Street v. Hubert

491 N.E.2d 29, 141 Ill. App. 3d 871, 96 Ill. Dec. 215, 1986 Ill. App. LEXIS 1989
CourtAppellate Court of Illinois
DecidedMarch 6, 1986
Docket85-0615
StatusPublished
Cited by12 cases

This text of 491 N.E.2d 29 (Street v. Hubert) 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
Street v. Hubert, 491 N.E.2d 29, 141 Ill. App. 3d 871, 96 Ill. Dec. 215, 1986 Ill. App. LEXIS 1989 (Ill. Ct. App. 1986).

Opinion

JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Cathleen M. Hubert Street, the natural mother, consented to the adoption of her daughter, Rachel Lillian Hubert. The defendants, Donald and Lillian Hubert, the adoptive parents, were the grandparents of the child as well as the father and mother of the plaintiff. Six years after the adoption was executed, the plaintiff brought this action to set aside the adoption decree and to enforce the terms of which the plaintiff claims was an oral agreement allegedly made between the parties prior to the adoption. The plaintiff sought to have the trial court enforce the adoption agreement, alternatively, that a declaratory judgment finding the adoption decree to be null and void be entered, and finally that the Adoption Act (Ill. Rev. Stat. 1983, ch. 40, par. 1501 et seq.) be declared unconstitutional. On the defendants’ motion, the trial court dismissed those counts of the plaintiff’s amended complaint concerning the issues raised in this appeal.

On June 24, 1974, the subject to this proceeding, Rachel Lillian Hubert, was bom. Two years later, the plaintiff alleges that an oral agreement was made with the defendants in which she consented to the adoption in consideration that the child would be returned to her when she requested, that she be allowed visitation with the child and that at some future date the child would be informed of the true identity of her natural mother.

The adoption decree was entered on July 27, 1978. The plaintiff asserts that she was allowed visitation with the child in accordance with the terms of the alleged oral agreement up until the spring of 1983. At the time the adoption decree was entered under the general limitations statute, an action to set aside an adoption decree could be brought within five years from the date the cause of action accrued. (Ill. Rev. Stat. 1983, ch. 110, par. 13-205, formerly Ill. Rev. Stat. 1977, ch. 83, par. 16.) However, the Adoption Act was amended by Public Act 82 — 225, effective January 1, 1982, to include a provision which required that:

“No action to void or revoke a consent to or surrender for adoption, including an action based on fraud or duress, may be commenced after 12 months from the date the consent or surrender was executed.” (Ill. Rev. Stat. 1983, ch. 40, par. 1513.)

The plaintiff filed her suit on February 22, 1984, nearly six years after the execution of the adoption decree and more than two years after the effective date of the amendment to the Act.

We must first consider the question of whether this action is time-barred under the 1982 amendment to the Act. There are two facets to this analysis. First, this court must determine whether the amendment applies-retroactively. Second, if the amendment is retroactive, does a discovery rule apply in order for the action to avoid being time-barred under the amendment.

Considering the first aspect, we believe that the 1982 amendment applies retroactively to the instant case. As a general rule, an amendment shortening a limitations period or providing one where one previously did not exist is applied retroactively and a plaintiff whose cause of action arose before the amendment will be allowed a reasonable period of time after the effective date of the amendment to bring the action. (Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 420; Moore v. Jackson Park Hospital .(1983), 95 Ill. 2d 223, 230, 447 N.E.2d 408, quoting Hupp v. Gray (1978), 73 Ill. 2d 78, 83, 382 N.E.2d 1211.) A reasonable period of time for bringing suit has been interpreted to mean a period no greater than the repose period itself. (Costello v. Unarco Industries, Inc. (1986), 111 Ill. 2d 476, 483; Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 422; Moore v. Jaekson Park Hospital (1983), 95 Ill. 2d 223, 243-44, 447 N.E.2d 1211 (Ryan, Underwood, Moran, JJ., specially concurring opinion).) For the plaintiff here the reasonable period would have ended no later than one year following the effective date of the 1982 amendment, January 1, 1983. Because the plaintiff’s action was filed on February 22, 1984, nearly two years after the effective date of the amendment, her action must be considered untimely.

To avoid the limitations bar, the plaintiff claims that a discovery rule applies. According to the plaintiff’s argument, the amendment did not begin to run until the spring of 1983 when she first discovered that the defendants allegedly committed fraud in obtaining her consent to the adoption. She maintains that by applying a discovery rule wherein the cause of action did not accrue until the cause of action was discovered, her complaint filed in February 1984 was timely. The only support she cites for the application of a discovery rule to this type of action is the decision of Auer v. William Meyer Co. (1944), 322 Ill. App. 244, 54 N.E.2d 394, which applied a discovery rule to fraud actions in general.

We deem the discovery rule to be inappropriate to the instant action. The discovery rule, which computes the limitations period from the time the plaintiff learns or should have learned of the injury, is a judicially created exception to the traditional rule. (Dolce v. Gamberdino (1978), 60 Ill. App. 3d 124, 127-28, 376 N.E.2d 273.) Whether the discovery rule applies to a particular type of action involves “balancing the increase in difficulty of proof [and the threat of interminable liability] against the hardship to the plaintiff who neither knows nor should have known of the existence of his right to sue.” (Rozny v. Marnul (1969), 43 Ill. 2d 54, 70, 250 N.E.2d 656.) The discovery rule will not be applied where to do so would undermine the purpose of the statute’s time limitations period. (Dolce v. Gamberdino (1978), 60 Ill. App. 3d 124, 128, 376 N.E.2d 273.) We believe that the instant case is a prime example of where to permit the action would frustrate the purpose of the Adoption Act, which is to promote stable family relationships free from unnecessary intrusion. (Lingwall v. Hoener (1985), 108 Ill. 2d 206, 214.) The 1982 amendment to the Act was designed to accomplish this objective by cutting off the prolonged ability of the natural parents to set aside an adoption decree. The legislature sought to eliminate this threat by shortening the period from five years under the general limitations statute to include the instant amendment to reduce the period to one year from the time the adoption decree was executed. If we accepted the plaintiff’s position, allowing an action to set aside an adoption decree from the time of discovery of the fraud would in effect render adoption decrees vulnerable indefinitely to attack. This result would be inconsistent with the aims of the amendment and the overall purpose of the Act.

In this context, we further reject the plaintiff’s additional claim that the amendment in barring her cause of action before it has been discovered violates principles of due process under the Federal and State constitutions. (U.S. Const., amend. XIV; Ill. Const.

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Bluebook (online)
491 N.E.2d 29, 141 Ill. App. 3d 871, 96 Ill. Dec. 215, 1986 Ill. App. LEXIS 1989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/street-v-hubert-illappct-1986.