Find Legal Information

Petitioner Department of Public Aid (department) filed thischild support action against respondent Todd Graham based on Todd'svoluntary acknowledgment of paternity of Jonathen Graham. Claimingthat the acknowledgment was induced by fraud and material mistakeof fact, Todd challenged his paternity. The trial court determinedthat Todd's acknowledgment was conclusive as to paternity, grantedthe department's motion for summary judgment as to the issue ofparentage, and ordered Todd to pay child support. Todd appealed. We affirm and hold that a presumed father who failed to rescind hisvoluntary acknowledgment of paternity within the 60 days requiredby the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS45/5(b) (West 2000)) can challenge paternity only by seeking post-judgment relief pursuant to section 2-1401 of the Code of CivilProcedure (Civil Code) (735 ILCS 5/2-1401 (West 2000)).

FACTS

Jonathen was born to Connie Howard on December 4, 1996. Todd,who was not married to Connie, signed a voluntary acknowledgment ofpaternity at the hospital the day after Jonathen's birth. Theacknowledgment stated that Jonathen was Todd's biological son andincluded waivers of the right to request DNA testing and tochallenge paternity.

In May of 2000, the department filed a complaint against Toddrequesting child support and health insurance for Jonathen. Toddsent a rescission of his voluntary acknowledgment of paternity tothe department and the court. In response, the department sentTodd a letter stating that the recission was invalid because it didnot meet the statutory deadline and advising him that he couldchallenge the acknowledgment in court on the basis of fraud, duressor material mistake of fact. Todd answered the complaint andalleged that the acknowledgment was executed based on fraud andmaterial mistake of fact.

Several months later, Todd requested that the court order DNAtesting to determine Jonathen's paternity. In support of therequest, Todd provided affidavits of three persons which relatedthat Connie had admitted to them that Todd was not Jonathen'sfather. The department moved for summary judgment on the issue ofTodd's parentage. In response, Todd submitted an affidavit statingthat he has a disease which gives him only a small probability offathering a child, that Connie knew of his diagnosis, and that shemisrepresented to him that Jonathen was a "miracle baby." Toddalso submitted a transcript of a different court proceeding inwhich Connie testified under oath that a man other than Todd wasthe father of Jonathen and of her two other children.

After a hearing, the trial court issued a written opiniongranting the department's motion for summary judgment and findingthat there was "no genuine issue of material fact as to thepaternity of the child." As a result, the court ordered Todd topay child support, child support arrearages, and health insurancefor Jonathen. Todd appealed, and we affirm for the followingreasons.

ANALYSIS At issue in this case is the proper procedural means by whicha presumed father may challenge a voluntary acknowledgment ofpaternity. This court reviews a grant of summary judgment andquestions of statutory construction de novo. Outboard Marine Corp.v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204(1992) (summary judgment); Yang v. City of Chicago, 195 Ill. 2d 96,745 N.E.2d 541 (2001) (statutory construction).

While Todd argues that he properly challenged hisacknowledgment of paternity by raising his challenge in aproceeding to establish child support, the department argues thatthe challenge must be raised as a motion under section 2-1401 ofthe Civil Code (735 ILCS 5/2-1401 (West 2000)). We agree with thedepartment.

The Parentage Act establishes a presumption of paternity wherethe alleged father and the mother have signed an acknowledgment ofparentage. See 750 ILCS 45/5(a)(4) (West 2000). Under theParentage Act, the presumption is considered conclusive unless theacknowledgment is rescinded within 60 days of its execution or ofthe date of a proceeding regarding the child to which the signatoryis a party, whichever is earlier. 750 ILCS 45/5(b) (West 2000). The voluntary acknowledgment has the full force and effect of ajudgment and provides a basis for seeking child support withoutfurther proceedings to establish paternity. 750 ILCS 45/6(b) (West2000). Pursuant to the Parentage Act, after an acknowledgmentbecomes conclusive, ratification of paternity in a judicialproceeding is neither required nor permitted. 750 ILCS 45/6(c)(West 2000). After the 60-day deadline for rescission has passed,a presumed father may only challenge the acknowledgment in thelimited circumstances where he alleges fraud, duress, or materialmistake of fact. 750 ILCS 45/6(d) (West 2000).

Section 2-1401 of the Civil Code, which governs the methodwhereby relief from judgment is sought more than 30 days afterentry of the judgment, specifically references the Parentage Act.See 735 ILCS 5/2-1401 (West 2000). Section 2-1401 (735 ILCS 5/2-1401 (West 2000)) provides that in order for a father to pursuerelief from a judgment of paternity, he is limited to the groundsestablished in section 6(d) of the Parentage Act; e.g., fraud,duress, or material mistake of fact. (750 ILCS 45/6(d) (West2000)).

Based on our reading of the Civil Code and the Parentage Act,we conclude that a presumed father who signed a voluntaryacknowledgment of paternity but failed to rescind theacknowledgment within the statutory period cannot challengepaternity in a subsequent child support action. If the fatherwishes to challenge his acknowledgment of paternity on the limitedgrounds of fraud, duress, or material mistake of fact, the fathermust file a motion under section 2-1401 of the Civil Code in aseparate proceeding. See 750 ILCS 45/6(d) (West 2000); 735 ILCS5/2-1401 (West 2000).

Although Todd argues that he properly challenged paternity, hefailed to rescind the acknowledgment within 60 days. Thus, we holdthat the acknowledgment became conclusive with the full force andeffect of a judgment. Todd's recourse was to file a section 2-1401motion.

