November 27, 2001

No. 1-00-3793

JUSTICE GORDON delivered the opinion of the court:

Plaintiff, Beatryce Lipscomb (plaintiff), on behalf ofVeronica Lipscomb (V.L.), her minor daughter, appeals from thejudgement of the circuit court of Cook County which vacated aprevious judgment declaring defendant Tyree Wells (defendant) tobe V.L.'s father. On appeal, plaintiff contends that defendant'scollateral attack on this judgment is time-barred. Plaintiffalso contends that the time limitation under section 2-1401 wasnot extended by any fraudulent concealment which the defendanthas urged below. The plaintiff further contends that thedefendant does not qualify for relief under section 7(b-5) of theParentage Act of 1984 (750 ILCS 45/7(b-5)(West 2000)). Weaffirm.

On June 3, 1988, plaintiff brought a paternity actionagainst defendant Tyree Wells to have him adjudicated as thefather to her minor child, V.L., born in January of that year. In the verified complaint initiating the paternity action,plaintiff alleged that defendant was the natural father of V.L. On July 29, 1988, an agreed order of parentage and support wasentered against defendant together with a conditional order towithhold a monthly sum from his income for support of the child.

On February 2, 2000, defendant filed a verified petitionpursuant to section 2-1401 of the Code of Civil Procedure (735ILCS 5/2-1401 (West 2000)) and pursuant to section 7(b-5) of theParentage Act of 1984 (750 ILCS 45/7(b-5)(West 2000)) seeking anorder compelling a DNA test to determine the parentage of V.L. The petition further prayed that in the event of "a negative testresult" the court vacate the judgement entered on July 29, 1988,and all subsequent court orders concerning support and visitationand refund all child support payments made pursuant to saidorders.

The petition averred that defendant agreed to the entry ofthe July 29, 1988, judgment without the benefit of DNA testingbased upon representation of plaintiff that he was the naturalfather of V.L. and that plaintiff had no other relations with menat the time of conception. The petition also alleged that on orabout December 20, 1998, while defendant was at the home ofplaintiff and V.L., plaintiff, during the course of a quarrelover Christmas shopping money for V.L., stated that V.L. was notdefendant's child and that "she had been seeing another man atthe time of conception." The petition further alleged that a newchild who strongly resembled V.L. was subsequently born toplaintiff of an undisputedly different father. The petition thencharged that the judgement of July 29, 1988, "may have been theresult of fraud, misrepresentation or concealed facts" whichcould be determined pursuant to an order requiring submission bythe parties and the child to DNA testing. The petitionapparently further alleged that this concealment was notdisclosed until 1998 thereby tolling the limitations period undersection 2-1401.

On March 17, 2000, plaintiff moved to strike defendant'spetition on the grounds that it was time-barred under section 2-1401 because it was filed more than two years beyond the date ofthe judgment of paternity. Defendant responded thereto on April5, 2000, stating that the time period was tolled due toplaintiff's fraudulent concealment of the parentage of her child. On April 14, 2000, the trial court entered an order which deniedplaintiff's motion to strike. By that same order plaintiff wasgiven 28 days which to respond to the petition and the matter wasset for a hearing. On May 16 plaintiff filed a response todefendant's petition which challenged defendant's position as amatter of law but which did not contest its allegation of fact asto plaintiff's representation pertaining to the birth of V.L. in1988 and her contrary representation to defendant on December 20,1998.

The hearing on defendant's petition apparently commenced onJune 19, 2000. On that date the court entered an order findingthat defendant "has not complied with the provisions of 750 ILCS45/7 (b-5), he not having [sic] obtained genetic DNA testing." By that order the court continued the matter to July 25, 2000,for plaintiff to respond to defendant's argument "on theremaining issue of fraudulent concealment pursuant torespondent's [defendant's] section 2-1401 petition." The circuitcourt also ordered the minor child and plaintiff to be present.

