In re Marriage of Sparks
| Decision Date | 03 December 2018 |
| Docket Number | No. 1-18-0932,1-18-0932 |
| Citation | 122 N.E.3d 715,428 Ill.Dec. 454,2018 IL App (1st) 180932 |
| Parties | IN RE MARRIAGE OF Carole L. SPARKS, Petitioner/Cross-Respondent-Appellant, and Johnny L. Sparks, Respondent/Cross-Petitioner-Appellee. |
| Court | United States Appellate Court of Illinois |
Lake Toback DiDomenico, of Chicago (Michael G. DiDomenico, of counsel), for appellant.
Pinkston Law Group P.C., of Chicago (Danielle A. Pinkston, of counsel), for appellee.
¶ 1 Johnny Sparks and Carole Sparks filed cross-petitions for dissolution of their marriage. The circuit court entered a judgment of dissolution of marriage that incorporated the parties' child custody settlement for J.S., a minor born to Carole during the marriage. After the entry of the judgment of dissolution of marriage, Johnny filed a petition in the circuit court to terminate his parent and child relationship with J.S. The circuit court granted Johnny's motion for genetic testing, and the results showed that Johnny is not J.S.'s biological father. The circuit court conducted a trial on Johnny's petition to determine when Johnny acquired actual knowledge of relevant facts concerning J.S.'s biological paternity. After trial, the circuit court determined that Johnny's petition was timely because it was filed within two years of Johnny acquiring actual knowledge of relevant facts regarding J.S.'s biological parentage. The circuit court ordered that Johnny was not J.S.'s legal or biological parent and vacated all of the previously-entered orders related to Johnny's custody, allocation of parental responsibilities, visitation parenting time, child support, and financial support for J.S. Carole appeals. We affirm.
¶ 3 Johnny Sparks and Carole Sparks were married on December 4, 1992. At the time of the marriage, Carole had one daughter from a previous relationship. During the course of Johnny and Carole's marriage, five children were born to or adopted by the parties, including J.S., who was born on May 27, 2004, and who is the only child that is still a minor. Johnny was therefore J.S.'s presumed father under section 204(a)(1) of the Illinois Parentage Act of 2015 (Act) ( 750 ILCS 46/204(a)(1) (West 2016) ). Carole filed a petition for dissolution of marriage in February 2014 and Johnny subsequently filed a counter-petition for dissolution of marriage. During the course of the proceedings, the circuit court approved an agreed joint custody settlement agreement. On May 26, 2016, the circuit court entered a judgment for dissolution of marriage that incorporated the joint custody settlement and the parties' marital settlement agreement, and addressed the parties' financial obligations for J.S.'s expenses.
¶ 4 In November 2016, Carole filed a petition for rule to show cause against Johnny for allegedly failing to pay his portion of J.S.'s private school tuition and expenses. Johnny filed a pro se response to Carole's petition, asserting in part that a July 7, 2016, DNA test showed that he was not J.S.'s biological father. In January 2017, Johnny filed through counsel an amended response to Carole's petition for rule to show cause, as well as a verified petition to terminate his parent and child relationship with J.S. pursuant to section 205 of the Act (id. § 205 (West 2016) ). Johnny then filed an amended petition—which is the petition at issue in this appeal—to terminate his parent-child relationship with J.S. pursuant to section 2-1401 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1401 (West 2016) ), and section 205(c) of the Act.
¶ 5 Johnny's amended petition alleged that in June 2016, shortly after the judgment for dissolution of marriage, Carole informed him for the first time that he was not J.S.'s biological father. Johnny asserted that prior to June 2016, he had no knowledge or reason to believe that he was not J.S.'s biological father. Johnny asserted that his petition was timely under section 205(c) of the Act because it was filed within two years of acquiring actual knowledge of relevant facts that he was not J.S.'s biological father. He also requested that the circuit court order an admissible DNA test pursuant to section 614 of the Act ( 750 ILCS 46/614 (West 2016) ). Finally, Johnny requested that the circuit court vacate all of the child-related orders in the dissolution of marriage proceedings on the basis that Carole fraudulently concealed that he was not J.S.'s biological father until after the entry of the judgment for dissolution of marriage.
