|
In re Parentage of Griesmeyer, No. 1-98-0905 1st Dist. 12/18/98 |
FIFTH DIVISION
December 18, 1998
No. 1-98-0905
RYAN M. GRIESMEYER, a Minor (Nathalie Griesmeyer, Petitioner-Appellee, v. Thomas LaRosa, Respondent (Brian S. Griesmeyer, Additional Party
Respondent-Appellant)). Court of Cook County. Honorable Kathleen G. Kennedy, Judge,
presiding. JUSTICE GREIMAN delivered the opinion of the court:
Petitioner, Nathalie Griesmeyer, on behalf of her
daughter Ryan M. Griesmeyer, a minor, filed a petition to establish the
paternity of the child. She joined Brian Griesmeyer, her first husband, Ryan
being born during their marriage. She further joined her current husband, Thomas
LaRosa. The circuit court subsequently denied the section
2-619 motion to dismiss (735 ILCS 5/2-619 (West 1996)) filed by respondent Brian
S. Griesmeyer. This court granted Brian's application to hear the appeal of the
circuit's order pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308).
The question of law presented in this interlocutory
appeal, as stated in the circuit court's order of March 6, 1998, is "whether or
not the fact that a minor child was represented by an attorney and guardian
ad litem in an ultimately uncontested dissolution proceeding
in which the wife had originally disputed the husband's paternity, precludes the
relitigation of the issue of parentage in a subsequent action brought by the
wife on behalf of said minor child." We find that the parentage petition is barred by the
judgment of dissolution, where a court-appointed guardian
ad litem represented the minor during the dissolution
proceedings. Accordingly, we reverse the circuit court's order denying Brian's
motion to dismiss. Nathalie and Brian were married in November 1991
and, during the course of their marriage, the minor was born in June 1992. In
September 1994, dissolution of marriage proceedings commenced when Brian filed a
petition for dissolution of marriage and Nathalie responded with a
counterpetition for dissolution of marriage, in which she denied that Brian was
the father of the minor. The trial court then appointed a guardian ad
litem to represent the interests of the minor child. Eventually, in
January 1996, the circuit court entered an uncontested judgement for dissolution
of their marriage, which included the court's finding that the minor was "born
as a result of this marriage." On August 22, 1997, Nathalie filed a petition to
establish father and child relationship, alleging that respondent Thomas LaRosa
(LaRosa) was the biological father of the minor. By the time this petition was
filed, Nathalie was married to LaRosa, who has never appeared, personally or by
counsel, in any of the judicial proceedings either in the circuit court or
during this appeal. In response, Brian filed a section 2-619 motion to dismiss,
asserting that the doctrine of collateral estoppel barred relitigation of the
identity of the minor's natural father based on the findings set forth in the
dissolution proceeding and the position taken therein by the minor through her
attorney and guardian ad litem. In his petition for dissolution of marriage, Brian
stated that the minor was born of the marriage between himself and Nathalie. In
both her answer to Brian's petition for dissolution of marriage and her
counterpetition for dissolution of marriage, Nathalie denied that Brian was the
biological father of the minor. In his response to Nathalie's counterpetition,
Brian denied the allegation that he was not the biological father of the minor
and further asserted that Nathalie was precluded from seeking a declaration of
the nonexistence of the parent and child relationship because she had failed to
make such a parentage claim within two years after the birth of the minor. By
order dated September 19, 1994, the circuit court appointed the public guardian
to represent the interests of the minor. At a prove-up hearing on January 18, 1996,(1)
Brian testified that one child was born of the marriage, i.e., the
minor. Nathalie testified that she heard the summary of the terms and conditions
of the marital settlement agreement and the joint parenting order to which Brian
testified. On the same date, the circuit court granted Brian's petition for
dissolution of marriage and entered a judgment of dissolution, which
incorporated a marital settlement agreement and a joint parenting agreement. The
order also expressly discharged the office of the public guardian from any
further obligations. In its judgment for dissolution of marriage, the
circuit court specifically found "[t]hat there was one child born as a result of
this marriage; namely Ryan M. Griesmeyer, born June 18, 1992." The marital
settlement agreement also stated that "there was one child born as a result of
this marriage; namely RYAN M. GRIESMEYER, age 3 years, born June 18, 1992."
