment is an appropriate measure where there are no genuine issues of material fact and the moving party is entitled to judgment as a'matter of law (735 ILCS 5/2 — 1005(c) (West 1994); Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871), but where a reasonable person could draw divergent inferences from undisputed facts, summary judgment should be denied. Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209.

Pursuant to section 11(f)(4) of the Act, if the alleged father is not excluded and the combined paternity index is at least 500 to 1, the alleged father is presumed to be the father, and this presumption can only be rebutted by clear and convincing evidence. (750 ILCS 45/ 11(f)(4) (West 1994).) Walker argues he has shown due diligence in presenting his "Petition” to vacate less than two months after summary judgment was entered and suggests that if the facts alleged in the affidavit had been known prior to the entry of summary judgment, they would have been presented. This statement, however, belies the contention of the petition that "had the defendant been present in court on March 9, 1995, evidence would have been submitted to rebut Debra Hughes’ sworn statement” that she had sexual relations only with Walker during the probable period of conception.

In any event, this contention has little, if any, relevance to the question before this court. The issue is whether Walker has presented a genuine issue of material fact rebutting the presumption. Walker alleges that the existence of another male having sexual relations with Hughes during the probable period of conception creates a "meritorious defense.” In support of this view he cites In re Marriage of Tzoumas (1989), 187 Ill. App. 3d 723, 543 N.E.2d 1093, a case we find distinguishable on its facts.

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Bluebook (online)
278 Ill. App. 3d 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-hughes-v-walker-illappct-1996.