Under ordinary circumstances Todd would now be precluded fromchallenging his acknowledgment of paternity because he failed toproperly file a section 2-1401 motion within the applicable two-year statute of limitations. However, Todd argues that the trialcourt's order granting summary judgement creates the appearancethat it made a judgment on the issue of paternity when it statedthat "there is no genuine issue of material fact as to thepaternity of the child." We agree that Todd could reasonablypresume from this language that he was foreclosed from pursuingfurther action other than an appeal. In light of theseextraordinary circumstances and for the purposes of this case only,we hold that the statute of limitations shall be equitably tolledfrom the date of the trial court's summary judgment order. See Noakes v. National R.R. Passenger Corp., 312 Ill. App. 3d 965, 729N.E.2d 59 (2000) (noting that the principle of equitable tolling isappropriate in situations where a party has been, in someextraordinary way, prevented from asserting his rights).

The issue of whether the limitations period may be furthertolled during the period that Todd claims that Jonathen's paternitywas fraudulently concealed from him is not before this court. IfTodd chooses to challenge paternity, he may raise that issue in thetrial court.

For the foregoing reasons, the judgment of the circuit courtof Fulton County is affirmed.

Affirmed.

McDADE, J., concur.

HOLDRIDGE, J., dissenting.

JUSTICE HOLDRIDGE, dissenting:

I respectfully dissent. At issue is whether the respondent inan action by the Department of Public Aid may challenge his signedacknowledgment of paternity based upon fraud or material mistake offact. The majority holds that a respondent may not raise thosedefenses in the child support action, but must instead file amotion under section 2-1401 of the Code of Civil Procedure (CivilCode) (735 ILCS 5/2-1401 (West 2000)). I believe that a plainreading of section 6 of the Parentage Act (Parentage Act) (750 ILCS47/6 (West 2000)) and section 2-1401 of the Code provide otherwise.

Section 6(b) of the Parentage Act provides that a voluntaryacknowledgment of paternity, signed by the respondent, "has thefull force and effect of a judgment entered under this Act andserves as a basis for seeking a support order without any furtherproceedings to establish paternity." (Emphasis added.)(750 ILCS47/6(b)(West 2000)). Section 6(c) of the Act provides that nojudicial proceeding to ratify the voluntary acknowledgment iseither required nor permitted. (750 ILCS 47/6(c)(West 2000). Thus, the Parentage Act clearly anticipates that a petition forchild support could be the initial pleading in an action in thecircuit court.

Section 6(d) of the Parentage Act then provides that thevoluntary acknowledgment "may be challenged in court only on thebasis of fraud, duress, or material mistake of fact, with theburden of proof upon the challenging party." (Emphasis added.)(740ILCS 45/6(d)(West 2000)). A plain reading of the Parentage Actreveals no requirement that a voluntary acknowledgment of paternitymay be challenged in court, but only by filing a motion for relieffrom judgment pursuant to section 2-1401 of the Civil Code. Rather, the Parentage Act clearly provides that when the voluntaryacknowledgment is raised in a proceeding in court, it may bechallenged, "but only on the basis of fraud, duress, or mistake offact,* * *." (750 ILCS 45/6(d)(West 2000)).

Likewise, a plain reading of section 2-1401 of the Civil Codeindicates that a challenge to a voluntary acknowledgment ofpaternity is an exception to the provisions of section 2-1401,which provides: "Except as provided by Section 6 of the IllinoisParentage Act of 1984, there shall be no distinction betweenactions and other proceedings, statutory or otherwise, as to theavailability of relief, grounds for relief or the reliefobtainable." (735 ILCS 5/2-1401 (West 2000)).

I also note that this court, albeit in dicta, seemed toindicate that a respondent similarly situated to the one hereincould raise the defenses of fraud, duress, or material mistake offact in a response to a Public Aid petition for child support. In Department of Public Aid ex rel Allen v. Dixson, 323 Ill. App. 3d600, 602 (2001), this court stated, "[f]urthermore, subsection 6(d)provides that Dixson cannot challenge his voluntary acknowledgmentof paternity except on the basis of fraud, duress, or materialmistake of fact. There is no indication in the record that healleged any of these circumstances before the trial court."

Finally, I note a practical matter that renders the majority'sanalysis highly problematic. The majority, noting that after 60days a voluntary acknowledgment has the full for and effect of ajudgment, concluded that a person who wishes to challenge hisvoluntary acknowledgment must do so by filing a motion underSection 2-1401(b). However, filing such a motion would have beenimpossible for the respondent in this matter and for any otherrespondent similarly situated. Section 2-1401(b) of the Civil Codeprovides that a petition for relief from judgment under thatsection "must be filed in theproceeding in which the order orjudgment was entered * * *." (Emphasis added.)(735 ILCS 5/2-1401(b)(West 2000)). It is well settled that a section 2-1401petition arises out of the same proceeding in which the order orjudgment that it is directed to was entered. Burchett v. Goncher, 235 Ill. App. 3d 1091, 1098 (1991); City of DesPlaines v.Scientific Machinery Movers, Inc., 9 Ill. App. 3d 438, 442 (1972). Here, there was no prior proceeding, nor had a prior order orjudgment ever been entered. Simply put, Graham would not have ableto file a motion for relief from judgment under section 2-1401because no judgment existed from which to seek relief.

For the foregoing reasons, I believe that statutory frameworkestablishing the force and effect of voluntary acknowledgments ofpaternity, and the procedural methods for challenging them, are tobe found exclusively in within the Parentage Act. I dissent onthat basis.