The marital settlement agreement provided that the
spouses, Nathalie and Brian, agreed that each is a fit and proper person to have
custody of the minor and that joint custody would be in the best interests of
the minor. Furthermore, Brian was obligated to pay child support twice a month;
maintain adequate hospitalization insurance for the minor; pay 50% of all
ordinary medical expenses not covered by insurance; pay any amount deemed to be
extraordinary expenses incurred for medical, doctor, hospital, surgical, dental,
psychiatric and psychological care; contribute toward the college education of
the minor; maintain all existing life insurance policies on his life with the
minor as irrevocable beneficiary during the designated time period; and pay
one-half for the minor's day care costs and for the minor's attendance at a
parochial or other private school, if such attendance is decided. The spouses further agreed that their joint custody
of the minor would accord with the "joint parenting agreement/order," which was
a nine-page attachment providing, inter alia, that the minor
would reside primarily with Nathalie and Brian would have the specified
visitation schedule. The joint parenting agreement further provided that the
minor "shall continue to use the name: RYAN M. GRIESMEYER and the Mother shall
not, for any reason or purpose including her possible remarriage, cause or
permit the child to use or be designated by any other name." More than 1 1/2 years later, on August 22, 1997,
Nathalie filed a petition to establish father and child relationship, seeking to
declare LaRosa the biological father of the minor. On September 16, 1997, Brian
filed a motion to dismiss Nathalie's petition. To this motion, Brian attached
his affidavit in which he attested that he had consistently and regularly paid
every child support payment directed in the judgment for dissolution of marriage
and had consistently and regularly exercised all visitation with the minor as
provided in the judgment. Brian noted that the minor was represented throughout
the course of the dissolution of marriage proceeding by her own attorney and
public guardian. Brian maintained that the position taken by the minor through
her attorney and guardian during the dissolution proceedings and the findings
set forth in the dissolution judgment bar relitigation of the identity of the
minor's natural father under the doctrine of collateral estoppel. On November 12, 1997, Nathalie filed a response to
Brian's motion to dismiss, asserting that the doctrines of collateral estoppel
and res judicata do not apply because the minor was neither in
privity with Nathalie and Brian nor a party to the dissolution of marriage
action. Nathalie maintained that the minor has an unqualified statutory
entitlement to determine the identity of her biological father under the
Illinois Parentage Act of 1984 (Act) (750 ILCS 45/1 et seq.
(West 1996)). On January 20, 1998, the circuit court entered a
memorandum opinion and order, denying Brian's motion to dismiss. The circuit
court concluded that the minor is not barred by the resolution of the paternity
issue in the prior dissolution proceeding. In addition, the circuit court
appointed Joy Feinberg as attorney and guardian ad litem for
the minor with the specific duty to recommend through a report or appropriate
pleading filed with the court whether it is in the minor's best interest that
this parentage action proceed. Thereafter, on March 6, 1998, the circuit court
granted Brian's motion for leave to appeal its interlocutory order. This court
then granted leave to appeal pursuant to Rule 308. Our review of a ruling on a section 2-619 motion to
dismiss is de novo. In re Paternity of Rogers, 297
Ill. App. 3d 750, 754 (1998). In considering a section 2-619 motion, we accept
all well-pleaded facts and the reasonable inferences drawn from those facts as
true, and also consider the pleadings, affidavits, and depositions.
Paternity of Rogers, 297 Ill. App. 3d at 754. Our inquiry on review,
absent an issue of material fact, is whether the dismissal was proper as a
matter of law. Paternity of Rogers, 297 Ill. App. 3d at 754. The legal
question before us in the present appeal raises an issue of first impression.
Brian asserts that the instant parentage action is
barred by the doctrines of res judicata and collateral
estoppel based on the prior judgment for dissolution of marriage because the
minor was represented by a guardian ad litem during the
dissolution proceedings. On the other hand, Nathalie contends that the mere
appointment of a guardian ad litem does not trigger the
preclusive doctrines to bind the minor to the findings in the dissolution
judgment and does not bar the minor of her fundamental, statutory right to
determine a parent-child relationship under the Act. The Illinois Supreme Court addressed the effect of a
prior dissolution judgment on a subsequent paternity action in Simcox v.
