Custody C.C. v. David H.C.

• Decision Date: 09 December 2013
• Docket Number: No. 3–12–0342.,3–12–0342.
• Citation: 1 N.E.3d 1238,377 Ill.Dec. 351,2013 IL App (3d) 120342
• Parties: In re CUSTODY OF C.C., a Minor (Erica L.F., Petitioner–Appellee, v. David H.C., Respondent–Appellant (Klay B, Intervenor–Appellant)).
• Court: United States Appellate Court of Illinois

2013 IL App (3d) 120342

1 N.E.3d 1238

377 Ill.Dec. 351

In re CUSTODY OF C.C., a Minor (Erica L.F., Petitioner–Appellee, v. David H.C., Respondent–Appellant (Klay B, Intervenor–Appellant)).

No. 3–12–0342.

Appellate Court of Illinois, Third District.

Dec. 9, 2013.

Jeff L. Neigel (argued), Law Offices of Jeff Neigel, Canton, for appellant.

Thomas B. Ewing, Joan C. Scott (argued), Ewing & Scott, Lewistown, for appellee Erica L.F.

David H. Coufal, Astoria pro se.

Joseph C. O'Donnell, Macomb, guardian ad litem.

OPINION

Presiding Justice WRIGHT delivered the judgment of the court, with opinion.

¶ 1 Petitioner, Erica L.F., initiated this action in 2008 seeking an order determining custody and support for the minor, C.C. Based on Erica's petition, the circuit court of Fulton County issued a paternity order in 2008 determining David H.C. to be the father of C.C. based on Erica and David's voluntary acknowledgment of paternity executed the day after C.C.'s birth. Two years later, the intervenor, Klay B., asked the court to vacate the 2008 order naming David as C.C.'s parent because Klay alleged he was the child's actual biological father. The trial court refused to vacate the 2008 order declaring David to be C.C.'s father, but granted Klay's request to receive court-ordered visitation and his request to be ordered to pay the full statutory percentage of his net income for C.C.'s child support. In 2011, the court further ordered Klay to pay a portion of Erica's attorney fees incurred as a result of Klay's intervention in case No. 08–F–68.

¶ 2 Klay appeals the order requiring him to pay one-third of Erica's attorney fees and refusing to vacate the 2008 order naming David as the legal father of C.C., as requested in Klay's 2009 motion pursuant to section 2–1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2–1401 (West 2008)). Alternatively, if this court does not set aside the 2008 paternity order naming David as C.C.'s legal father, Klay asks this court to revisit the issue of whether Klay's child support payment should be based on less than 20% of his income since C.C. continues to have another legal father, namely, David.

¶ 3 We reverse the court's award of attorney fees, but decline to address the other issues regarding Klay's section 2–1401 motion and the appropriate percentage for Klay's child support, if any, due to lack of jurisdiction.

¶ 4 BACKGROUND

¶ 5 In late 2006 or early 2007, Erica had sexual relations with both David and Klay and became pregnant. Erica initially suggested to Klay that he could be the father of her unborn child. However, a week later Erica told Klay a doctor informed her that it was extremely unlikely that Klay was, in fact, the father of her child. Erica gave birth to C.C. on October 18, 2007. The following day, Erica and David signed a voluntary acknowledgment of paternity (VAP), identifying David as the child's biological father.

¶ 6 On June 18, 2008, Erica filed a “Petition for Child Custody and Child Support,” in case No. 08–F–68, requesting the court to enter an order legally designating David as the father of C.C., based on the VAP, pursuant to section 14 of the Illinois Parentage Act of 1984 (the Parentage Act) (750 ILCS 45/14 (West 2008)). On November 6, 2008, the trial court entered an agreed order finding Erica and David to be “the parents of [C.C.],” awarded sole custody to Erica subject to David's scheduled visitation, and settled financial matters such as support, insurance, and tax exemptions.

¶ 7 Erica's relationship with David temporarily ended in 2008. Thereafter, Erica rekindled her relationship with Klay in early 2009, thereby triggering Klay's suspicions that he may be C.C.'s biological father. Consequently, in June 2009, Klay filed a motion, pursuant to section 2–1401, to vacate the orders naming David the father of C.C., in case No. 08–F–68. Klay also initiated an independent action seeking to establish a father-child relationship in case No. 09–F–50.

¶ 8 On July 9, 2009, Erica filed a motion to strike Klay's section 2–1401 pleading, in case No. 08–F–68, on the grounds that Klay lacked standing to file any pleadings in the paternity action involving David because Klay was not a named party. On July 10, 2009, the trial court granted Klay leave to file a petition to intervene in case No. 08–F–68, and to withdraw his initial section 2–1401 motion. The court also allowed Klay to dismiss his independent parentage action, on July 10, 2009, in case No. 09–F–50.

