In re Marriage of Mannix

No. 1-06-2130 FIRST DIVISION
Filed: 6-18-07
In re MARRIAGE OF: ) Appeal from the
SHEILA MANNIX, ) Circuit Court of
) Cook County.
Petitioner-Appellant, )
)
and ) No. 93 D 2984
)
DANIEL SHEETZ, ) Honorable
) James G. Donegan,
Respondent-Appellee. ) Judge Presiding.
MODIFIED OPINION UPON DENIAL OF PETITION FOR REHEARING
JUSTICE ROBERT E. GORDON delivered the opinion of the court:
In July 2006 the circuit court of Cook County found that Brian Sheetz, a minor, was the
child of the marriage of petitioner Sheila Mannix and respondent Daniel Sheetz, and declared
respondent the father of the child. Petitioner appeals from the trial court’s decision, arguing that
the circuit court had no jurisdiction to hear this matter, and its order therefore should be vacated.
For the reasons set forth below, we affirm the judgment of the circuit court.
BACKGROUND .
Petitioner and respondent were married in 1989 and divorced in 1993. During their
marriage, they had one child, Kevin. The judgment for dissolution of marriage, which was dated
March 12, 1993, stated: "[n]o children were adopted by the parties and the petitioner is not now
No. 1-06-2130
pregnant." Seven months later (October 20, 1993), after the dissolution of the marriage,
petitioner gave birth to Brian. Respondent was listed as the father on Brian’s birth certificate,
which was signed by both petitioner and respondent.
According to an affidavit of petitioner dated July 7, 2005, she began postdivorce litigation
in May 2000 to address, among other things, respondent’s "non-compliance with the basic
parental financial obligations of the 1993 Judgment for Dissolution of Marriage." As an apparent
part of this litigation, petitioner filed a petition in the circuit court of Cook County seeking an
increase in child support. On June 14, 2001, the court entered an order directing, inter alia, that
respondent’s child support obligation be "increased to the sum of $1000.00 monthly,
commencing on July 1, 2001 and continuing on the first day of each month thereafter until the
younger child Brian attains the age of majority or completes high school, whichever shall last
occur." (Emphasis added.)
In March 2005, during a hearing before the circuit court, the attorney who had been
appointed child representative informed the court that the "second child" (Brian) "was not
covered by the [1993] judgment [for dissolution of marriage]." During a subsequent hearing, the
court informed petitioner, counsel for respondent, and the child representative that a judicial
determination of paternity with regard to Brian "may have to be done somewhere along the
proceedings here so we can get this standing for this child."
On January 13, 2006, petitioner, acting pro se, filed a verified petition to determine
parent-child relationship in the circuit court of Lake County. In her petition, which was brought
pursuant to the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 et seq. (West
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2004)), petitioner sought, inter alia, "[a] judgment declaring the existence of a parent-child
relationship in regard to the minor child, B.S.S. [Brian], declaring that plaintiff is the mother of
B.S.S. and further declaring that defendant [Daniel Sheetz] is the father of B.S.S." Petitioner
asserted in her petition that respondent was the father of Brian and that she and respondent were
married to each other on the date of Brian’s conception. Petitioner stated, in addition, that: (1) at
the time of the (March 12, 1993) dissolution of their marriage, Brian "was not born, and not
known to plaintiff to be in expectancy," and (2) the judgment for dissolution of marriage
contained no findings, including custody provisions, concerning Brian. According to petitioner,
the circuit court of Cook County made no subsequent determinations regarding Brian’s custody
or parentage. Petitioner added that, since Brian’s birth in October 1993, the child had "resided
with and been in [petitioner’s] lawful custody" but that, on October 31, 2005, pursuant to an
order of the circuit court of Cook County in case No. 93 D 2984 (the couple’s dissolution of
marriage action), temporary custody of Brian was transferred to respondent. Petitioner alleged
that, absent any previous determinations regarding Brian’s custody or parentage, the circuit court
lacked jurisdiction to transfer custody of Brian to respondent. Petitioner asked that she be
awarded temporary and permanent custody of Brian and that respondent be ordered to return
Brian to her custody "immediately."
On March 30, 2006, the circuit court of Cook County granted respondent leave to file a
petition to determine Brian’s paternity. In its order, the court stated:
"Leave is granted Daniel Sheetz within 28 days to file petition for court order that
sets the paternity of Brian Sheetz, the child of the parties[,] and Daniel Sheetz affirms that
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he is the father of child Brian Sheetz[,] and leave [is granted] to attach [petitioner’s]
pleading in Lake County which admits [respondent] is Brian’s father. This is a
ministerial act as the parties and the pending matter acknowledge said parenthood."