On July 25, 2000, the court proceeded with the scheduledhearing although neither plaintiff nor the minor appeared. Atthat hearing the court found that the alleged representations onDecember 20, 1998, repudiating petitioner's paternity were infact made. According to the judge this was corroborated by thefurther fact that the mother ceased to allow the child tomaintain a relationship with the father since that date. Thetrial judge also found that as of that time in 1988 when theagreed order of parentage was entered, the mother concealed fromdefendant the material fact "that he was not the child's father." Accordingly, the court found that defendant was deprived of theopportunity to request a blood or DNA test in 1988 by themother's concealment of the material fact the "he was not thefather of this child."

On August 8, 2000, the court entered an order finding thatprior to the entry of the 1988 agreed order of paternity themother fraudulently misrepresented to defendant that he wasV.L.'s father; that the true facts of parentage were concealed bythe mother until December 1998, and that as a result of thatconcealment, defendant was denied the opportunity to request aDNA test. Accordingly, the court vacated the parentage judgemententered on July 29, 1988, and ordered the parties to submit toDNA testing.

On September 6, 2000, plaintiff filed a motion toreconsider, asserting an inconsistency between the court's oralrecitation in its order on July 25, 2000, and the subsequentwritten order entered pursuant thereto on August 8, 2000. Plaintiff claimed that under its oral pronouncement of July 25,2000, the court ordered DNA testing while continuing its rulingon the petition to vacate the 1988 agreed judgment, while thewritten order of August 8, 2000, purported to vacate thatjudgment and ordered the submission to DNA testing on August 18,2000, which neither plaintiff nor the minor had complied with. On October 11, 2000, the court denied plaintiff's motion toreconsider asserting that the written order entered on August 8,2000, shall stand since otherwise it would lack jurisdiction toorder DNA testing while the 1988 judgment remained standing.

On November 8, 2000, plaintiff filed a notice of appealseeking to appeal the order of August 8, 2000, and the order ofOctober 11, 2000, which denied reconsideration of the order ofAugust 8, 2000. This appeal followed.

Plaintiff first argues that the trial court lackedjurisdiction to open the parentage judgment of July 29, 1988,because the period for filing a section 2-1401 petition hadelapsed and had not been tolled by any fraudulent concealment ofV.L.'s parentage. In support, plaintiff argues that merelybecause she had relations with a man other than defendant duringthe time of V.L.'s conception does not indicate that she thenknew that defendant was not V.L.'s father. Thus her 1998assertion that defendant is not the father is at best a mereopinion or surmise, since she would have no sure way of knowingas between two sexual partners who the actual father was. Plaintiff contends that since she could not herself correctlyidentify V.L.'s father, she had no duty to inform defendant ofthe possibility that he was not the father. Moreover, shecontends that defendant could have requested a blood test in1988, as was his right under the Parentage Act of 1984. Consequently, plaintiff urges that defendant's section 2-1401petition was not timely filed as it was not filed within the two-year window and that window was not extended by any valid claimof fraudulent concealment concerning V.L.'s parentage. Wedisagree.

Section 2-1401 states that "the petition must be filed nolater than two years after the entry of the order or judgment. Time during which the person seeking relief is under legaldisability or duress or the grounds for relief is fraudulentlyconcealed shall be excluded in computing the period of twoyears." 735 ILCS 5/2-1401(c) (West 2000). "On presentation ofthe petition the court looks to the entire record and exercisessound judicial discretion as to whether or not the petition maybe filed, and if this discretion has not been abused, thedecision will not be disturbed." J.B. Inderrieden v. Gill, 373Ill. 180, 182, 25 N.E.2d 796, 797-98 (1940). "[S]ection 2-1401does not afford a litigant a remedy whereby he may be relieved ofthe consequences of his own mistake or negligence [citation] aparty relying on section 2-1401 is not entitled to relief unlesshe shows that through no fault or negligence of his own, theerror of fact or the existence of a valid defense was not made toappear to the trial court." Smith v. Airoom, Inc., 114 Ill. 2d209, 222, 499 N.E.2d 1381, 1387 (1986).