Simcox, 131 Ill. 2d 491 (1989). In Simcox, the mother (Deborah)
and the defendant (Christopher) were married at the time the minor plaintiff was
born and their subsequent dissolution judgment provided that the minor child was
"born to the parties during their marriage." Simcox, 131 Ill. 2d at
495. Thereafter, the mother married Jeffrey and filed a paternity action, on
behalf of the minor child, seeking to determine the nonexistence of a
parent-child relationship between the minor and the defendant, and the existence
of a father-child relationship between the minor and Jeffrey. Simcox,
131 Ill. 2d at 493. The defendant filed a section 2-619 motion to dismiss,
contending that the judicial finding of paternity in the uncontested judgment of
dissolution of marriage of the mother and the defendant barred the later
paternity action under the doctrines of collateral estoppel and res
judicata. Simcox, 131 Ill. 2d at 494. The supreme court
disagreed with the defendant and held that the dissolution judgment did not
constitute a bar to the paternity action filed by the minor child because he was
not a party or privy to the dissolution proceedings. Simcox, 131 Ill.
2d at 497. As explained in Simcox, "[t]he doctrine of
collateral estoppel provides that an issue which has been addressed by a court
of competent jurisdiction cannot be relitigated in a later action between the
same parties or their privies in the same or a different cause of action."
Simcox, 131 Ill. 2d at 496. After noting that the minor child was not a
party to the dissolution proceedings, the Simcox court held "that
children are not privies of their parents in dissolution proceedings
and, as such, are not bound by findings of paternity in such proceedings unless
they are parties to the proceedings." (Emphasis in original.) Simcox,
131 Ill. 2d at 497. Thus, collateral estoppel did not bar the minor child from
bringing the paternity action. Simcox, 131 Ill. 2d at 497. Similarly, the Simcox court explained that
the doctrine of res judicata bars any subsequent actions
between the same parties or their privies on the same cause of action where a
final judgment on the merits has been rendered by a court of competent
jurisdiction. Simcox, 131 Ill. 2d at 497. Since the minor child was
neither a party to the prior dissolution proceedings nor a privy of her parents,
the Simcox court held that her subsequent paternity action was not
barred by the doctrine of res judicata. Simcox, 131
Ill. 2d at 497. In a specially concurring opinion in
Simcox, Justice Ryan wrote, in full, as follows: The day to which Justice Ryan referred is now here.
Unlike the Simcox case, the court in the dissolution proceedings of
Nathalie and Brian indeed appointed the public guardian to represent the
interests of the minor. The progeny of Simcox have commented upon,
although not answered, the question reserved by Justice Ryan. The only notable remark that directly contravenes
the position taken in the Simcox special concurrence appears in In
re A.K., 250 Ill. App. 3d 981 (1993) (the dismissal of a former husband
from a juvenile proceeding instituted by a great-grandmother alleging abuse of
the child was not reversible error). In A.K., the fourth district
commented that the majority opinion in Simcox, in contrast to the
special concurrence, did not mention that the appointment of a guardian
ad litem in dissolution proceedings would make a difference in
a subsequent parentage action by a child. A.K., 250 Ill. App. 3d at
984. One justice in A.K., however, disagreed with the majority's
comment and affirmatively stated that the child (A.K.) "was a party to the
dissolution action here, because A.K. was represented by a guardian ad
litem." A.K., 250 Ill. App. 3d at 993 (Cook, J., dissenting).
The fifth district expressly agreed with the special
concurrence in Simcox and held that the minor child's subsequent
parentage petition was not barred by res judicata and
collateral estoppel where a guardian ad litem had not been
appointed in the prior dissolution proceeding. In re Rodgers, 279 Ill.
