LIPSCOMB EX REL. LIPSCOMB v. Wells

• Decision Date: 27 November 2001
• Docket Number: No. 1-00-3793.,1-00-3793.
• Parties: Beatryce LIPSCOMB, on behalf of Veronica LIPSCOMB, a minor, Plaintiff-Appellant, v. Tyree WELLS, Defendant-Appellee, and Cross-Appellant.
• Court: United States Appellate Court of Illinois

761 N.E.2d 218

326 Ill. App.3d 760

260 Ill.Dec. 374

Beatryce LIPSCOMB, on behalf of Veronica LIPSCOMB, a minor, Plaintiff-Appellant, v. Tyree WELLS, Defendant-Appellee, and Cross-Appellant.

No. 1-00-3793.

Appellate Court of Illinois, First District, Second Division.

November 27, 2001.

Richard A. Devine, State's Attorney (Robert J. Ruiz, Deputy State's Attorney, Mary T. Donoghue, Assistant State's Attorney, Leonard N. Foster, Assistant State's Attorney, of counsel), Chicago, for Plaintiff-Appellant.

Edwin R. Armstrong, Gregory C. Armstrong, Armstrong & Donnelly, Ltd., Chicago, for Defendant-Appellee.

Justice GORDON delivered the opinion of the court:

Plaintiff, Beatryce Lipscomb (plaintiff), on behalf of Veronica Lipscomb (V.L.), her minor daughter, appeals from the judgement of the circuit court of Cook County which vacated a previous judgment declaring defendant Tyree Wells (defendant) to be V.L.'s father. On appeal, plaintiff contends that defendant's collateral attack on this judgment is time-barred. Plaintiff also contends that the time limitation under section 2-1401 was not extended by any fraudulent concealment which the defendant has urged below. The plaintiff further contends that the defendant does not qualify for relief under section 7(b-5) of the Parentage Act of 1984 (750 ILCS 45/7(b-5) (West 2000)). We affirm.

BACKGROUND

On June 3, 1988, plaintiff brought a paternity action against defendant Tyree Wells to have him adjudicated as the father to her minor child, V.L., born in January of that year. In the verified complaint initiating the paternity action, plaintiff alleged that defendant was the natural father of V.L. On July 29, 1988, an agreed order of parentage and support was entered against defendant together with a conditional order to withhold a monthly sum from his income for support of the child.

On February 2, 2000, defendant filed a verified petition pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)) and pursuant to section 7(b-5) of the Parentage Act of 1984 (750 ILCS 45/7(b-5) (West 2000)) seeking an order compelling a DNA test to determine the parentage of V.L. The petition further prayed that in the event of "a negative test result" the court vacate the judgement entered on July 29, 1988, and all subsequent court orders concerning support and visitation and refund all child support payments made pursuant to said orders.

The petition averred that defendant agreed to the entry of the July 29, 1988, judgment without the benefit of DNA testing based upon representation of plaintiff that he was the natural father of V.L. and that plaintiff had no other relations with men at the time of conception. The petition also alleged that on or about December 20, 1998, while defendant was at the home of plaintiff and V.L., plaintiff, during the course of a quarrel over Christmas shopping money for V.L., stated that V.L. was not defendant's child and that "she had been seeing another man at the time of conception." The petition further alleged that a new child who strongly resembled V.L. was subsequently born to plaintiff of an undisputedly different father. The petition then charged that the judgement of July 29, 1988, "may have been the result of fraud, misrepresentation or concealed facts" which could be determined pursuant to an order requiring submission by the parties and the child to DNA testing. The petition apparently further alleged that this concealment was not disclosed until 1998 thereby tolling the limitations period under section 2-1401.

On March 17, 2000, plaintiff moved to strike defendant's petition on the grounds that it was time-barred under section 2-1401 because it was filed more than two years beyond the date of the judgment of paternity. Defendant responded thereto on April 5, 2000, stating that the time period was tolled due to plaintiff's fraudulent concealment of the parentage of her child. On April 14, 2000, the trial court entered an order which denied plaintiff's motion to strike. By that same order plaintiff was given 28 days which to respond to the petition and the matter was set for a hearing. On May 16 plaintiff filed a response to defendant's petition which challenged defendant's position as a matter of law but which did not contest its allegation of fact as to plaintiff's representation pertaining to the birth of V.L. in 1988 and her contrary representation to defendant on December 20, 1998.

