                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                      In re Parentage of H.L.B., 2012 IL App (4th) 120437




Appellate Court            In re: the Parentage of H.L.B., a Minor, HEATHER L. BOARD,
Caption                    Petitioner-Appellee, v. BRADLEY A. ENTRICAN, Respondent-
                           Appellant, and THE DEPARTMENT OF HEALTHCARE AND
                           FAMILY SERVICES, Intervenor-Appellee.



District & No.             Fourth District
                           Docket No. 4-12-0437


Argued                     September 5, 2012
Filed                      September 27, 2012


Held                       Respondent lacked standing to file a petition to declare the nonexistence
(Note: This syllabus       of a parent-child relationship under section 7(b-5) of the Parentage Act
constitutes no part of     of 1984, the action was barred by the two-year statute of limitations, and
the opinion of the court   his action was barred as a matter of res judicata.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Edgar County, No. 11-F-16; the Hon.
Review                     Matthew L. Sullivan, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 J. Steven Ayres (argued), of Cox, Phillips, Weber, Tedford, Heap &
Appeal                     Ayres, P.C., of Robinson, for appellant.

                           Bruce Baber (argued), of Paris, for appellee Heather L. Board.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and John P. Schmidt (argued), Assistant Attorney
                           General, of counsel), for appellee Department of Healthcare and Family
                           Services.


Panel                      JUSTICE COOK delivered the judgment of the court, with opinion.
                           Justices Appleton and Knecht concurred in the judgment and opinion.



                                             OPINION

¶1          In 2001, petitioner, Heather L. Board, accused respondent, Bradley A. Entrican, of being
        the father of her son, H.L.B. On April 18, 2001, the Illinois Department of Healthcare and
        Family Services (Department) entered a default order of paternity against Bradley. On
        January 18, 2012, Bradley filed a petition to declare the nonexistence of a parent-child
        relationship under section 7(b-5) of the Illinois Parentage Act of 1984 (Parentage Act) (750
        ILCS 45/7(b-5) (West 2010)). Heather and the Department each filed a motion for
        involuntary dismissal of the petition under section 2-619 of the Code of Civil Procedure
        (Code) (735 ILCS 5/2-619 (West 2010)). The trial court granted the motions, finding that (1)
        Bradley did not have standing to file the action, (2) the action was barred by the running of
        the statute of limitations, and (3) the action was barred as a matter of res judicata. Bradley
        appealed, and we affirm.

¶2                                     I. BACKGROUND
¶3          On September 15, 1999, Heather gave birth to H.L.B. Prior to H.L.B.’s birth, Heather had
        been involved in a sexual relationship with Bradley. Heather and Bradley were never
        married.
¶4          On March 17, 2001, the Department served Bradley with a notice of alleged paternity and
        support obligation. The notice provided that Bradley had been identified by Heather as
        H.L.B.’s father. The notice also stated that Bradley must attend an interview with the
        Department on April 18, 2001. Finally, the notice warned that if Bradley failed to appear for
        the scheduled interview he may be “LEGALLY DECLARED TO BE THE FATHER OF
        THE CHILD NAMED IN THIS NOTICE AND ORDERED TO PAY SUPPORT FOR THE
        CHILD FROM BIRTH UNTIL THE CHILD IS AT LEAST 18 YEARS OLD.”