App. 3d 648, 654 (1996). The court noted the special concurrence in
Simcox and stated, "[l]ikewise, we believe that had a guardian
ad litem been appointed in the instant case, the outcome might
have been different." Rodgers, 279 Ill. App. 3d at 654. Other decisions that have not barred parentage or
paternity actions based on prior judgments include In re Parentage of
Mayberry, 222 Ill. App. 3d 1008 (1991), and Department of Public Aid ex
rel. Skelton v. Liesman, 218 Ill. App. 3d 437 (1991). In Mayberry,
the second district held that a minor child's parentage action was not barred by
the unwed mother and the putative father's prior cash settlement, which resulted
in the dismissal of the mother's paternity action against the putative father.
In Mayberry, the "settlement was made without an acknowledgement of
paternity" (Mayberry, 222 Ill. App. 3d at 1009) and no monies were
allocated or set aside for the minor (Mayberry, 222 Ill. App. 3d at
1010). Under these circumstances, the court found that "the minor was neither a
party to the prior action nor were her interests adequately represented."
Mayberry, 222 Ill. App. 3d at 1010. The court noted the lack of any
representation of the minor in the settlement between the mother and the
putative father: "[T]here is no indication that [the minor's] interests were
represented in the earlier settlement. *** Here, [the minor's] interests are
only represented by implication, i.e., the court merely mentions that
the settlement was in [the minor's] best interest, but she was neither a party
to the agreement nor in her own proper person by a guardian, nor by a guardian
ad litem." Mayberry, 222 Ill. App. 3d at 1010-11.
In Liesman, the fourth district held that
the doctrine of res judicata did not bar the Illinois
Department of Public Aid (the Department) from bringing a parentage action on
behalf of the minor against the putative father. The earlier proceeding that
allegedly operated as a bar was a parentage action brought by the mother with
the Department, which was eventually dismissed with prejudice as a sanction for
the mother's failure to comply with discovery. Liesman, 218 Ill. App.
3d at 439. The court particularly noted that, in the earlier proceeding, the
putative father did not request joinder of the minor or "request appointment of
a guardian ad litem." Liesman, 218 Ill. App. 3d at
440. Preclusive doctrines have been applied to bar
subsequent actions in In re Marriage of Klebs, 196 Ill. App. 3d 472
(1990), Paternity of Rogers, 297 Ill. App. 3d 750 (1998), and
Draper v. Truitt, 250 Ill. App. 3d 654 (1993). In Klebs, the
first district held that a prior judgment for dissolution of marriage, which
stated that the child had been born to the marriage between John and Becki,
barred the mother Becki from bringing a subsequent cause of action to vacate the
portions of the dissolution judgment establishing that the child was born to the
marriage. Klebs, 196 Ill. App. 3d at 479. The mother was barred from
raising the issue of the child's parentage by the finding of paternity in the
dissolution decree, notwithstanding that the biological father of the child
definitively was determined to be the mother's then current husband, James
Klebs. The court acknowledged that the Act would not bar an action by or on
behalf of the child, but in the appeal before it, "no guardian ad
litem was appointed to represent" the child. Klebs, 196 Ill.
App. 3d at 483. In Rogers, the second district held that a
former husband was bound by a prior dissolution judgment and, thus, his
parentage petition was barred on the grounds of res judicata
and collateral estoppel. The Rogers court further stated that "[w]e
hasten to add, however, that we do not decide here whether the child is
precluded from relitigating the issue of his parentage." Rogers, 297
Ill. App. 3d at 755. In Draper, the first district held that an
unwed mother's second petition seeking a paternity determination against the
same defendant was barred by the doctrine of res judicata
where the first paternity action was adjudicated on the merits in a bench trial
and found that the named defendant was not the father. The Draper court
found the Simcox decision to be distinguishable because Simcox
involved an uncontested dissolution proceeding where two prospective fathers
were arguing over who was the father and there was no adjudication of paternity.