¶ 9 Next, on July 22, 2009, Klay filed three pleadings in the 2008 paternity action involving David. Klay asserted Erica recently resumed her relationship with David and refused to allow Klay to have continued contact with C.C. Klay's petition to intervene claimed that Erica and David, either fraudulently or based on a material mistake of fact, signed VAP in 2007 for the purpose of depriving Klay of his parental rights to C.C.

¶ 10 Klay's second pleading, a petition to determine the existence of a father-child relationship, asked the court to order deoxyribonucleic acid (DNA) testing to support a subsequent finding that Klay is the biological father of C.C. The petition asked the court to award joint custody to Klay and Erica, naming Erica residential custodian with rights of reasonable visitation for Klay. The petition further requested that the court order C.C.'s last name be changed to Klay's last name. Finally, Klay requested the court to enter an order fixing his child support obligations at “20% of his net income as calculated pursuant to Section 505 of the [Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/505 (West 2008)) ].”

¶ 11 Klay's third pleading, filed in case No. 08–F–68 on July 22, 2009, was a new motion for relief from judgment pursuant to section 2–1401 of the Code. 735 ILCS 5/2–1401 (West 2008). Klay's motion alleged that Erica and David, either fraudulently or through a mistake of fact, signed the VAP to deprive Klay of his potential parental rights to C.C. Therefore, Klay requested the trial court to vacate the order entered November 6, 2008, finding Erica and David to be the legal parents of C.C., and any subsequent orders related to David being C.C.'s father. Klay alleged Erica did not contact him before David signed the 2008 VAP, the day after C.C.'s birth, and failed to notify Klay when she filed the paternity action against David, in case No. 08–F–68.

¶ 12 On August 18, 2009, Erica filed a response to Klay's motion to intervene. David also filed an answer objecting to Klay's petition to intervene on August 25, 2009. In Erica's response, Erica objected to Klay's standing to intervene. According to Erica, the statute did not allow a third party to come into court and determine the nonexistence of a previously declared legal father of a child. Further, Erica claimed Klay waived the right to seek paternity or challenge the existing paternity of C.C., since he was informed she was pregnant in 2007.

¶ 13 The court held a hearing on Klay's petition to intervene. The court found Klay knew of Erica's pregnancy when it occurred and also found David was adjudicated as C.C.'s father by court order based on a conclusive acknowledgment of paternity. Therefore, the court initially denied Klay's petition to intervene.

¶ 14 One month after Klay sought to intervene in the 2008 paternity action, David ceased paying court-ordered child support. On September 17, 2009, the court entered an order, as agreed by David and Erica, terminating David's obligation to pay any amount of child support to the State disbursement unit because Erica and David were once again residing together and mutually providing for C.C.

¶ 15 Subsequently, on September 24, 2009, Klay filed a motion to reconsider the denial of his petition to intervene. Erica moved to strike this motion to reconsider, and David joined in that motion. After a hearing, on February 5, 2010, the trial court reconsidered its earlier decision and then orally granted Klay's petition to intervene in case No. 08–F–68. The trial court entered a written order memorializing its oral decision on February 18, 2010. The court also allowed the parties to proceed on Klay's petition to establish the existence of a father-child relationship and his section 2–1401 motion.

¶ 16 On April 28, 2010, pursuant to Rule 308 (Ill. S.Ct. R. 308 (eff. Feb. 26, 2010)), the trial court certified two questions for interlocutory appeal to this court: (1) whether the trial court has subject matter jurisdiction to make a determination as to the existence of a father-child relationship between another putative father where a parent-child relationship had previously been established by a VAP; and (2) whether the presumption of paternity created by a VAP is conclusive as to the intervenor pursuant to the Parentage Act (750 ILCS 45/1 et seq. (West 2008)). This court declined to review the certified questions and issued a mandate on August 12, 2010, denying leave to appeal. In the interim, the trial court granted Klay's request for DNA testing on May 10, 2010.

¶ 17 After this appellate court denied the Rule 308 petition for leave to appeal, the court appointed a guardian ad litem (GAL) to represent the child's best interests on August 31, 2010. On December 8, 2010, the court received the DNA test results verifying Klay was the biological father of C.C., but the court did not make a formal finding that Klay was the father of the child at that time. Subsequently, on December 8, 2010, the court held a hearing on Klay's section 2–1401 motion to vacate the 2008 order naming David the father of C.C., as well as Erica's motion to dismiss Klay's section 2–1401 motion.

¶ 18 After previously meeting with Erica, David, Klay, and C.C., the GAL advised the court it was in C.C.'s best interests for all three “parents” to be involved in C.C.'s life for the following reasons. First, C.C. had a close relationship with her mother, who was living with David and the child. Next,...