Cook v. Askew

• Decision Date: 10 December 1975
• Docket Number: No. 60566,60566
• Citation: 34 Ill.App.3d 1055,341 N.E.2d 13
• Parties: Edna COOK, Plaintiff-Appellant, v. Joseph L. ASKEW II, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 13

341 N.E.2d 13

34 Ill.App.3d 1055

Edna COOK, Plaintiff-Appellant, v. Joseph L. ASKEW II, Defendant-Appellee.

No. 60566.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 10, 1975.

Mark Pettit, Jr., Gary H. Palm, Robert H. Smith, Chicago, Bruce R. Maughan, Senior Law Student, Mark C. Zaander, Senior Law Student, for plaintiff-appellant.

James J. Doherty, Public Defender, Cook County (Ronald P. Alwin, Dale W. Broeder, Asst. Public Defenders, of counsel), for defendant-appellee.

BURMAN, Justice.

The plaintiff, Edna Cook, commenced this action against the defendant, Joseph L. Askew II, to establish paternity and to obtain support for her two children born out of wedlock under the Illinois Paternity Act. (Ill.Rev.Stat., 1973, ch. 106 3/4, par. 51 Et seq.). The trial court sustained the defendant's motion to dismiss the complaint on the basis that the suit was not brought within the two year period provided in Section 54 of the act. (Ill.Rev.Stat., 1973, ch. 106 3/4, par. 54). On appeal, the plaintiff contends that Section 54 is unconstitutional in light of the equal protection and due process clauses of both the United States and Illinois Constitutions since it denies a right of support for the children on the respective bases of (1) their status of illegitimacy and (2) their mother's delay in commencing paternity proceedings.

A review of the record reveals that on September 19, 1973, the plaintiff filed a complaint which alleged that she and the defendant lived together continuously, as husband and wife, from December, 1965 to March, 1972. Although they were never married during this time, the defendant held himself out to be her husband and maintained and supported her as his wife. Moreover, the parties had two children, to whom the defendant acknowledged and all official records, ranging from birth certificates to school records, indicated that he was their natural father. The complaint further noted that the defendant maintained and supported the children from birth until March, 1972, when he left them. Since his departure, numerous demands for support have been made by the plaintiff, but he refused all of these requests. After hearing the arguments of counsel for each party, the trial court, on April 5, 1974, granted the defendant's motion and dismissed this paternity action for the plaintiff's failure to commence it within two years of the birth of the children as required under Section 54 of the Paternity Act. (Ill.Rev.Stat., 1973, ch. 106 3/4, par. 54)

In light of the briefs submitted and oral arguments presented, both parties urge that disposition of this action is contingent upon whether or not Section 54 of the Illinois Paternity Act is constitutional. However, in view of our decision to reverse the judgment on the merits, we deem it unnecessary to consider that issue.

Section 54 of the Illinois Paternity Act provides in relevant part:

'A proceeding to establish the paternity of a child born out of wedlock and to establish and enforce liability for its support, maintenance, education and welfare shall be instituted * * * only on the filing of a complaint in writing (a) by the mother of a child born out of wedlock, * * *. No such action may be brought after the expiration of 2 years from the birth of the child. However, where the person accused has acknowledged the paternity of the child by a written statement made under oath Or affirmation or has acknowledged the paternity of such child in open court, prosecution may be brought at any time within 2 years from the last time such acknowledgment was made or within 2 years from the last time the person accused contributed to the support, maintenance, education and welfare of the child subsequent to such acknowledgment * * *.' (Ill.Rev.Stat., ch. 106 3/4, par. 54) (emphasis added)

While the trial court apparently dismissed this paternity action because it was not brought within two years of the birth of the children, we believe that this case falls within one of the two exceptions or tolling provisions enunciated in the statute, namely, that the defendant by affirmation publicly acknowledged paternity of the minor children. It is well settled in Illinois that in determining whether a motion to dismiss was properly allowed, allegations of fact contained in the complaint must be taken as true (Edgar County Bank and Trust Co. v. Paris Hospital, Inc., 57 Ill.2d 298, 305, 312 N.E.2d 259, 262; Kuch and Watson, Inc. v. Woodman, 29 Ill.App.3d 638, 641, 331 N.E.2d 350, 353) and all reasonable inferences therefrom should be construed in the plaintiff's favor. (See e.g., Johnson v. North American Life and Casualty Co., 100 Ill.App.2d 212, 217, 241 N.E.2d 332, 335; Bishop v. Ellsworth, 91 Ill.App.2d 386, 391, 234 N.E.2d 49, 52). Applying this legal precept to the instant case, when the defendant moved to dismiss this cause of action, he admitted all facts well pled and thereby...