Draper, 250 Ill. App. 3d at 658. Although it did not mention Justice
Ryan's special concurrence in Simcox, the Draper court held
that "the child's interests were adequately represented in the first action,"
which the mother had initiated by filing a complaint through the Illinois
Attorney General's Office. Draper, 250 Ill. App. 3d at 659. Subsequently, the fourth district, in a decision
authored by Justice Cook, questioned the soundness of the Draper
decision on the basis that it seemed "to abandon the requirement of privity in
cases where the issues [were] fully litigated." In re Marriage of
Mesecher, 272 Ill. App. 3d 73, 78 (1995). The facts of the
Mesecher case, however, are significantly different than the previously
discussed cases. The underlying problem in Mesecher was the failure of
the father to pay child support. When the father did not meet his financial
obligations, the mother sought and received public aid assistance. By accepting
public aid, the mother assigned to the Department her rights to child support up
to the amount provided by the Department. The Department eventually initiated
collection proceedings against the father and obtained a court order for a
specified amount of money against the father. Most notably, the mother "was not
represented by counsel at" the Department proceedings and the court order
obtained by the Department only covered arrearages accruing after the mother had
begun to receive public aid. Mesecher, 272 Ill. App. 3d at 75-76. The
order at issue in the Mesecher decision was an order later obtained by
the mother against the father for arrearages owed to her, not the Department.
The Mesecher court rejected the father's argument that the order
secured by the Department should bar the order obtained by the mother. The
Mesecher court found that the Department and the mother were not
privies and suggested that "[p]erhaps the solution for child support payors is
to make sure that both the recipient and the [Department] are parties in each
proceeding." Mesecher, 272 Ill. App. 3d at 78. Justice Cook's majority
position in Mesecher is completely consistent with his dissent in
A.K., i.e., legal representation of a person invokes status as
a party or privity, whether it be counsel for a mother in the Department
proceedings in Mesecher or counsel for a minor in the dissolution
proceedings in A.K.. By statute, a court in a dissolution proceeding may
appoint an attorney as guardian ad litem to represent the
interests of a minor child. 750 ILCS 5/506 (West 1994). "Where a trial court has
notice that a minor's interests are not properly represented, it is the duty of
the trial court to appoint a guardian ad litem to safeguard
and protect those interests." Majidi v. Palmer, 175 Ill. App. 3d 679,
685 (1988) (where the putative father's complaint for a declaratory judgment for
parentage was properly dismissed, the court remanded the matter for the
appointment of a guardian ad litem, who was ordered "to file a
petition to determine paternity if she finds that such action is in the best
interests of the child"). "[T]he appointment of a guardian ad litem is not a
mere formality." Rom v. Gephart, 30 Ill. App. 2d 199, 208 (1961),
citing McCarthy v. Cain, 301 Ill. 534 (1922). As the representative of
a minor, the guardian ad litem is a party to the action.
In re Marriage of Apperson, 215 Ill. App. 3d 378, 385 (1991) (a
guardian ad litem represented the two minors in a proceeding
instituted by their divorced parents, who each filed separate petitions to
modify the joint custody order and obtain sole custody of the minors).
The duty of a guardian ad litem is
"to call the rights of the minor to the attention of the court, to present their
interests and claim for them such protection as under the law they are
entitled." Rom, 30 Ill. App. 2d at 208. The imperative and guiding
principal by which a guardian ad litem operates is to act in
the best interests of the minor. Most particularly for purposes of the present
appeal, "a paternity determination turns on the best interests of the child."
In re Custody of D.A., 201 Ill. App. 3d 810, 823 (1990). A paternity
determination is not always in the best interests of the child. Such
decision necessarily must rest on myriad factors that cannot be encompassed in
one per se rule of law, but instead must be decided on a
case-by-case basis. See Custody of D.A., 201 Ill. App. 3d at 822-23 (a
guardian ad litem need not bring a paternity action where such
action would not be in the minor's best interests); see also In re Marriage
of Koenig, 211 Ill. App. 3d 1045, 1051 (1991)(the failure of counsel for a
minor to involve the minor in the mother's paternity petition "could well have
been construed by the circuit court as acting in the child's best interests").
Moreover, while courts recognize that "one's background, heritage, and heredity
[are] important to one's identity, [they] do[] not fall within any heretofore
delineated zone of privacy implicitly protected within the Bill of Rights."
