People ex rel. Adams v. Mitchell

Decision Date30 October 1980
Docket NumberNo. 79-800,79-800
Citation89 Ill.App.3d 1023,45 Ill.Dec. 327,412 N.E.2d 678
Parties, 45 Ill.Dec. 327 The PEOPLE of the State of Illinois ex rel. Agnes Mae ADAMS, Plaintiff- Appellee, v. Tevell MITCHELL, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

James J. Doherty, Public Defender of Cook County (Suzanne M. Xinos, Asst. Public Defender, of counsel), for defendant-appellant.

Bernard Carey, State's Atty. of Cook County (Paul P. Biebel, Jr. and James L. McAuliff, Asst. State's Attys., of counsel), for plaintiff-appellee.

ROMITI, Justice.

Following a jury trial the defendant, Tevell Mitchell, was found to be the father of a child born to plaintiff, Agnes Adams, on February 17, 1973. Judgment was entered on this finding and defendant was subsequently ordered to pay $30 per week for the support of the child. On appeal defendant contends: (1) at the hearing on defendant's motion to dismiss the complaint, based on the tolling of the two-year limitation period for such actions, the trial court erred in placing on defendant the burden of going forward with evidence to counter the allegations of estoppel contained in plaintiff's complaint; (2) the proof was insufficient to establish that defendant was the father of plaintiff's child.

Plaintiff filed a verified complaint on July 22, 1975 alleging that defendant was the father of Lauren Irene Mitchell, born to her on or about February 13, 1973. Defendant moved to dismiss the complaint on the ground that it was not filed within the two-year limitation period of the Paternity Act. Ill.Rev.Stat.1975, ch. 1063/4, par. 54, now contained in Ill.Rev.Stat.1979, ch. 40, par. 1354.) Subsequently plaintiff filed an amended complaint in which she alleged, inter alia, that she had not previously instituted a paternity action because defendant acknowledged the child was his and, at the time they separated, promised to continue to pay money toward the support of the child. Plaintiff also alleged that after they separated defendant did continue to pay a small sum of money each week toward the support of the child until April, 1975.

At the hearing on defendant's motion to dismiss, the trial court 1 ruled, over defendant's objections, that the burden was on defendant to overcome the allegations of estoppel contained in plaintiff's amended complaint. Defendant called plaintiff as a section 60 witness. (Ill.Rev.Stat.1977, ch. 110, par. 60.) Plaintiff testified that defendant asked her to leave in May, 1973. She denied that this was because the child was not his. Defendant gave her amounts of money ranging from $5 to $30. The last payment he made to her was for $30 in April, 1975. She did not report this income on her tax return, nor did she inform her Public Aid caseworker. Plaintiff testified that she failed to report this income because it was not that significant. However she also testified that she needed it for her children. She explained that she did not file the paternity action earlier because defendant had been giving her support and it appeared they would be getting back together. After they had separated they again had sexual relations and the defendant promised several times to marry her.

After hearing this testimony and the arguments of counsel the trial court denied defendant's motion to dismiss.

Both plaintiff and defendant testified at trial. According to the plaintiff she met the defendant in 1971 and lived with him from May, 1972 until May, 1973. In June, July, and August of 1972 she had sexual relations with defendant twice a week. During the entire year she lived with him she had sexual relations only with him. In August, 1972 she learned she was pregnant and so informed defendant. The child was born February 17, 1973. Defendant's insurance paid for the birth expenses. Defendant contributed to the support of the child on at least a monthly basis until April, 1975. While living with defendant the plaintiff used the name Agnes Mitchell.

Plaintiff admitted that she had married Barry Adams in 1958. She was unable to provide any evidence that they were subsequently divorced. However she testified that at the time of trial (October 1978) she had not seen Adams in ten years.

Defendant testified that he first met the plaintiff in August, 1972 although he had "seen" her earlier. He first had sexual relations with her in late September, 1972 and she moved in with him the following month. In December she told him she was pregnant. He did not believe the baby was his and continued living with plaintiff after the birth only because she had nowhere else to go. He had not authorized the insurance payments for the child, learning of them only after the fact. He paid support for the child until May, 1973.

I.

Defendant first contends that at the hearing on his motion to dismiss the complaint based on the two-year limitation period contained in the Paternity Act the trial court erred in placing on defendant the burden of going forward with evidence to counter the allegations of estoppel contained in plaintiff's amended complaint. We agree with this contention but find no prejudice arising from the error and no basis for reversal because of it.

Manifestly plaintiff's complaint established that the two year period had run prior to the filing of the complaint. It alleged that the child was born on February 17, 1973. The initial complaint was filed on July 22, 1975. Section 54 of the Paternity Act (Ill.Rev.Stat.1975, ch. 1063/4, par. 54, now contained in Ill.Rev.Stat.1979, ch. 40, par. 1354), provides in pertinent part:

"No (paternity 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. The time any person so accused is absent from the State shall not be computed."

