People ex rel. Repsel v. Kirk

• Decision Date: 03 September 1971
• Docket Number: No. 70--177,70--177
• Citation: 133 Ill.App.2d 771,273 N.E.2d 86
• Parties: The PEOPLE of the State of Illinois ex rel. Lois REPSEL, Plaintiff-Appellee, v. Kenneth KIRK, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 86

273 N.E.2d 86

133 Ill.App.2d 771

The PEOPLE of the State of Illinois ex rel. Lois REPSEL Plaintiff-Appellee, v. Kenneth KIRK, Defendant-Appellant.

No. 70--177.

Appellate Court of Illinois, Third District.

Sept. 3, 1971.

Dixon, Devine, Ray & Morin, Dixon, for defendant-appellant.

Edward X. Rashid, Sp. Asst. Atty. Gen., Streator, for plaintiff-appellee.

PER CURIAM.

Defendant Kenneth Kirk appeals to this Court from an order of the LaSalle County Circuit Court adjudging defendant to be the father of the child of relator Lois Repsel. The action was instituted pursuant to the provisions of 1969 Illinois Revised Statutes, Ch. 106 3/4. The question for review is whether the evidence produced in this cause sufficiently overcomes the presumption that the child was legitimate, since the relator was married to a third party at the time of conception of the child.

Lois Repsel, the relator, testified that she first met defendant in November 1968 at Earl's Club, a tavern in Mendota, Illinois. She stated she began having sexual relations with him on or about November 18, 1968, and that such relations continued intermittently thereafter as frequently as every other weekend through February 1969. These acts occurred on various occasions at the Ellis and Faber Hotels in Mendota, at relator's apartment at 2303 Main Street in Peru, Illinois, and at the Daniels Motel in LaSalle, Illinois. She stated that she and defendant engaged in sexual relations '15 or 20 times'. Relator stated also that during this period she did not have sexual intercourse with anyone else. She further testified that at some time after defendant became aware of her pregnancy he came to her residence at that time (at the Igloo Trailer Court in Peru) and told her, 'It wasn't all his fault, it was as much mine as it was his, and he then wanted to know what I wanted him to do about it.' She stated that she said nothing in response to his inquiry.

A male child was born to relator on August 11, 1969. At the time of the conception of the child in question, relator was married to William Repsel. The couple had been married on May 9, 1967, and were divorced on February 27, 1969. As indicated, the child was born on August 11, 1969. Relator testified that she and her husband had not engaged in sexual intercourse with each other since their separation, which took place 'over a year' prior to the time she later became pregnant. Although the husband, William Repsel, did not testify at the trial, it was stipulated that if he were called he would state that he did not have sexual intercourse with relator at any time during the month of November 1968, or subsequent thereto. The record discloses, however, that Mr. Repsel at all times material to the issues here, lived in the same city as the relator and, as a matter of fact, worked as a bartender in the same premises where relator maintained her apartment at 2303 Main Street in Peru. It was shown that relator's apartment could be reached immediately through a door from the tavern where her husband worked. The relator and her husband saw each other on frequent occasions during their separation and relator, on occasion, whould leave the elder child with her husband at his residence while she was working. Relator and William Repsel are admittedly the natural parents of a child born on October 26, 1967.

It was also disclosed in the proceedings that William Repsel, in February 1969 filed a divorce complaint charging relator with refusing to cohabit with him for the previous nine months and with going out of the home at night, frequently staying away all night without explanation. In her answer to the divorce complaint, relator denied each of the allegations. In this proceeding, relator testified that she did not know why her answer denied the allegations because, in fact, they were true. A friend of relator, Rhonda Timmons, testified that defendant came to relator's residence, then at the Igloo Trailer Court in Peru, about a month after the child was born at a time when relator was not present. Miss Timmons said that the child in question resembled defendant. She stated she overheard defendant say that he would never marry relator as relator would be chasing men. She also stated that defendant said, 'It wasn't all his fault'.

In the birth certificate for the child which was introduced into evidence by counsel for defendant, the certificate stated, in the space provided for the name of the father, the words 'legally omitted'. Relator could not explain why the certificate had been filled out in this manner.

Defendant testified that he met relator at Earl's Club in Mendota in October or November, 1968, that he danced with her a couple of times and he showed her his car. Since she stated she already had a date that night, however, defendant says he did not remain with her any longer at that time. He saw her again at Earl's Club near Christmas or New Year's Eve in 1968 at which time they had some drinks together. He stated he did not take her home that night. During February of 1969 he saw her again at Earl's Club and she invited him to a party in Peru. He went to the party which was attended by two other girls and a man, but he stayed only a few minutes and then left. Defendant denied that he had ever engaged in sexual relations with relator and denied that he had ever taken her to any of the hotels or motels referred to in this opinion. In January of 1969, defendant stated he received a phone call from relator and went to her place of residence at Igloo Trailer Court, where relator there accused defendant of being the father of her unborn child, but defendant told relator that this could not be possible as they had never had sexual relations with each other. He stated that in...