                              Illinois Official Reports

                                      Appellate Court



                    In re Marriage of Ostrander, 2015 IL App (3d) 130755



Appellate Court          In re MARRIAGE OF JERRY L. OSTRANDER, Petitioner-
Caption                  Appellee, and STARR E. OSTRANDER, Respondent-Appellant.


District & No.           Third District
                         Docket No. 3-13-0755


Filed                    February 25, 2015


Held                       In dissolution proceedings where the paternity of one of the two
(Note: This syllabus children respondent mother had during the marriage was disputed, but
constitutes no part of the petitioner husband’s motion to declare nonpaternity was untimely and
opinion of the court but respondent waived the issue, the trial court’s order of nonpaternity
has been prepared by the was reversed, a guardian ad litem was appointed for the child, and the
Reporter of Decisions cause was remanded for a hearing on child support.
for the convenience of
the reader.)



Decision Under           Appeal from the Circuit Court of Will County, No. 12-D-957; the
Review                   Hon. Robert P. Brumund, Judge, presiding.




Judgment                 Reversed in part; cause remanded.



Counsel on               Mary Beth Szudarek, of Law Offices of Janusonis and Szudarek P.C.,
Appeal                   of Lockport, for appellant.

                         Jeannine M. Parker-Ross, of Joliet, for appellee.
     Panel                    JUSTICE SCHMIDT delivered the judgment of the court, with
                              opinion.
                              Justices Holdridge and Lytton concurred in the judgment and opinion.


                                               OPINION

¶1         Petitioner, Jerry L. Ostrander, filed a petition for dissolution of his marriage to
       respondent, Starr E. Ostrander. In the petition, Jerry asserted that one of the two children
       born to Starr during the marriage, R.O., was not Jerry’s biological child. After
       deoxyribonucleic acid (DNA) testing confirmed that Jerry was not the biological father of
       R.O., Jerry filed a pleading entitled “Motion Regarding Finding No Paternity.” The court
       granted Jerry’s motion, finding that Jerry was not R.O.’s biological father and therefore had
       no support obligation. The court denied Starr’s motion to reconsider the order and the
       judgment of dissolution of marriage. Starr appeals, arguing that Jerry’s motion regarding
       paternity was barred by the relevant statute of limitations. We reverse in part, vacate in part,
       and remand for further proceedings.

¶2                                                  FACTS
¶3         On May 8, 2012, Jerry filed a petition for dissolution of marriage. In the petition, Jerry
       acknowledged that two children were born to his wife Starr during the time they were
       married: J.O., born in 1997, and R.O., born in 2004. The petition alleged that “upon
       information and belief, [R.O.] is not the biological [child] of [Jerry].”
¶4         In her response, Starr denied that Jerry was not the father of R.O. She asserted that Jerry
       was indicated as the father on R.O.’s birth certificate and that Jerry had taken no steps to
       disavow his parentage. Starr sought sole custody of the children as well as support and
       expenses. In multiple responses to Starr’s petitions, Jerry repeatedly averred that only one
       child had been born to the parties.
¶5         Jerry and R.O. participated in DNA testing, which established that Jerry was not the
       biological father. Jerry subsequently filed a “Motion Regarding Finding No Paternity.” In the
       motion, Jerry asked the court to find that he was not the biological father of R.O. and that he
       owed no duty of support for the child. The motion proceeded to a hearing.
¶6         At the hearing, Jerry was represented by counsel while Starr proceeded pro se. Starr told
       the court that both she and Jerry knew immediately that R.O. was not Jerry’s biological child:
       “He knew from the day of conception that it would not be his. We talked about it. We
       worked things out. We stayed together. He was there in the delivery room. He named her.”
       Jerry did not testify and presented no evidence other than referencing the results of the DNA
       test. Starr did not object to the results of the DNA test. The court found that Jerry was not the
       father of R.O., but reserved the issue of child support.
¶7         The matter went to trial on March 14, 2013. Once again, Jerry was represented by
       counsel while Starr appeared pro se. Starr reiterated her position regarding Jerry’s knowledge
       of relevant facts:

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                “He was aware at conception that it might not be his child. We decided to work things
                out. I offered to have an abortion if I thought that he wasn’t going to love the child.
                He offered to have me keep it because he knew how I felt about abortion. He is the
                only father she’s ever known. It’s from day one he knew.”
¶8         Jerry testified that he and Starr were married on November 22, 1995. He acknowledged
       that they were married when Starr gave birth to R.O. in 2004. He testified that R.O. was not
       his biological child and that he never adopted the child.
¶9         Jerry testified that he was aware of Starr’s infidelity when he found out she was pregnant.
       He agreed that he and Starr had discussed the possibility that the child might not be his. He
       testified that at that time he thought the child “could have possibly been” his. Jerry indicated
       that when R.O. was born with the genetic disease phenylketonuria (PKU), he and Starr
       discussed that the child was not his.
¶ 10       Starr testified that Jerry knew R.O. was not his child after R.O. was diagnosed with PKU.
       She did not realize that they needed to have R.O. adopted, admitting they would have done
       so had they known.
¶ 11       The court ruled that the presumption of paternity had been rebutted, Jerry was not the
       father of R.O., and he “owe[d] no duty or responsibility pursuant to the law to pay support or
       maintain the minor child [R.O.]” This ruling was incorporated into the court’s judgment for
       dissolution of marriage dated April 18, 2013. The judgment ordered that Jerry did not owe
       any duty of support for R.O.
¶ 12       Starr, now represented by counsel, filed a motion to reconsider. In the motion, Starr
       argued that the relevant statute of limitations precluded a finding that Jerry was not the father
       of R.O. She contended that Jerry knew R.O. was not his biological child when R.O. was
       diagnosed with PKU at birth. The motion emphasized that Starr had been proceeding pro se.
¶ 13       In response, Jerry pointed out that Starr “did not present any relevant law” at the trial, and
       he contended that the statute of limitations issue had been waived because Starr had not
       raised it in pleadings. Jerry also noted that Starr was advised of her right to seek counsel and
       given ample time to procure counsel. Jerry further asserted “there was no evidence presented
       that [Jerry] knew more than 8 years ago that [R.O.] was not his. There was no evidence at all
       presented as to when the PKU was diagnosed or the nature of the disorder.” He admitted that
       he contributed to the support of the household during the course of the marriage.
¶ 14       The court denied the motion, stating only the following:
                    “I’ve thoroughly read the motion to reconsider. I’ve reviewed the cases that
                you’ve cited in your motion to reconsider. I’ve read the response and the reply.
                    I’m going to deny the motion to reconsider. I do not believe under the
                circumstances that your argument applies. So the motion to reconsider is denied.”
       Starr appeals, renewing the statute of limitations argument made in her motion to reconsider.