In re Roger B., 84 Ill. 2d 323, 329 (1981) (an adoptee does not have a
fundamental right to examine his adoption records). Most recently, In re Marriage of Adams, 297
Ill. App. 3d 156 (1998), a husband (Roger) filed a petition for dissolution of
marriage, alleging that he was not the father of the two children born during
his marriage to his wife (Colleen). Colleen filed petitions against two other
men (Arnold and Ziegler), alleging that they were the respective fathers of the
two children. One father (Ziegler) agreed to provide financial support to his
one child and, thus, was not a party to the appeal. As to the second child, the
trial court concluded that husband Roger was not the father of the child and
Arnold stipulated that he was the biological father of the child. Arnold
appealed, arguing that Roger was estopped from ceasing to act as the child's
father. The fourth district held that husband Roger was not estopped from
asserting his lack of paternity as to the child. Adams, 297 Ill. App.
3d at 160. In a special concurrence, Justice Cook noted that husband Roger's
denial of paternity in the dissolution case was "somewhat surprising" because he
had developed a father-child relationship with the child for over 10 years.
Adams, 297 Ill. App. 3d at 161 (Cook, J., specially concurring).
Justice Cook further observed that, notwithstanding this 10-year relationship
and the possibility that Roger should have brought his nonexistence of paternity
action sooner, "the guardian ad litem for the children has
apparently concluded that it is not worth doing so, and concluded that it is
best that Roger be out of the picture." Adams, 297 Ill. App. 3d at
161-62 (Cook, J., specially concurring). In the underlying dissolution proceeding, the
paternity of the minor clearly was raised in the petitions and responses filed
by Brian and Nathalie in 1994. The circuit court immediately ordered the
appointment of a guardian ad litem to represent the minor.
More than one year later (September 1994 to January 1996), Nathalie and Brian
entered into a marital settlement agreement and a joint parenting agreement,
which was incorporated into the uncontested judgment of dissolution. The court
order also discharged the public guardian from any further obligations. In the
judgment of dissolution, the circuit court found that the minor was "born as a
result of this marriage." Thus, the issue of the minor's paternity began as a
dispute, continued through the legal process with the minor represented by a
guardian ad litem, and ended as an uncontested judicial
finding. Under these circumstances, to exclude the minor as a nonparty or
nonprivy of the dissolution judgment where the minor was represented by a
court-appointed guardian ad litem renders such legal
representation a nullity. We believe that the relitigation of the minor's
paternity in this parentage petition is barred by the prior, uncontested
judgment of dissolution where the minor was represented by a guardian
ad litem during the dispute over the minor's paternity.
Although no Illinois court has addressed this factual setting, the Missouri
Court of Appeals faced the identical scenario and held that the mother and
daughter were collaterally estopped from relitigating the paternity issue where,
during the prior dissolution proceedings, the paternity of the minor was
contested and the trial court had appointed a guardian ad
litem for the minor. Missouri ex rel. Miller v. Miller, 859
S.W.2d 153, 154 (Mo. Ct. App. 1993). The Missouri court found: We agree with this holding and believe that the case
law of Illinois, from the special concurrence in Simcox through its
progeny, supports such a holding. Accordingly, we reverse the circuit court's
order denying Brian's motion to dismiss. Reversed and remanded. HARTMAN and THEIS, JJ., concur. The record in the present appeal contains only an eight-page excerpt from the
transcript of the January 18, 1996, hearing.
In re PARENTAGE OF
Appeal from the
Circuit
"I concur with the holding of the opinion filed in this case. I
point out, however, that pursuant to section 506 of the Illinois Marriage and
Dissolution of Marriage Act [citation], in dissolution cases the court may
appoint an attorney to represent the interests of a minor, or a guardian
ad litem for the child. It appears that no such attorney or
guardian ad litem was appointed in this case. By my
concurrence I do not intend to convey the impression that I would have favored
a similar holding had an attorney or guardian ad litem been
appointed for the child in this dissolution proceeding. Such a case, in my
mind, would have presented a different question, the resolution of which must
be reserved for another day." Simcox, 131 Ill. 2d at 499 (Ryan, J.,
specially concurring).
"The [trial] court determined the paternity issue in the divorce
action. Although [the minor] was not a party, the court-appointed guardian at
litem [sic] was present at the dissolution hearing and represented
[the minor's] interest. When a child's interest is represented by a guardian
at litem at a prior proceeding, collateral estoppel bars a child from
relitigating the paternity issue." Miller, 859 S.W.2d at 154.