"The court must be satisfied that the alleged new matter wasnot known to petitioner and could not have been discovered,produced or used by him with the exercise of reasonable diligenceupon the former trial." J.B. Inderrieden, 373 Ill. at 182, 25N.E.2d at 797-98. "Ordinarily fraudulent concealment sufficientto toll a statute of limitations consists of affirmative actsdesigned to prevent discovery of a cause of action or grounds forrelief and silence alone does not constitute fraudulentconcealment." Halas v. Executor of Estate of Halas, 112 Ill. App3d 940, 950, 445 N.E.2d 1264, 1271 (1983).

The appellate court's decision in In re Marriage of Tzoumas,187 Ill. App 3d 723, 732-33, 543 N.E.2d 1093, 1098 (1989), ishighly persuasive. In that case the former husband filed asection 2-1401 petition to vacate a judgment in dissolution ofmarriage which incorporated a marriage settlement agreement andchild support provisions. The ex-husband averred in his section2-1401 petition that he relied upon representations by his ex-wife that he was the father of the child at issue when he enteredinto a child support agreement. He further alleged that his ex-wife knew that he was not the father when the judgment wasentered. The court held that these facts as pled wouldconstitute fraudulent concealment by the ex-wife so as to warrantsection 2-1401 relief.⁽¹⁾

We find this reasoning applicable to the instant case. Plaintiff was not merely silent on the issue of V.L.'s paternity. Rather, plaintiff asserted with certainty in her in her initialverified complaint of June 3, 1988, that defendant was V.L.'sfather. We thus hold that the trial court did not abuse itsdiscretion in finding that plaintiff fraudulently concealed thetrue paternity of her child.

This is consistent with the holdings of other jurisdictions. Generally courts have held that concealment of the paternity of achild from a man held liable for paternity of that child isfraud. See, e.g., Koelle v. Zwiren, 284 Ill. App. 3d 778, 787-88, 672 N.E.2d 868, 874-75 (1996) (action for fraud will liewhere defendant mother allegedly deceives plaintiff aboutparentage of her child); H.P.A. v. S.C.A., 704 P.2d 205, 208(Alaska 1985); cf. Winner v. Winner, 177 N.W. 680, 682 (Wis.1920) ("the concealment by the woman of the paternity of herchild is a fault so grievous that there is no excuse orpalliation for it"). Such fraud has been held to be sufficientto allow a collateral attack on a judgement adjudicatingparentage. For example, in Love v. Love, 959 P.2d 523 (Nev.1998), the ex-husband alleged in a collateral attack on hisdivorce judgement that his ex-wife had concealed the trueparentage of the child of whom their divorce judgement hadadjudged him to be the father. The supreme court of Nevada notedthat "that which keeps one party away from court by conductpreventing a real trial on the issues is extrinsic fraud andforms a sufficient basis for equitable relief from the judgment." Love, 959 P.2d at 526. The court then held that a genuine issueof material fact existed as to the fraudulent concealment. Love,959 P.2d at 526. See also, Arndt v. Arndt, 336 Ill. App. 65, 78,82 N.E.2d 908, 914 (1948) (plaintiff was entitled to annulment ofhis marriage to defendant upon proof that defendant misled him tobelieve that the child she was pregnant with prior to theirmarriage was plaintiff's, even though plaintiff failed toinvestigate whether or not he was the father); Evans v. Gunter,366 S.E.2d 44, 46 (S.C. Ct. App. 1988) (ex-husband permitted tocollaterally attack divorce judgment adjudging him father of ex-wife's child upon showing of extrinsic fraud by wife); Dawkins v.Dawkins, 494 So. 2d 282, 284 (Fla. Dist. Ct. App. 1986) (award ofalimony in divorce judgment vacated on husband's motion forrelief from final judgment where wife perpetrated a fraud byconcealing parentage of children from husband).