                                                 -2-
¶5         On April 18, 2001, Bradley failed to appear for the scheduled interview. As a result, the
       Department entered an administrative paternity order finding Bradley in default and
       adjudicating him H.L.B.’s legal father.
¶6         On May 30, 2001, Bradley sent a letter to the Department appealing the default order and
       requesting genetic testing. The Department offered Bradley genetic testing and, as a result,
       he withdrew his appeal.
¶7         On approximately June 12, 2001, Bradley signed an agreement to be bound by the results
       of genetic testing (hereinafter referred to as the 2001 agreement). The 2001 agreement
       provided that if the genetic testing results showed a combined paternity index of at least 500
       to 1, then the Department would enter an administrative paternity order finding Bradley to
       be H.L.B.’s father. However, if Bradley failed to appear for the scheduled genetic testing,
       then the Department would enter an administrative paternity order finding him to be the
       father by default.
¶8         On July 7, 2001, the Department mailed Bradley an administrative order for genetic
       testing. The order stated that the testing was to be performed on July 17, 2001, at the
       National Guard Armory in Paris, Illinois.
¶9         On July 17, 2001, Heather and H.L.B. appeared for the scheduled genetic testing, but
       Bradley failed to appear. As a result, the April 18, 2001, administrative paternity order
       adjudicating Bradley as H.L.B.’s father remained in effect and Bradley began paying child
       support.
¶ 10       On November 17, 2004, Bradley filed a petition to determine parentage in Edgar County
       case No. 04-F-33. In response, the Department intervened and filed a motion for involuntary
       dismissal under section 2-619 of the Code (735 ILCS 5/2-619 (West 2010)). On January 12,
       2005, the trial court dismissed the petition on the basis of res judicata. The court found that
       the administrative paternity order issued by the Department on April 18, 2001, established
       Bradley as H.L.B.’s father.
¶ 11       In summer 2011, Bradley met H.L.B. for the first time. After the meeting, Bradley
       requested that Heather present H.L.B. for a deoxyribonucleic acid (DNA) test performed by
       DNA Diagnostics Center. On August 23, 2011, Heather voluntarily presented H.L.B. for the
       DNA test. The test results indicated that Bradley was not H.L.B.’s natural father because the
       probability of his paternity was zero.
¶ 12       On January 18, 2012, Bradley filed a petition to establish the nonexistence of a parent-
       child relationship under section 7(b-5) of the Parentage Act (750 ILCS 45/7(b-5) (West
       2010)). Bradley alleged that the genetic testing performed on August 23, 2011, excluded the
       possibility that he is H.L.B.’s father. He also sought the vacatur of any Department or court
       orders regarding future child support payments.
¶ 13       In response, on January 26, 2012, the Department filed a motion for involuntary dismissal
       under section 2-619 of the Code (735 ILCS 5/2-619(a)(4), (a)(5) (West 2010)). The
       Department alleged that Bradley’s petition was barred by the following: (1) res judicata due
       to the administrative paternity order entered on April 18, 2001; (2) res judicata under the
       terms of the January 12, 2005, order entered in Edgar County case No. 04-F-33; and (3) the
       running of the applicable statute of limitations. The Department further claimed that Bradley

                                                -3-
       lacked standing under section 7(b-5) of the Parentage Act, because he neither married
       Heather nor signed a voluntary acknowledgment of paternity.
¶ 14       On February 3, 2012, Heather filed a motion for involuntary dismissal. 735 ILCS 5/2-
       619(a)(4), (a)(5), (a)(9) (West 2010). The motion incorporated the Department’s claims and
       further alleged that Bradley waived any future right to contest paternity by signing the 2001
       agreement. She also sought attorney fees under section 17 of the Parentage Act (750 ILCS
       45/17 (West 2010)) and Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994).
¶ 15       After a hearing on April 11, 2012, the trial court granted the motions to dismiss. The
       court found that Bradley lacked standing to file a petition to establish the nonexistence of a
       parent-child relationship under section 7(b-5) of the Parentage Act. More specifically, the
       court determined that Bradley’s signing of the 2001 agreement did not qualify as a voluntary
       acknowledgment of paternity. The court further determined that the petition was barred by
       res judicata and the running of the statute of limitations. Last, the court continued the cause
       for a hearing on Heather’s claim for attorney fees under section 17 of the Parentage Act and
       requested that Heather file a financial affidavit. On April 17, 2012, Heather filed her
       financial affidavit.
¶ 16       On May 8, 2012, Bradley filed this appeal.

¶ 17                                      II. ANALYSIS
¶ 18       On appeal, Bradley argues that (1) he has standing to bring a cause of action to establish
       the nonexistence of a parent-child relationship under section 7(b-5) of the Parentage Act, (2)
       he filed his claim within the applicable two-year statute of limitations period, and (3) the
       doctrine of res judicata does not apply.
¶ 19       The Department argues that this court lacks jurisdiction to consider Bradley’s appeal. It
       contends that Bradley filed his notice of appeal before all pending claims in the matter were
       resolved because an issue of outstanding attorney fees remained.