In his amended petition to establish paternity, respondent sought "an order making the
determination that the Respondent is the natural father of BRIAN SHEETZ." Respondent
pointed to section 5 of the Parentage Act, which states, in pertinent part:
"A man is presumed to be the natural father of a child if:
(1) he and the child’s natural mother are or have been married to each other, even
though the marriage is or could be declared invalid, and the child is born or conceived
during such marriage." 750 ILCS 45/5(a)(1) (West 2004).
Respondent noted in his amended petition that he and petitioner were married at the time
Brian was conceived. Respondent alleged that, "[f]rom the time of the birth of BRIAN both
parties have recognized that the Respondent was the father of BRIAN." Respondent added: "[a]t
no time during the last twelve (12) years has the Petitioner ever questioned the paternity of
BRIAN." Attached to respondent’s petition were, inter alia, (1) a copy of Brian’s birth
certificate, signed by respondent and petitioner, listing respondent as the father; (2) the June 14,
2001, circuit court order setting, according to respondent, "child support for both children"; (3) a
copy of petitioner’s March 2005 response to a request from respondent to admit facts, in which
petitioner admitted that "[t]wo minor children," Kevin and Brian, were born to her and
respondent; and (4) a copy of petitioner’s verified petition to determine parent-child relationship,
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filed in Lake County, in which, according to respondent, petitioner "admits that the Respondent
is the natural father of BRIAN."
Petitioner filed a pro se motion to dismiss respondent’s amended petition to establish
paternity, along with written argument in support of the motion. Petitioner subsequently filed a
pro se document titled "Petitioner Sheila Mannix’s Affirmative Defenses To Respondent Daniel
Sheetz’s 'Amended Petition To Establish Paternity.’" In these pleadings, petitioner advanced two
main arguments. First, she contended that the circuit court had no subject matter jurisdiction or
authority (under the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS
5/101 et seq. (West 2004))) to modify the parties’ previous judgment for dissolution of marriage
by determining Brian’s parentage. Petitioner noted that (1) Brian was "not in existence" at the
time the judgment for dissolution of marriage was entered, (2) this judgment made no mention of
Brian, and (3) the judgment for dissolution of marriage did not reserve jurisdiction to make any
parentage determination regarding Brian. Petitioner argued further that, since the Marriage Act
(according to petitioner) did not confer jurisdiction in this matter, any action to determine Brian’s
parentage must be brought under the Parentage Act of 1984 (750 ILCS 45/1 et seq. (West 2004))
rather than the Marriage Act. According to petitioner, respondent’s amended petition to establish
paternity was instead brought (under the Marriage Act) as a postjudgment motion with respect to
the parties’ 1993 judgment for dissolution of marriage.
Petitioner argued, in addition, that respondent’s petition to establish paternity was barred
by her prior petition to determine a parent-child relationship filed in Lake County. Petitioner
pointed to section 2-619(a)(3) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(3)
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(West 2004)), which provides, in pertinent part, that a defendant may file a motion for dismissal
on the ground "[t]hat there is another action pending between the same parties for the same
cause." Petitioner asserted that her Lake County petition and respondent’s Cook County petition
involved the same parties for the same cause. Petitioner contended that respondent’s petition
should be dismissed.
On May 19, 2006, the Cook County circuit court denied petitioner’s motion to dismiss
respondent’s parentage action. During the proceedings just prior to this denial, the court stated
that respondent’s amended petition to establish paternity was not brought under the Parentage
Act. According to the court, it was filed "under the petition to establish that the child born after
the divorce, conceived before the divorce, is a child of this relationship."
Prior to May 31, 2006, respondent moved in the circuit court of Lake County to transfer
venue to Cook County with regard to petitioner’s Lake County petition to determine a parent-
child relationship. Respondent also moved to dismiss this petition. On May 31, 2006, the Lake
County circuit court denied respondent’s motion to dismiss, but granted his petition to transfer
venue to Cook County. However, it does not appear from the record that petitioner’s Lake
County petition was ever docketed in Cook County, or that it was consolidated with case No. 93
D 2984, the parties’ action for dissolution of marriage in Cook County.
