Wipaporn T. v. Harlow H. (In re A.H.)

• Decision Date: 20 January 2017
• Docket Number: No. 1-13-3703,1-13-3703
• Parties: IN RE PARENTAGE OF A.H., et al., Minors (Wipaporn T. a/k/a Chirathip T., Indiv. and as Parent and Next Friend on Behalf of Minors A.H. a/k/a H.H., A.H. a/k/a H.H., and A.H. a/k/a W.H., Petitioners-Appellees, v. HARLOW H., Respondent-Appellant.)
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 133703
69 N.E.3d 902

IN RE PARENTAGE OF A.H., et al., Minors (Wipaporn T. a/k/a Chirathip T., Indiv. and as Parent and Next Friend on Behalf of Minors A.H. a/k/a H.H., A.H. a/k/a H.H., and A.H. a/k/a W.H., Petitioners-Appellees,
v.
HARLOW H., Respondent-Appellant.)

No. 1-13-3703

Appellate Court of Illinois, First District, FIFTH DIVISION.

January 20, 2017

Beerman Pritikin Mirabelli Swerdlove LLP, of Chicago (Enrico J. Mirabelli, Howard A. London, and Matthew D. Elster, of counsel), for appellant.

Paul L. Feinstein, Ltd., of Chicago (Paul L. Feinstein, of counsel), for appellees.

69 N.E.3d 904

OPINION

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

¶ 1 In this action against the biological father, the mother filed a petition to recognize and enroll a foreign judgment that established the father's paternity of triplets, who were conceived through a method of assisted reproduction, and imposed support obligations. We conclude that the circuit court properly extended comity to the foreign judgment because it was not contrary to Illinois public policy and the father failed to establish that the judgment was obtained by fraud or that he was denied a full and fair opportunity to present a defense in the foreign proceeding.

¶ 2 A court in Thailand entered a judgment that adjudicated respondent Harlow H. to be the biological father of triplets conceived by gamete intrafallopian transfer (GIFT) and imposed child support obligations on him. Thereafter, the mother, Wipaporn T., a/k/a Chirathip T., petitioned the Circuit Court of Cook County to, inter alia , recognize and enroll the Thai judgment under the principles of comity.

¶ 3 Harlow moved to dismiss the petition, arguing the Thai judgment was not entitled to comity because it was contrary to Illinois public policy as expressed in a statutory provision addressing sperm donors and artificial insemination. The circuit court denied Harlow's motion to dismiss. Thereafter, Harlow filed an answer and affirmative defenses, asserting, inter alia , that comity could not be extended to the Thai judgment because Wipaporn obtained it by fraud and Harlow was denied a full and fair hearing in Thailand. Pursuant to Wipaporn's motion, the circuit court struck and dismissed Harlow's answer with prejudice, enrolled the Thai judgment, and held that there was no just reason to delay enforcement or appeal of its order.

¶ 4 Harlow appealed, contending (1) the Thai judgment was not entitled to comity because it directly contradicted Illinois public policy, which prevents sperm donors in certain situations from being legally treated as the natural fathers of children conceived by artificial insemination; and (2) the application of res judicata and dismissal of Halow's answer was improper because Wipaporn obtained the Thai judgment by fraud, Harlow did not have the opportunity to litigate his defenses in Thailand, and his appeal of the Thai judgment rendered the extension of comity to that judgment premature.

¶ 5 For the reasons that follow, we affirm the judgment of the circuit court.

¶ 6 I. BACKGROUND

¶ 7 Harlow held an economics Ph.D. and went to Thailand to work as an economic analyst between 2001 and 2009. Harlow began a personal relationship with Wipaporn in 2001 that continued for several years. Harlow was a citizen of the United States and already married to an American woman. In January 2004, Wipaporn and Harlow participated in a traditional wedding ceremony ritual in Thailand, but they were not registered as being legally married. They were not able to conceive children naturally and agreed that Wipaporn would undergo a GIFT procedure using Harlow's sperm. Harlow consented to this procedure in writing and signed the consent form on the line designated "husband." The procedure was successful, and their three sons were born on November 5, 2008.

¶ 8 Harlow financially supported Wipaporn and their three sons until September 2009. Thereafter, Wipaporn filed a civil suit against Harlow in Thailand to establish his paternity and obtain child and educational support. Harlow was represented in the matter by counsel, who filed

69 N.E.3d 905

an appearance, entered exhibits, and submitted a legal memorandum arguing that Illinois law prevented the imposition of a finding of paternity and child support obligations on him. Harlow chose not to personally appear at the trial for reasons of legal strategy.