Plaintiff relies heavily upon Ptaszek v. Michalik, 238 Ill.App. 3d 72, 606 N.E. 2d 115 (1992). In the facts of Ptaszek, theplaintiff putative father (Ptaszek) sought post-judgment reliefunder a section 2-1401 petition from an agreed order of paternityentered more than two years earlier. In the spring of 1981Ptaszek entered into a sexual relationship with the defendantmother (Michalik) and Michalik became pregnant in August of thatyear. In 1982, two or three months after the birth of the child,Michalik told Ptaszek that she was certain that he was thefather. Michalik, who had earlier rejected marriage to Ptaszek,introduced him to the man whom she did eventually marry aboutfour months later. In the meantime, Ptaszek acted as the fatherof the child, participating in visitations and providingfinancial support. In 1984, two years after the birth of thechild, Ptaszek instituted paternity proceedings which lasteduntil December of 1986 when he and Michalik entered into anagreed order which identified him as the father. Ptaszek, 238Ill. App. 3d at 75-6, 606 N.E.2d at 118.

On August 3, 1989, Ptaszek filed a petition under section 2-1401 of the Code of Civil Procedure seeking to vacate thepaternity order of December 16, 1986. In support he averred thaton May 30, 1989, Michalik told him that he was not the father. Ptaszek's petition apparently alleged that Michalik fraudulentlyconcealed the fact that he was not the father of her child andthus he should be permitted to file his petition beyond thenormal two-year limitation. In her response, Michalik statedthat at the time of conception Ptaszek had "no reason to believethat he was" her exclusive sexual partner and that "he had noticeand knowledge of the circumstances surrounding" the birth at thetime she filed her paternity action in 1984. Ptaszek, 238 Ill.App. 3d at 75, 606 N.E.2d at 117.

At the hearing on his section 2-1401 petition, Ptaszekattempted to introduce a blood test taken by the parties and thechild which would have proven that he was not the father. Thetrial court precluded the admission of the test on relevancygrounds. The court then denied the section 2-1401 petition onthe grounds that it was not timely. In so doing, the trial courtrejected Ptaszek's contention of fraudulent concealment. Ptaszek, 238 Ill. App. 3d at 75-6, 606 N.E.2d at 118.

On appeal, the judgment of the trial court was affirmed. The court reasoned that Ptaszek was not prevented fromchallenging the finding of his paternity at the time the originaljudgment of paternity was entered. The court held that Michalikdid not affirmatively stop Ptaszek from ascertaining that he wasnot the child's father since her initial assertion that he wasthe father was merely an opinion, as was her later assertion thathe was not the father. The court stated as long as Michalik hadmore than one sexual partner during that period of conception,there was no way to be absolutely certain of his paternitywithout a blood test, which he failed to request. The courtfurther argued that "even if we were to consider the results ofthe blood test at this juncture, we believe that while they maytend to show mutual mistake of fact regarding biologicalpaternity, they are not indicative of actual fraud." Ptaszek,238 Ill. App 3d at 79; 606 N.E.2d at 120. Further the courtstated that there was no detrimental reliance because Ptaszek notonly made no effort to challenge paternity but rather made anaffirmative effort on his own initiative to establish that he wasthe father.

The opinion of the majority in Ptaszek, however ischallenged by a very cogent dissent (Ptaszek, 238 Ill. App. 3d at79-82, 606 N.E.2d at 120-22 (Jiganti, P.J., dissenting)), withwhich we agree and which attacks the conclusion of the majoritypoint by point. First, the dissent aptly contests the conclusionby the majority that Michalik's representations did notconstitute fraudulent concealment since she had no way ofascertaining the correct parentage of the child. The dissentnotes that if Michalik was not in a position to know who thefather was, she did not know that Ptaszek was the father. Yetshe represented to Ptaszek that he was the father. The dissentreasons that when a party claims to know a material fact withcertainty, yet knows that she does not have that certainty, theassertion constitutes a fraudulent misrepresentation. Ptaszek,238 Ill. App. 3d at 80, 606 N.E.2d at 121 (Jiganti, P.J.,dissenting). This is particularly significant under the facts ofthe case at bar since it was the belief of defendant inplaintiff's representation of certainty that precluded defendantfrom seeking a blood or DNA test before permitting judgement tobe entered against him.