¶ 20                                       A. Jurisdiction
¶ 21       The Department claims that this court lacks jurisdiction to consider Bradley’s appeal,
       because he filed his notice of appeal before all pending claims in the matter were resolved.
       On April 11, 2012, the trial court dismissed Bradley’s petition to establish the nonexistence
       of a parent-child relationship and continued the cause for a hearing on Heather’s claim for
       attorney fees under section 17 of the Parentage Act. On May 8, 2012, Bradley filed his notice
       of appeal. At that time, the court had not held a hearing as to whether Heather was entitled
       to attorney fees under section 17 of the Parentage Act.
¶ 22       In Deckard v. Joiner, 44 Ill. 2d 412, 417, 255 N.E.2d 900, 902-03 (1970), the Illinois
       Supreme Court determined that an order establishing fatherhood in a paternity action is “final
       for purposes of review where matters left for future determination are merely incidental to
       the ultimate rights which have been adjudicated by the judgment or decree. [Citations.]” In
       Deckard, the trial court entered an order finding paternity on March 27, 1962. The trial court
       also reserved for future determination the amount of support and pregnancy-related expenses


                                                -4-
       for which the father was liable. Id. at 414, 255 N.E.2d at 901. On appeal, the supreme court
       found that the trial court’s order was neither final nor appealable, because the determination
       of the amount of support and expenses constituted a “matter of substantial controversy
       between the parties.” Id. at 417, 255 N.E.2d at 903. However, the supreme court determined
       that once the trial court resolved the issues of support and expenses in February 1963, there
       existed a final order from which appeal should have been taken. Id.
¶ 23       We find that the issue of attorney fees is incidental to the ultimate rights adjudicated in
       a paternity action. Unlike the child support and pregnancy-related expenses at issue in
       Deckard, a determination of attorney fees is not directly tied to a finding of paternity.
       Moreover, in a paternity action, the amount of attorney fees is not a matter of substantial
       controversy, because attorney fees are not intrinsic to the underlying action. Accordingly, this
       court has jurisdiction to consider Bradley’s appeal.

¶ 24                              B. Applicability of Section 7(b-5)
¶ 25       The issue of whether Bradley has standing to file a nonpaternity claim is really a question
       of whether section 7(b-5) of the Parentage Act, a very unusual section, applies to this case.
       Section 7(b-5) provides:
           “An action to declare the non-existence of the parent and child relationship may be
           brought subsequent to an adjudication of paternity in any judgment by the man
           adjudicated to be the father pursuant to the presumptions in Section 5 of this Act if, as
           a result of deoxyribonucleic acid (DNA) tests, it is discovered that the man adjudicated
           to be the father is not the natural father of the child. Actions brought by the adjudicated
           father shall be brought by verified complaint. If, as a result of the deoxyribonucleic acid
           (DNA) tests, the plaintiff is determined not to be the father of the child, the adjudication
           of paternity and any orders regarding custody, visitation, and future payments of support
           may be vacated.” 750 ILCS 45/7(b-5) (West 2010).
¶ 26       Section 7(b-5) of the Parentage Act references the presumptions set forth in section 5.
       “Section 5 contains four types of presumptions of paternity, two arising out of marriage (750
       ILCS 45/5(a)(1), (a)(2) (West 2002)), and two arising out of voluntary acknowledgments
       (750 ILCS 45/5(a)(3), (a)(4) (West 2002)).” People ex rel. Department of Public Aid v.
       Smith, 212 Ill. 2d 389, 397, 818 N.E.2d 1204, 1209 (2004). The presumptions are as follows:
               “(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;
                   (2) after the child’s birth, he and the child’s natural mother have married each
               other, even though the marriage is or could be declared invalid, and he is named, with
               his written consent, as the child’s father on the child’s birth certificate;
                   (3) he and the child’s natural mother have signed an acknowledgment of paternity
               in accordance with rules adopted by the Department of Healthcare and Family
               Services under Section 10-17.7 of the Illinois Public Aid Code; or