¶ 9 According to the record, Harlow argued at the trial level in the Thai court that he and his American wife were married and living together for 19 years, the three boys were not his children, he did not have sexual intercourse with Wipaporn during her fertile period, and he never underwent fertility medical treatment to have children with Wipaporn. He also averred in his answer that Wipaporn had gone through a fertility medical treatment with another person and deceived Harlow by telling him that the three boys were Harlow's children. Wipaporn presented photographic evidence of her and Harlow's 2004 wedding ceremony and reception, documentation that Harlow consented to the GIFT procedure and allowed the doctor to take his sperm to used in such treatment, and DNA test results that established Harlow was the biological father of the three boys. Harlow submitted a testimonial statement to the Thai court, but the statement was inadmissible because he would not submit to cross-examination.

¶ 10 In December 2010, the Thai court entered an order that adjudicated Harlow to be the legal father of the triplets and awarded Wipaporn child and educational support in gradually increasing amounts. This decision was affirmed by Thailand's appellate court in June 2013. In a judgment dated both July 6, 2015, and January 18, 2016, Thailand's supreme court affirmed the judgment but amended it to require Harlow to provide educational support for his three sons only until they reached the age of majority. On February 5, 2016, the Thai court issued a certificate of case finality in this matter. This court takes judicial notice of the proceedings and final judgment of the Thai court. La Salle National Bank v. City of Chicago , 3 Ill.2d 375, 379–80, 121 N.E.2d 486 (1954) (a reviewing court can take judicial notice of documents or events that make an issue on appeal moot); Muller v. Zollar , 267 Ill.App.3d 339, 341, 204 Ill.Dec. 959, 642 N.E.2d 860 (1994) (judicial notice is proper where the document is part of the public record and where the notice will aid in the efficient disposition of a case).

¶ 11 Meanwhile, in June 2011, Wipaporn filed in the Circuit Court of Cook County her initial petition to, inter alia , enroll the Thai judgment, establish Harlow's child support obligations, recognize and enforce the Thai judgment based on comity, and increase the award of child support. Later, Wipaporn filed a four count amended petition, seeking (1) recognition and enrollment of the Thai judgment under principles of comity, (2) modification of the Thai judgment, (3) a de novo child support calculation, and (4) damages for breach of contract.

¶ 12 In August 2012, Harlow moved to dismiss the amended petition, arguing the Thai judgment was not entitled to comity. Specifically, Harlow argued that because he was never married to Wipaporn, the Thai judgment was contrary to Illinois public policy as expressed in a statutory provision that prevented the donor of semen used in the artificial insemination of a woman other than the donor's wife from being treated in law as if he were the natural father of the resulting child. In March 2013, the circuit court denied Harlow's motion to dismiss the amended petition with respect only to count I, which requested the extension of comity to the Thai judgment; the circuit court did not rule on the other three counts. Thereafter,

69 N.E.3d 906

the circuit court denied Harlow's motion to reconsider.

¶ 13 In July 2013, Harlow filed an answer and affirmative defenses, asserting, inter alia , that comity could not be extended to the Thai judgment because Wipaporn obtained it by fraud and Harlow was denied a full and fair hearing in Thailand. In his answer, Harlow admitted he was the known sperm donor but alleged Wipaporn had concealed from him her relationship with another man, with whom she was cohabiting. Harlow alleged Wipaporn intended him to be merely a sperm donor, had used his money to support her partner, and wanted to use Harlow's wealth to secure permanent financial support for herself and her partner. According to Harlow, Wipaporn made misrepresentations to Harlow to induce him to participate in the GIFT procedures. Harlow asserted that he did not learn about the partner's involvement until after the Thai trial court issued the judgment in 2010 and thus was unable to prepare a full defense at the trial in Thailand.

¶ 14 Wipaporn moved to strike and dismiss Harlow's answer and affirmative defenses. She argued that the circuit court's denial of Harlow's motion to dismiss count I of the amended petition resolved the only legal issue between the parties and res judicata barred Harlow's pleading. On August 22, 2013, the circuit court struck and dismissed Harlow's answer with prejudice, granted count I of the amended petition by enrolling, based on comity, the...