In addition to the exception provided in the statute our Supreme Court has held that under the proper circumstances a defendant may be estopped from raising the limitation period as a defense:

"The test to be applied is both factual and legal. The trial court must determine after an evidentiary hearing whether defendant's conduct within two years of the child's birth significantly discouraged plaintiff from bringing suit until after the limitation period expired. Estoppel may be appropriate where defendant has acknowledged the child in an unambiguous statement in the presence of third parties, even though not under oath or in open court, or where defendant has significantly contributed to the support of the child. In either situation an action must still be brought within two years of the most recent statement or significant contribution." (Cessna v. Montgomery (1976), 63 Ill.2d 71, 88, 344 N.E.2d 447, 455.)

The court in Cessna did not address the question of who was to bear the burden of proof in this hearing, but we find this to be a settled question under general principles applicable to pleading statutes of limitation as bars to an action. It is the party seeking to avoid application or operation of the limitation period who has the burden of proving the facts which will establish his contention. (Wilson v. LeFevour (1974), 22 Ill.App.3d 608, 317 N.E.2d 772; People ex rel. Sides v. Johnson (1920), 220 Ill.App. 212; 25 Illinois Law and Practice Limitations § 203 (1956).) Thus, in this cause it was the plaintiff who had the burden of establishing that defendant should be estopped from raising the limitation period as a bar to her action.

However, despite the erroneous ruling of the trial court on this issue, we find no basis for reversal arising from that ruling. Significantly, defendant has failed to contend that the evidence adduced at the hearing was insufficient to establish plaintiff's claim of estoppel, nor has he alleged that he was prevented by the ruling from adducing any evidence to counter her assertions. Plaintiff was called as a Section 60 witness (Ill.Rev.Stat.1977, ch. 110, par. 60), by defendant and was cross-examined by the State. Her testimony was that following the birth of the child she continued living with the defendant until he asked her to leave in May, 1973. After she left they did not live together again but they "got back together" and again began having sexual relations. In this period after their separation defendant asked her several times to marry him. Most importantly, from the birth of the child until April, 1975 he made periodic payments to her for support of the child. These payments ranged in amount from $5 to $30; the last payment in April, 1975 was for $30. In discussing why she failed to report these payments to her Public Aid caseworker or to the Internal Revenue Service plaintiff indicated that in that context she did not consider them that significant. But she also testified that she took the money without reporting it because she needed it for her child:

" * * * I felt that what Mr. Mitchell was giving me was not enough to tell them about it. I had a child that used milk, Pampers and the, a little money I got, it just, it was just enough."

We find no basis for holding that these payments were not significant within the framework of the Cessna decision. In explaining its decision to allow estoppel claims to be raised against paternity action defendants asserting the two-year limitation period as a defense, the court in Cessna stated:

"Plaintiffs who are considering suit against strangers are unlikely to be easily lulled into forfeiting a cause of action. In a paternity action, however, a mother must formally accuse a man with whom, at least for some...

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7 cases
  • Happel v. Mecklenburger
    • United States
    • United States Appellate Court of Illinois
    • October 8, 1981
    ...of legitimacy. The presumption is that a child born to a married woman is legitimate. People ex rel. Adams v. Mitchell (1980), 89 Ill.App.3d 1023, 1028, 45 Ill.Dec. 327, 331, 412 N.E.2d 678, 682; In re Ozment (1978), 61 Ill.App.3d 1044, 1047, 18 Ill.Dec. 945, 948, 378 N.E.2d 409, 412; Peopl......
  • Marriage of Adams, In re
    • United States
    • United States Appellate Court of Illinois
    • September 15, 1988
    ...denied those allegations. In his written opinion, the trial court noted that in the case of People ex rel. Adams v. Mitchell (1980), 89 Ill.App.3d 1023, 45 Ill.Dec. 327, 412 N.E.2d 678 (dealing with the issues of paternity and legitimacy), the reviewing court cautioned that the party assert......
  • People v. Mahdi
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    • United States Appellate Court of Illinois
    • October 30, 1980
    ... ... " 'The basic purpose of a trial is the determination of truth' (Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453, 460); and the goal of pretrial ... ...
  • People ex rel. Raines v. Biggs
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    ...married, she must overcome the presumption of legitimacy that thereby attaches. (See People ex rel. Adams v. Mitchell (1st Dist.1980), 89 Ill.App.3d 1023, 1028, 45 Ill.Dec. 327, 331, 412 N.E.2d 678, 682.) Moreover, before this presumption attaches, it must first be established that the chil......
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