On July 25, 2006, the Cook County circuit court entered an order concluding, among
other things, that Brian Sheetz was "a child of the [parties’] marriage having been conceived
during the marriage, though born after the dissolution." The court declared Brian the child of
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respondent Daniel Sheetz. In its order, the court incorrectly stated that petitioner’s Lake County
parentage case had been "consolidated herein."
On July 31, 2006, petitioner filed a notice of interlocutory appeal pursuant to Supreme
Court Rule 306(a)(5) (210 Ill. 2d R. 306(a)(5)), and a petition for leave to appeal pursuant to
Rule 306(a)(5). On September 7, 2006, this court granted the petition for leave to appeal.
ANALYSIS
We note, initially, that respondent failed to file an appellee’s brief in this case. In such a
circumstance, a court of review has essentially two choices. "When the record is simple, and the
claimed errors are such that this court can easily decide them on the merits without the aid of an
appellee’s brief, this court should decide the appeal on its merits." Plooy v. Paryani, 275 Ill.
App. 3d 1074, 1088 (1995). "Otherwise, if the appellant’s brief demonstrates prima facie
reversible error and the contentions of the brief find support in the record, the judgment of the
trial court may be reversed." Plooy, 275 Ill. App. 3d at 1088, citing First Capitol Mortgage
Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
In the underlying proceedings relevant to this appeal, petitioner appeared, for the most
part, pro se. As a result, portions of the transcript of proceedings are somewhat confusing.
Moreover, the claims at issue are not as easily decided as they might be, given the absence of an
appellee’s brief. Nevertheless, we conclude that the record and the issues before us are clear
enough that the appeal should be decided on its merits.
Petitioner argues that the standard of review for this interlocutory appeal is de novo.
Petitioner acknowledges that, "in an interlocutory appeal, the scope of review is normally limited
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to an examination of whether or not the trial court abused its discretion in granting or refusing
the requested interlocutory relief." In re Lawrence M., 172 Ill. 2d 523, 526 (1996). However,
petitioner asserts that, where the question presented is one of law, a reviewing court determines it
independently of the trial court’s judgment. Lawrence M., 172 Ill. 2d at 526. According to
petitioner, the appeal at bar presents "a question of law only," and the standard of review
therefore is de novo. We agree.
Jurisdiction
Petitioner argues on appeal, as she did below, that the circuit court in the case at bar
lacked authority, in a proceeding under the Marriage Act, to determine the parentage of Brian (a
determination which, according to petitioner, should be made under the Parentage Act).
Specifically, petitioner argues: (1) "there is no statutory authority in the [Marriage Act] which
grants the circuit court the power to hear parentage proceedings in post-judgment matters,"1 and
(2) "[t]here is no provision in the Parentage Act which confers authority on the trial court in the
instant case to make a parentage determination" where, as in the case at bar, the child was "not in
existence" at the time the judgment for dissolution of marriage was entered, and the child was
"born out-of-wedlock post judgment to [respondent’s] former spouse and said parties never
remarried."
1
With no citation to authority, petitioner asserts that there is an exception where "a
judgment reserv[es] a parentage issue," but adds that this exception "is not relevant to the present
case."
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In discussing the Parentage Act, petitioner makes no mention of section 9, which deals
with jurisdiction. Section 9(a) states, in pertinent part:
"The circuit courts shall have jurisdiction of an action brought under this Act. In
any civil action not brought under this Act, the provisions of this Act shall apply if
parentage is at issue." 750 ILCS 45/9(a) (West 2004).
This provision contemplates that parentage issues will be raised in civil actions not brought under
the Parentage Act. In such instances, section 9(a) directs, the provisions of the Parentage Act
"shall apply."
In the case at bar (if respondent’s petition was not brought under the Parentage Act), this
is precisely what occurred. Respondent’s petition pointed to section 5(a)(1) of the Parentage Act,
which provides:
"(a) A man is presumed to be the natural father of a child if:
(1) he and the child’s natural mother are or have been married to each other, even
though the marriage is or could be declared invalid, and the child is born or conceived
during such marriage." (Emphasis added.) 750 ILCS 45/5(a)(1) (West 2004).
Attached to respondent’s petition was a copy of petitioner’s verified petition to determine a
parent-child relationship which she filed in Lake County. In her petition, petitioner stated: "The
plaintiff [petitioner] and the defendant [respondent] were married to each other on the date of the
conception of the minor child, B.S.S. [Brian]." In this assertion, petitioner admitted that Brian
was conceived during her marriage to respondent. The same assertion was made by respondent
in his verified amended petition to establish paternity. Accordingly, the presumption of paternity
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set forth in section 5(a)(1) arose. This presumption "may be rebutted only by clear and
convincing evidence." 750 ILCS 45/5(b) (West 2004). Elsewhere in her Lake County parentage
pleading, petitioner made another admission: "Defendant Daniel Sheetz is the father of the minor
child, B.S.S. [Brian]."
