Simcox By and Through Dear v. Simcox

• Decision Date: 27 September 1988
• Docket Number: No. 87-2110,87-2110
• Parties: , 124 Ill.Dec. 915 Linsey Renee SIMCOX, By and Through her Natural Guardian, Deborah Ann DEAR, Plaintiff-Appellant, v. Christopher Allen SIMCOX, Defendant-Appellee (Jeffrey Mitchell Dear, Defendant-Appellant).
• Court: United States Appellate Court of Illinois

Page 1032

529 N.E.2d 1032

175 Ill.App.3d 473, 124 Ill.Dec. 915

Linsey Renee SIMCOX, By and Through her Natural Guardian, Deborah Ann DEAR, Plaintiff-Appellant, v. Christopher Allen SIMCOX, Defendant-Appellee (Jeffrey

Mitchell Dear, Defendant-Appellant).

No. 87-2110.

Appellate Court of Illinois,

First District, Second Division.

Sept. 27, 1988.

Kanter & Mattenson, Ltd., Chicago, David M. Mattenson and William J. Arendt, for plaintiff-appellant and defendant-appellant.

Helen Sigman, Legal Aid Bureau, Chicago, for defendant-appellee.

Justice BILANDIC delivered the opinion of the court:

This appeal arises out of the dismissal of a petition to declare paternity brought by a four-year-old minor, Linsey Renee Simcox (Linsey), through her mother and natural guardian, Deborah Ann Dear (Deborah), under the Illinois Parentage Act of 1984. (Ill.Rev.Stat.1985, ch. 40, par. 2501 et seq.) Christopher Allen Simcox (Christopher) is the "presumed" father because he was married to Deborah at the time of Linsey's birth and for several years prior thereto. Defendant Jeffrey Mitchell Dear (Jeffrey) is the alleged biological father (the "putative" father).

Christopher, the presumed father, filed a motion to dismiss the petition pursuant to section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-619), to which Petitioner Linsey responded. The trial court dismissed the petition with prejudice on the theory of res judicata and collateral estoppel because it concluded that the paternity of Linsey was resolved in the judgment of dissolution of the marriage of Deborah and Christopher. It further concluded that both Linsey, the child, and Jeffrey, the alleged biological father, are estopped from initiating and maintaining a paternity action. Petitioner Linsey appeals and defendant Jeffrey joins in her appeal.

The following ultimate facts are established by the allegations of the petition, motion to dismiss, and response thereto.

Deborah and Christopher were married on June 7, 1980 in Marion, Illinois. They lived in Carbondale. In late April 1982, Christopher vacated the marital residence and established a separate residence. At about the same time, Jeffrey allegedly engaged in sexual intercourse with Deborah and she became pregnant. In July 1982, Christopher resumed residency with Deborah. Deborah gave birth to Linsey on January 24, 1983.

Deborah filed for divorce in late 1983 and an uncontested judgment of dissolution was entered on March 22, 1984. That judgment, which incorporates a marital settlement agreement, recites:

"4. That born to the parties during their marriage was one minor child, namely, Linsey Renee Simcox, born January 23, 1983; that no children were adopted by the parties during their marriage; and that plaintiff is not presently pregnant."

The agreement provided that Deborah would have custody of Linsey, subject to Christopher's rights of reasonable visitation, and Christopher was directed to pay $150 per month as child support.

On November 8, 1986, Deborah married Jeffrey, the alleged biological father. On February 5, 1987, Linsey, by her mother and natural guardian, Deborah, brought this paternity action against Christopher and Jeffrey pursuant to the Illinois Parentage Act of 1984. (Ill.Rev.Stat.1985, ch. 40, par. 2501 et seq.) Linsey sought: (1) a determination of father and child relationship between Jeffrey and Linsey; (2) declaration of the "non-existence of the parent and child relationship" between Christopher and Linsey; (3) a change in Linsey's last name to Dear (Jeffrey's last name); (4) a new birth certificate; (5) joint custody in Deborah and Jeffrey; and (6) reservation of Jeffrey's support obligations.

The child's verified petition does not allege facts concerning a blood test. However, in her response to the motion to dismiss, she alleges that blood tests were performed shortly before filing the petition. Those tests allegedly indicate that Jeffrey is in fact the biological father.

After argument, the trial court granted Christopher's section 2-619 motion to dismiss the petition. This appeal followed. The issue presented is whether the trial court properly dismissed the child's petition.

The doctrine of "[p]ater est quem nuptiae demonstrat--the presumption that the husband of the mother of a child born during marriage is the father of that child--is often said to be one of the strongest presumptions known to the law. Although the presumption is rebuttable in appropriate circumstances, the Uniform Parentage Act (UPA) provides that it may be challenged * * *." (76 Northwestern L.Rev. 669.) Illinois adopted the Uniform Parentage Act (hereinafter the Act) in 1984. (Ill.Rev.Stat.1985, ch. 40, par. 2501.) After codifying the presumption and its rebuttable nature, the Illinois Act also provides that "[a]n action to determine the existence of the father and child relationship, whether or not such a relationship is already presumed * * * may be brought by the child * * *." Ill.Rev.Stat.1985, ch. 40, par. 2507(a).

Where a former adjudication is relied upon as an absolute bar, there must be, as between the actions, identity of parties, of subject matter, and of cause of action. (Smith v. Bishop (1962), 26 Ill.2d 434, 187 N.E.2d 217.) The basis of the doctrine is that the party to be affected, or someone with whom he is in privity, has litigated or has had an opportunity to litigate the same matter in a former action. (26 Ill.2d 434, 437, 187 N.E.2d 217.) The law is clear that one is not estopped or barred by a prior adjudication if he was not a party to such action and does not stand in the relation of privity to one who was a party. (26 Ill.2d 434, 438, 187 N.E.2d 217.) Thus, the issue becomes whether a minor child is in privity with her custodial parent.

Privity contemplates a mutual or successive relationship to the same property rights which were the subject matter of prior litigation. (26 Ill.2d 434, 438, 187 N.E.2d 217.) Generally, children are not precluded by judgments against their parents where they have separate...