Moreover, the dissent contends that in representing toPtaszek that he was in fact the father, Michalik was implicitlyrepresenting that during the period of conception she had onlyone sexual partner, a representation that was categoricallyfalse. If Michalik was having a sexual relationship with morethan one man during the time of conception, but asserted that shewas certain that Ptaszek was the father, that assertionconstituted a fraudulent misrepresentation. The reasoning of thedissent as to this issue applies equally to the case at bar.

The dissent also disagrees with the position of the majoritythat Ptaszek should have asked for blood test before the judgmentof parentage was entered. The dissent correctly asserts thatPtaszek had a right to rely upon the categorical representationof the mother that he was the father. It would make little senseto compel a putative father to conduct an independentinvestigation in the face of a clear and categoricalrepresentation of a mother (who is also his sexual partner) as tohis parentage. Cf. Arndt, 336 Ill. App. 3d at 78, 82 N.E.2d at914 (husband entitled to annulment of his marriage to wife uponproof that she misrepresented that he was the father of herchild, conceived before marriage, "even though he made no attemptto ascertain the truth or falsity of the allegedmisrepresentations"). This is particularly true where, as in theinstant case, that representation of parentage was made by themother in a sworn and verified petition filed in court. Cf.Loraitis v. Kukulka, 1 Ill. 2d 533, 538, 116 N.E.2d 329, 331(1953) ("perjury may be assigned on a verified pleading"). Moreover, approaching the same contention from a slightlydifferent angle, the "general rule is that one who hasintentionally deceived the other to his prejudice is not to beheard to say, in defense of the charge of fraud, that theinnocent party ought not to have trusted him or was guilty ofnegligence in so doing." Arndt, 336 Ill. App. 3d at 76, 82N.E.2d at 913. Accordingly, notwithstanding the holding of themajority, reason and established legal principals as well aspersuasive authority from our and other jurisdictions compel theadoption here of the position taken by the dissenting justice inPtaszek. See, e.g., Koelle, 284 Ill. App. 3d at 787-88, 672N.E.2d at 874-75; H.P.A., 704 P.2d at 208; Winner, 177 N.W. at682; Love, 959 P.2d at 526; Arndt, 336 Ill. App. at 78, 82 N.E.2dat 914; Evans, 366 S.E.2d at 46; Dawkins, 494 So. 2d at 284.

Moreover, we note that even if we were to stand with themajority in Ptaszek, the facts in our case are readilydistinguishable. In refusing to permit a late filing of thesection 2-1401 petition the Ptaszek court upheld thedetermination of the trial court under abuse of discretionreview. In the case at bar, unlike in Ptaszek, the trial courtin the exercise of its discretion granted plaintiff's section 2-1401 petition. Thus while to rule in favor of the putativefather in Ptaszek would have required a finding that the trialcourt abused its discretion, here our finding in favor of theplaintiff putative father validates the trial court's exercise ofits discretion.

Moreover here, unlike in Ptaszek, defendant never took aninitiative in asserting his paternity. He only acquiesced to thejudgment establishing his paternity after he was sued by themother in a verified complaint asserting his paternity underoath. Thus there can be little question in the case sub judiceas to the materiality of the mother's representation that he,rather than anyone else, was the father.