In declaring respondent the father of Brian, the circuit court of Cook County applied the
provisions of section 5(a)(1) of the Parentage Act. In its order of July 25, 2006, the court stated:
"the court having found that [Brian] is a child of the marriage, having been conceived during the
marriage, though born after the dissolution, the said child is the child of Daniel Sheetz, his
father." See In re Marriage of Allen, 265 Ill. App. 3d 208, 212 (1994) ("The provisions of the
[Parentage] Act apply to all cases to determine paternity, whether brought under that statute or
not").
Notwithstanding the foregoing, petitioner contends that the circuit court in the case at bar
lacked authority to determine Brian’s parentage. In support, petitioner points to In re Marriage
of Rhodes, 326 Ill. App. 3d 386 (2001). In Rhodes, the parties (Donald and Rhonda) had two
children, Ashley and Brian, during their six-year marriage, which was dissolved in 1993. In
2000, Donald executed a written consent to the adoption of Ashley. Donald subsequently moved
for a declaration that this consent was invalid. The trial court granted the motion, declaring the
consent void and of no effect On appeal, Rhonda argued that the trial court lacked jurisdiction to
enter this order. Rhonda noted that the instant action was initiated under the Marriage Act,
which, Rhonda argued, did not authorize the trial court to invalidate a written consent to
adoption. This court agreed, concluding that written consents to adoption were exclusively
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governed by the Adoption Act. Rhodes held that the trial court lacked jurisdiction to enter its
order, which was vacated.
Petitioner’s reliance on Rhodes is misplaced. Rhodes discusses the Adoption Act and,
tangentially, the Juvenile Court Act. However, it makes no mention of the Parentage Act, or of
section 9(a) of that Act, which provides that, "[i]n any civil action not brought under this Act, the
provisions of this Act shall apply if parentage is at issue." 750 ILCS 45/9(a) (West 2004).
Rhodes is distinguishable from the case at bar.
We reject petitioner’s argument that the circuit court lacked jurisdiction to hear
respondent’s amended petition to establish paternity. We note that, in keeping with section 9(a)
of the Parentage Act, the court in the case at bar applied the provisions of section 5(a)(1) of the
Parentage Act in rendering its decision.
Prior Pending Action
In her brief to this court, petitioner does not argue, as she did below, that respondent’s
amended petition to establish paternity is barred, pursuant to section 2-619(a)(3) of the Code, by
petitioner’s prior action in Lake County to determine parentage. Section 2-619(a)(3) (735 ILCS
5/2-619(a)(3) (West 2004)) provides that a defendant may move for dismissal on the ground
"[t]hat there is another action pending between the same parties for the same cause." We note
that, while section 2-619(a)(3) provides for a motion to dismiss on this ground, such dismissal is
not mandatory. "Even if the threshold 'same parties’ and 'same cause’ requirements are met,
section 2-619(a)(3) relief is not mandatory." Kapoor v. Fujisawa Pharmaceutical Co., 298 Ill.
App. 3d 780, 785 (1998).
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Though petitioner does not raise this section 2-619(a)(3) argument in the instant appeal,
she nevertheless points to the trial court’s statement, in its order of July 25, 2006 (declaring
parentage), that petitioner’s parentage action in Lake County "was consolidated herein."
Petitioner emphasizes that this statement indicating that her Lake County action was consolidated
with the case at bar "is not true." We have already noted that this statement was in error.
However, given that relief under section 2-619(a)(3) is not mandatory, as well as petitioner’s
failure to advance the section 2-619(a)(3) argument in this appeal, we conclude that, for purposes
of our decision here, this error is de minimis and of no effect regarding our judgment.
In sum, the circuit court correctly declared respondent the father of Brian. Our
conclusion in this regard is bolstered by the parties’ admissions that Brian was conceived during
their marriage (thereby invoking the section 5(a)(1) presumption of paternity) and petitioner’s
admissions and respondent’s acknowledgment that respondent was the father of Brian.
CONCLUSION
The judgment of the circuit court declaring respondent the father of Brian is affirmed.
Affirmed.
CAHILL and GARCIA, JJ., concur.
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