The hearing on defendant's petition apparently commenced on June 19, 2000. On that date the court entered an order finding that defendant "has not complied with the provisions of 750 ILCS 45/7(b-5), he not having [sic] obtained genetic DNA testing." By that order the court continued the matter to July 25, 2000, for plaintiff to respond to defendant's argument "on the remaining issue of fraudulent concealment pursuant to respondent's [defendant's] section 2-1401 petition." The circuit court also ordered the minor child and plaintiff to be present.

On July 25, 2000, the court proceeded with the scheduled hearing although neither plaintiff nor the minor appeared. At that hearing the court found that the alleged representations on December 20, 1998, repudiating petitioner's paternity were in fact made. According to the judge this was corroborated by the further fact that the mother ceased to allow the child to maintain a relationship with the father since that date. The trial judge also found that as of that time in 1988 when the agreed order of parentage was entered, the mother concealed from defendant the material fact "that he was not the child's father." Accordingly, the court found that defendant was deprived of the opportunity to request a blood or DNA test in 1988 by the mother's concealment of the material fact the "he was not the father of this child."

On August 8, 2000, the court entered an order finding that prior to the entry of the 1988 agreed order of paternity the mother fraudulently misrepresented to defendant that he was V.L.'s father; that the true facts of parentage were concealed by the mother until December 1998, and that as a result of that concealment, defendant was denied the opportunity to request a DNA test. Accordingly, the court vacated the parentage judgement entered on July 29, 1988, and ordered the parties to submit to DNA testing.

On September 6, 2000, plaintiff filed a motion to reconsider, asserting an inconsistency between the court's oral recitation in its order on July 25, 2000, and the subsequent written order entered pursuant thereto on August 8, 2000. Plaintiff claimed that under its oral pronouncement of July 25, 2000, the court ordered DNA testing while continuing its ruling on the petition to vacate the 1988 agreed judgment, while the written order of August 8, 2000, purported to vacate that judgment and ordered the submission to DNA testing on August 18, 2000, which neither plaintiff nor the minor had complied with. On October 11, 2000, the court denied plaintiff's motion to reconsider asserting that the written order entered on August 8, 2000, shall stand since otherwise it would lack jurisdiction to order DNA testing while the 1988 judgment remained standing.

On November 8, 2000, plaintiff filed a notice of appeal seeking to appeal the order of August 8, 2000, and the order of October 11, 2000, which denied reconsideration of the order of August 8, 2000. This appeal followed.

ANALYSIS

Plaintiff first argues that the trial court lacked jurisdiction to open the parentage judgment of July 29, 1988, because the period for filing a section 2-1401 petition had elapsed and had not been tolled by any fraudulent concealment of V.L.'s parentage. In support, plaintiff argues that merely because she had relations with a man other than defendant during the time of V.L.'s conception does not indicate that she then knew that defendant was not V.L.'s father. Thus her 1998 assertion that defendant is not the father is at best a mere opinion or surmise, since she would have no sure way of knowing as between two sexual partners who the actual father was. Plaintiff contends that since she could not herself correctly identify V.L.'s father, she had no duty to inform defendant of the possibility that he was not the father. Moreover, she contends that defendant could have requested a blood test in 1988, as was his right under the Parentage Act of 1984. Consequently, plaintiff urges that defendant's section 2-1401 petition was not timely filed as it was not filed within the two-year window and that window was not extended by any valid claim of fraudulent concealment concerning V.L.'s parentage. We disagree.

Section 2-1401 states that "the petition must be filed no later than two years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the grounds for relief is fraudulently concealed shall be excluded in computing the period of two years." 735 ILCS 5/2-1401(c) (West 2000). "On presentation of the petition the court looks to the entire record and exercises sound judicial discretion as to whether or not the petition may be filed, and if this discretion has not been abused, the decision will not be disturbed." J.B. Inderrieden v. Gill, 373 Ill. 180, 182, 25 N.E.2d 796, 797-98 (1940). "[S]ection 2-1401 does not afford a litigant a remedy whereby he may be relieved of the consequences of his own mistake or negligence [citation] a party relying on section 2-1401 is not entitled to relief unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court." Smith v. Airoom, Inc., 114 Ill.2d 209, 222, 102 Ill.Dec. 368, 499 N.E.2d 1381, 1387 (1986).

"The court must be satisfied that the alleged new matter was not known to petitioner and could not have been discovered, produced or used by him with the exercise of reasonable diligence upon the...