We further note that the majority in Ptaszek expressedconcern about upsetting the father/child relationship that hadbeen established in the interim period between the putativefather and the child. The majority expressed reluctance tooverturn that relationship by granting a delayed section 2-1401petition. No such relationship is currently present in the caseat bar, as the trial court found that plaintiff terminateddefendant's relationship with V.L. Unlike under the facts inPtaszek, there does not appear to be any concern on the part ofplaintiff in the instant case for the disruption of any father-daughter relationship that may have existed prior to the filingof the section 2-1401 petition. This is corroborated by thetrial court's finding that the filing of the petition wastriggered by the mother's attempt to curtail plaintiff'svisitation which provided the context for defendant's repudiationof plaintiff's parentage to his face. This is furthercorroborated by the fact that plaintiff and her child contravenedthe trial court's order of June 19, 2000, when they chose not toappear in court. Thus this action, unlike the action in Ptaszek,is apparently pursued by the State without the cooperation of themother herself.

Defendant next argues that he is entitled to relief undersection 7 (b-5) of the Parentage Act, which provides in relevantpart as follows:

"An action to declare the nonexistence of the parentand child relationship may be brought subsequent to anadjudication of paternity in any judgment by the manadjudicated to be the father pursuant to thepresumptions in section 5 of the Act if, as a result ofdeoxyribonucleic acid (DNA) tests, it is discoveredthat the man adjudicated to be the father is not thenatural father of the child. Actions brought by theadjudicated father shall be brought by verifiedcomplaint. If, as a result of deoxyribonucleic acid(DNA) tests, the plaintiff is determined not be thefather of the child, the adjudication of paternity andany orders regarding custody, visitation, and futurepayments of support may be vacated." (Emphasis added.)750 ILCS 45/7(b-5) (West 1998).

Defendant contends this provision authorizes a suit tocollaterally attack a judgment of parentage without firstprocuring DNA results. We disagree.

We note that in the case of In re Marriage of Lubbs andDukes, 313 Ill. App 3d 968 (2000), the third district rejectedthe contention that an action under that provision can bemaintained to open a judgment without first having obtained DNAresults. The court held that this contention clearly contravenesthe explicit language of section 7(b-5). Accord Jackson v.Newsome, 1-00-2890, slip op. at 18-19 (September 25, 2001).

We are inclined to adopt the analysis in Lubbs sinceotherwise the statute would open the floodgates to encourage merefishing expeditions seeking to open any judgment of parentagepreviously imposed upon an unwilling father. As noted in Lubbssuch an impact was expressly decried by the legislative sponsorof the Bill. See Lubbs, 313 Ill. App. 3d at 971; In re B.C., 176Ill. 2d 536, 542-43, 680 N.E.2d 1355, 1359 (1997) ("Assuming,arguendo, that the words of the statute are unclear, we mayconsult legislative history as an aid to construction"). Thelegislative history of Public Act 90-715 further confirms thatDNA evidence is a necessary prerequisite to the filing of apetition. During the floor debate, the bill's Senate sponsorstated that the legislation "does not force anybody to have a DNAtest." 90^th Ill. Gen. Assem., Senate Proceedings, April 2, 1998,at 51 (statements of Senator Fawell). The House sponsor of thelegislation explained that "[y]ou have to have the test to knowwhether you can file or not." 90^th Ill. Gen. Assem., HouseProceedings, May 5, 1998, at 34 (statements of RepresentativePankau). However, we also note that this issue is currentlypending before our supreme court. Kates v. Kates, No. 4-00-0130(2002) (unpublished order under Supreme Court Rule 23), appealallowed, 194 Ill. 2d 581, 747 N.E.2d 357 (2001). In any event weneed not dispositively determine this issue here since we haveupheld the right to relief under section 2-1401 which was allowedby the trial court.

Accordingly for the reasons stated above, the judgment ofthe circuit court of Cook County is affirmed.

Affirmed.

BURKE, P.J., and McBRIDE, J.,concur.

1. While Tzoumas did not involve a petition filed outside thetwo year window, there was still a contention that the petitionwas not filed soon enough to show due diligence. In that contextthe court held that the fraudulent concealment was sufficient toexcuse the filing of the petition beyond the time parameters ofdue diligence.