¶ 6 Carole moved to dismiss Johnny's amended petition pursuant to section 2-619.1 of the Code ( 735 ILCS 5/2-619.1 (West 2016) ), asserting in relevant part that Johnny's 2-1401 petition should be dismissed because Johnny failed to exercise due diligence in bringing his claim and that the amended petition failed to state a claim for fraud. Carole also opposed Johnny's request for genetic testing on the basis that Johnny's petition failed to state a claim to declare the nonexistence of a child and parent relationship. Carole's motion to dismiss was fully briefed. On July 20, 2017, the circuit court heard oral argument and denied Carole's motion to dismiss. The circuit court ordered Johnny, Carole, and J.S. to undergo a DNA test over Carole's objection that the circuit court had not yet conducted a hearing on Johnny's section 2-1401 petition. At no point in the proceedings on the amended petition did Carole request that the circuit court appoint a guardian ad litem or child representative for J.S., and no guardian ad litem or child representative was ever appointed by the circuit court. Carole's attorney was allowed to withdraw and Carole filed a pro se motion to vacate and reconsider the circuit court's order requiring DNA testing, which in part referenced sections 205 and 610 of the Act (760 ILCS 46/205, 610 (West 2016) ). The motion to reconsider was fully briefed and the circuit court denied the motion.1 Johnny, Carole, and J.S. submitted to genetic testing that confirmed that Johnny is not J.S.'s biological father.
¶ 7 The circuit court then held a trial on Johnny's amended petition. The circuit court heard testimony from the parties, as well as from Johnny's current wife Berenda Sparks, the parties' daughter Tiki Sparks, and Carole's daughter from her previous relationship, Iris Sparks, who is Johnny's stepdaughter. After hearing all of the testimony, the circuit court made credibility findings on the record and concluded that prior to June 2016, Johnny did not have any actual knowledge of relevant facts that J.S. was not his biological daughter. The circuit court further concluded that Carole committed fraud by leading Johnny to believe that J.S. was his biological daughter. In a handwritten order dated April 19, 2018, the circuit court, in relevant part, granted Johnny's petition to terminate his parent and child relationship with J.S., ordered that Johnny was not J.S.'s "legal and/or biological father," and ordered that "all orders regarding custody, allocation of parental responsibilities, visitation parenting time, child support or financial support for the minor, J.S., are hereby vacated." Carole filed a timely notice of appeal.
¶ 9 We have jurisdiction over the circuit court's April 19, 2018, order pursuant to Illinois Supreme Court Rule 304(b)(3) (eff. Mar. 8, 2016), because that order granted Johnny's section 2-1401 petition, and also pursuant to Rule 304(b)(6) because the circuit court's order modified a judgment relating to the custody and allocation of parental responsibility. Furthermore, we find that we have jurisdiction over the circuit court's July 20, 2017, order granting Johnny's motion for genetic testing because that order was an integral part of the circuit court's April 19, 2018, judgment that Johnny was not J.S.'s legal or biological father.
¶ 10 On appeal, Carole first argues that the circuit court should have held a hearing pursuant to sections 401 and 610(b) of the Act to consider J.S.'s best interests prior to ordering genetic testing. We disagree based on the plain language of the Act.
¶ 11 When considering issues of statutory construction, our primary goal is to ascertain and give effect to the intention of the legislature. In re Marriage of Goesel , 2017 IL 122046, ¶ 13, 421 Ill.Dec. 949, 102 N.E.3d 230. The best indicator of legislative intent is the plain language of the statute, which must be given its plain and ordinary meaning. Id. We consider each provision of the statute in light of other relevant provisions of the statute. Id. Where the statutory language is clear and unambiguous, we must give effect to that language without resort to other aids of statutory construction. Id. Statutory construction is a question of law that we review de novo . Id.
The legislature's intent is clear: where a party or the child requests genetic testing, the circuit court "shall order or direct the mother, child, and alleged father to submit" to genetic testing. (Emphasis added.) Id.
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