People ex rel. Smith v. Cobb

Decision Date10 October 1975
Docket NumberNo. 61104,61104
Citation337 N.E.2d 313,33 Ill.App.3d 68
PartiesPEOPLE of the State of Illinois ex rel. Patricia SMITH, Plaintiff-Appellee, v. Isaac COBB, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Bernard Carey, State's Atty. of Cook County, Chicago (Laurence J. Bolon, Marcia B. Orr and William J. Stacy, Asst. State's Attys., of counsel), for plaintiff-appellee.

DRUCKER, Justice.

Defendant appeals from a paternity judgment which found him to be the father of relatrix' child and ordered him to pay $35 per week in child support. He contends that (1) the decision of the court was against the manifest weight of the evidence and (2) the court erred in finding that he had waived his right to a jury trial.

The evidence adduced at the paternity hearing was as follows:

Relatrix testified that on December 30, 1966, she married Bobby Smith, and they have never been divorced. She left her husband in March 1970 and immediately moved into defendant's home. She and defendant shared the same bedroom at all times while they lived together and had sexual intercourse approximately three times per week. The couple had two joint checking accounts, filed joint income tax returns and when relatrix was not working, defendant paid all their bills. Relatrix further testified that the couple decided to have a child, and she stopped using birth control pills in late 1970. On June 23, 1972, relatrix gave birth to a baby girl, Marie Cobb, with defendant being listed as the father on the birth certificate. Defendant's hospitalization insurance under which relatrix was carried as his wife, paid the hospital bill. After birth, Marie Cobb was automatically carried as defendant's child under his hospitalization. Also, defendant did not object when relatrix told friends that it was his child. She moved out of his home in April 1973.

Bobby Smith testified for the State that he and relatrix were still married but had not lived together since March 1970.

Defendant testified and denied filing a joint income tax return or planning to have a child. He further contradicted relatrix' testimony only as it concerned the frequency of their sexual relations. He stated that in 1971 they had intercourse only twice, once in May and again in December. Also, he worked 21 hours per day, and on numerous occasions he returned home from work to find relatrix in the company of a male neighbor. Lastly, he requested relatrix to leave his home in November 1971 but allowed her to stay as she had nowhere else to go.

Relatrix filed suit in August 1973, and attorney M. W. Garnett filed an answer and jury demand on defendant's behalf. At a hearing on January 16, 1974, attorney Garnett waived the jury demand. Subsequently, for the purposes of the hearing and this appeal, attorney Richard Brauer represented defendant.

OPINION

Defendant first contends that the relatrix failed to overcome the presumption that the child was legitimate. A child born to a married woman is presumed to be legitimate, and the presumption can only be overcome by clear and convincing proof. People v. Powers, 340 Ill.App. 201, 91 N.E.2d 637.

The evidence in the instant case overcomes the presumption. Relatrix did not live with her husband and was living with defendant in a marital-like situation at the time of conception. Defendant shared the same...

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8 cases
  • Happel v. Mecklenburger
    • United States
    • United States Appellate Court of Illinois
    • October 8, 1981
    ...678, 682; In re Ozment (1978), 61 Ill.App.3d 1044, 1047, 18 Ill.Dec. 945, 948, 378 N.E.2d 409, 412; People ex rel. Smith v. Cobb (1975), 33 Ill.App.3d 68, 70, 337 N.E.2d 313, 315; People ex rel. Jones v. Schmitt (1968), 101 Ill.App.2d 183, 186, 242 N.E.2d 275, 276; People ex rel. Gonzalez v......
  • Binion on Behalf of Binion v. Chater, 96-2228
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • March 11, 1997
    ...the mother around the time of conception, and said there was a chance he could be the father. And finally, in People ex rel. Smith v. Cobb, 33 Ill.App.3d 68, 337 N.E.2d 313 (1975), the court found the legitimacy presumption rebutted when both husband and wife testified that they had not liv......
  • People v. Better
    • United States
    • United States Appellate Court of Illinois
    • October 10, 1975
  • Martin v. Martin
    • United States
    • United States Appellate Court of Illinois
    • February 14, 1978
    ...be overcome only by clear and convincing proof. (People v. Powers (1950), 340 Ill.App. 201, 91 N.E.2d 637; People ex rel. Smith v. Cobb (1975), 33 Ill.App.3d 68, 337 N.E.2d 313.) It is true that after the original complaint was filed reflecting that a child, Niamani, was born to the parties......
  • Request a trial to view additional results

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