                                                 -5-
                    (4) he and the child’s natural mother have signed an acknowledgment of
                parentage or, if the natural father is someone other than one presumed to be the father
                under this Section, an acknowledgment of parentage and denial of paternity in
                accordance with Section 12 of the Vital Records Act.” 750 ILCS 45/5(a) (West
                2010).
¶ 27       In his brief, Bradley admits section 5’s marital presumptions do not apply. He further
       admits he did not sign a voluntary acknowledgment of paternity under section 5(a)(3).
       Somewhat inconsistently, however, Bradley argues “he should be considered to have signed
       an acknowledgment of parentage pursuant [to] § 5(a)(4) in that [he] signed an Agreed Order
       to be Bound by the Results of Genetic Testing, and then failed to appear for testing with the
       knowledge that his failure to appear would result in a default Administrative Paternity Order
       being entered.” In support of his argument that section 5(a)(4) applies, Bradley points to the
       following language in Jackson v. Newsome, 325 Ill. App. 3d 372, 380, 758 N.E.2d 342, 348
       (2001):
           “[S]ubsection 7(b-5)’s reference to the presumptions in section 5 *** is not meant to
           incorporate the minute and ministerial technical requirements of section 12 of the
           Records Act, which are twice removed from the original 7(b-5) reference and which are
           not relevant to its purpose in differentiating between adjudications based on
           presumptions and those based on more solid scientific evidence such as a blood test.”
¶ 28       A major problem with Bradley’s argument is that the Illinois Supreme Court, in Smith,
       held that section 7(b-5) should be narrowly construed, and a section 7(b-5) action may only
       be brought under the first two presumptions, the marital presumptions. Smith, 212 Ill. 2d at
       406-07, 818 N.E.2d at 1214. Where the presumption of paternity arises out of a voluntary
       acknowledgment, section 7(b-5) does not apply. Smith, 212 Ill. 2d at 407, 818 N.E.2d at
       1214. Instead, section 6(d) applies: “A signed acknowledgment of paternity entered under
       this Act may be challenged in court only on the basis of fraud, duress, or material mistake
       of fact.” 750 ILCS 45/6(d) (West 2010). In discussing the differences between the two types
       of presumptions, the supreme court emphasized that it would be “unreasonable to allow a
       man *** to undo his voluntary acknowledgment years later on the basis of DNA test results,
       when his paternity was based not on a mere marital presumption that he was the child’s
       father but on his conscious decision to accept the legal responsibility of being the child’s
       father.” Smith, 212 Ill. 2d at 406, 818 N.E.2d at 1214.
¶ 29       Bradley seeks to distinguish this case from Smith: “In this case, [Bradley] did not sign
       a voluntary acknowledgment of paternity.” However, that argument is inconsistent with his
       argument, above, that he signed a voluntary acknowledgment in accordance with section
       5(a)(4). Bradley argues that Smith’s distinction between marital presumptions and voluntary
       acknowledgments is mere dicta, and a man adjudicated to be the father pursuant to a marital
       presumption “also, de facto, acknowledges his paternity if he does not request a DNA test.”
       What Bradley ignores, however, is that we have more than a “mere marital presumption” in
       this case; Bradley signed an agreed order to be bound by the results of genetic testing, was
       afforded an opportunity to have that testing, and failed to appear for the testing, knowing that
       a default order would be entered.


                                                 -6-
¶ 30      Last, Smith was decided after Jackson, and is controlling on this issue.

¶ 31                                  C. Statute of Limitations
¶ 32       Even if section 7(b-5) applies, Bradley’s nonpaternity claim violates the applicable
       statute of limitations. Section 8(a)(4) of the Parentage Act, which specifically refers to
       section 7(b-5), provides that actions to declare the nonexistence of paternity “shall be barred
       if brought *** more than 2 years after the petitioner obtains actual knowledge of relevant
       facts.” 750 ILCS 45/8(a)(4) (West 2010). Bradley argues that he obtained “actual
       knowledge” that he was not H.L.B.’s natural father only upon receipt of the DNA test results.
       In support of his argument, Bradley dismisses his 2004 petition to declare nonexistence of
       paternity as “merely speculative,” and points to the dictionary definition of “actual
       knowledge.” However, section 8(a)(4) does not require knowledge of all facts, only
       “relevant” facts. 750 ILCS 45/8(a)(4) (West 2010). The “actual knowledge of relevant facts”
       that triggers the two-year limitations period is not limited to the receipt of DNA test results.
       “Rather, the two-year limitations period can be triggered by obtaining such knowledge from
       any reasonably reliable source.” Jackson, 325 Ill. App. 3d at 385-86, 758 N.E.2d at 352.
       Bradley is essentially saying that his 2004 action was frivolous, and his 2001 failure to
       appear for genetic testing, knowing that an administrative order would be entered, is
       irrelevant.
¶ 33       In support of his argument, Bradley cites Donath v. Buckley, 319 Ill. App. 3d 83, 744
       N.E.2d 385 (2001). In Donath, the mother filed a petition to establish the nonexistence of a
       father-child relationship with respect to the man who had been adjudicated as the father of
       her minor daughter. The mother testified that she knew from the time she was pregnant that
       the adjudicated father was not the natural father. Donath, 319 Ill. App. 3d at 85, 744 N.E.2d
       at 386. The Third District construed the mother’s petition as one to establish the
       nonexistence of a father-child relationship under section 7(b) of the Parentage Act (750 ILCS
       45/7(b) (West 2010)). Section 8(a)(3) requires that section 7(b) actions be brought within “2
       years after the petitioner obtains knowledge of relevant facts.” 750 ILCS 45/8(a)(3) (West
       2010). The court determined that, in the situation where the mother believed that the man
       adjudicated as the child’s father was in fact the father and DNA test results showed
       otherwise, the communication of the test results would be the first time the mother obtains
       knowledge of relevant facts that would trigger the two-year statute of limitations. Donath,
       319 Ill. App. 3d at 87, 744 N.E.2d at 388. However, the court went on to conclude that, by
       her own admission, the mother had knowledge that the individual in question was not the
       father at the time she learned of the pregnancy, which was more than three years before she
       filed the action. Id. The court held that the mother’s action was barred by the statute of
       limitations.
¶ 34       Donath is not directly applicable to this case because nonexistence of paternity suits
       brought by a mother are inherently different from nonexistence of paternity suits filed by an
       apparent father. Moreover, Donath is contrary to Bradley’s argument because the Third
       District found the existence of relevant facts concerning the father’s nonpaternity before
       genetic testing was performed. Id. at 87, 744 N.E.2d at 388. Like the mother in Donath,


                                                 -7-
       Bradley had actual knowledge of relevant facts concerning the child’s paternity before any
       DNA testing was performed. Bradley’s 2004 petition demonstrates that at the time he filed
       his petition to establish parentage he had serious doubts as to whether he was H.L.B.’s
       natural father. Moreover, Bradley failed to show for genetic testing to determine paternity
       in 2001.
¶ 35       Additionally, Bradley argues that Heather refused to submit to DNA testing in 2004, and
       that tolled the statute of limitations. However, Heather had no obligation to submit to DNA
       testing in 2004. The issue had already been resolved. The language in section 8(a)(4) that
       “[t]he 2-year period shall not apply to periods of time where the natural mother or the child
       refuses to submit to deoxyribonucleic acid (DNA) tests” (750 ILCS 45/8(a)(4) (West 2010))
       refers only to DNA tests which the mother or child is required to take. The language does not
       mean that whenever an apparent father demands a DNA test, the statute of limitations period
       begins to run again.

¶ 36                                 D. Doctrine of Res Judicata
¶ 37       Under the doctrine of res judicata, a final judgment on the merits constitutes an absolute
       bar to any subsequent action involving the same claim, demand, or cause of action. Rodgers
       v. St. Mary’s Hospital of Decatur, 149 Ill. 2d 302, 311-12, 597 N.E.2d 616, 621 (1992). The
       three requirements of the doctrine of res judicata are (1) a final judgment on the merits
       rendered by a court of competent jurisdiction, (2) an identity of cause of action, and (3) an
       identity of parties or their privies. Bagnola v. SmithKline Beecham Clinical Laboratories,
       333 Ill. App. 3d 711, 717, 776 N.E.2d 730, 736 (2002). Bradley does not dispute that the first
       and third requirements for the application of the doctrine of res judicata are satisfied.
¶ 38       In terms of the doctrine’s second requirement, identity of cause of action, Bradley rejects
       the argument that the administrative order in 2001, entered after he failed to appear for
       genetic testing, and the dismissal of his 2004 petition in the trial court on the basis of res
       judicata are now res judicata. Bradley argues that the 2001 and 2004 petitions were petitions
       to determine parentage, while the present one is a petition to establish nonpaternity, and
       therefore res judicata does not apply, citing In re Marriage of Lubbs, 313 Ill. App. 3d 968,
       730 N.E.2d 1139 (2000). We reject Bradley’s argument. Under the doctrine of collateral
       estoppel, findings of fact can be res judicata in a second action, even if there are separate
       causes of action. And was not Bradley’s 2004 action one to establish nonpaternity? Surely
       he was not suing to establish paternity. Accordingly, we find that the doctrine’s second
       requirement was satisfied.
¶ 39       Of course, section 7(b-5) was added “specifically to allow an adjudicated father to
       collaterally attack [a] previous adjudication if subsequent DNA tests established that he is
       not the father.” Jackson, 325 Ill. App. 3d at 383, 758 N.E.2d at 350. That does not mean that
       res judicata never applies where section 7(b-5) is involved. Where a final judgment has
       determined that section 7(b-5) does not apply, that judgment is res judicata. It is only where
       a judgment has simply determined paternity (on the basis of a marital presumption) that a
       subsequent action may be brought under section 7(b-5).



                                                -8-
¶ 40                               III. CONCLUSION
¶ 41   For the foregoing reasons, we affirm the trial court’s judgment.

¶ 42   Affirmed.




                                           -9-