¶ 15                                            ANALYSIS
¶ 16                                             I. Waiver
¶ 17       Starr raised the statute of limitations issue for the first time in a motion to reconsider. A
       statute of limitations is an affirmative defense. In re Parentage of Janssen, 292 Ill. App. 3d
       219, 228 (1997). This defense may be waived if not raised in the trial court. Id. A trial court
       may, however, at its discretion, address issues raised for the first time in a motion to

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       reconsider. Kopley Group V., L.P. v. Sheridan Edgewater Properties, Ltd., 376 Ill. App. 3d
       1006, 1022 (2007). A trial court should only address such an issue when there is “a
       reasonable explanation of why it was not [raised] at the time of the original hearing.”
       Delgatto v. Brandon Associates, Ltd., 131 Ill. 2d 183, 195 (1989).
¶ 18        In his response to Starr’s motion to reconsider, Jerry argued that the statute of limitations
       defense had been waived. His emphasis on the facts that Starr was advised of her right to
       counsel and that she had ample time to procure counsel and to conduct research may be read
       as implicit arguments that there was no “reasonable explanation” why the statute of
       limitations issue had not been raised earlier. Nevertheless, the trial court ruled on the merits
       of Starr’s motion. The court opined that Starr’s argument was inapplicable, rather than ruling
       that the issue had been waived. The trial court having addressed the newly raised issue, we
       must assume the court found there to be a reasonable explanation for why the issue was not
       raised earlier. See O’Casek v. Children’s Home & Aid Society of Illinois, 374 Ill. App. 3d
       507, 513 (2007) (rejecting argument that court had dismissed motion to reconsider pursuant
       to Delgatto where record gave no indication that court’s denial of the motion was based on
       untimeliness).
¶ 19        Importantly, Jerry does not challenge the trial court’s decision to address the statute of
       limitations issue raised in Starr’s motion to reconsider. Nor does he renew his argument here
       that Starr waived the issue by not including it in her pleadings. These arguments are therefore
       forfeited. People v. De La Paz, 204 Ill. 2d 426, 432 (2003) (“ ‘[T]he general rule is that
       where a question is not raised or reserved in the trial court, or where, though raised in the
       lower court, it is not urged or argued on appeal, it will not be considered and will be deemed
       to have been waived.’ ” (quoting People v. Burson, 11 Ill. 2d 360, 370 (1957))). That is, we
       find the waiver argument forfeited. We will, therefore, proceed to the merits of Starr’s statute
       of limitations argument.

¶ 20                                     II. Statute of Limitations
¶ 21       On appeal, Starr argues that the statute of limitations found in the Illinois Parentage Act
       of 1984 (Parentage Act) (750 ILCS 45/1 et seq. (West 2004)) barred Jerry from bringing his
       motion regarding a finding of no paternity. She argues the trial court erred as a matter of law
       by declaring the nonexistence of the parent-child relationship. Whether a statute of
       limitations acts to bar a cause of action is a question of law we review de novo. In re D.D.,
       196 Ill. 2d 405, 418 (2001).
¶ 22       Section 5 of the Parentage Act provides that “[a] man is presumed to be the natural father
       of a child if *** he and the child’s natural mother are or have been married to each other ***
       and the child is born or conceived during such marriage.” 750 ILCS 45/5(a)(1) (West 2004).
       The Parentage Act also provides that such a presumption under subsection (a)(1) may be
       rebutted by clear and convincing evidence. 750 ILCS 45/5(b) (West 2004).
¶ 23       Section 7(b) provides that “[a]n action to declare the non-existence of the parent and
       child relationship may be brought by the child, the natural mother, or a man presumed to be
       the father under subdivision (a)(1) or (a)(2) of Section 5 of this Act.” 750 ILCS 45/7(b)
       (West 2004). This cause of action, however, is limited by section 8 of the Parentage Act,
       entitled “Statute of limitations.” 750 ILCS 45/8 (West 2004). Specifically, subsection (a)(3)
       provides: “An action to declare the non-existence of the parent and child relationship brought


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       under subsection (b) of Section 7 of this Act shall be barred if brought later than 2 years after
       the petitioner obtains knowledge of relevant facts.” 750 ILCS 45/8(a)(3) (West 2004).
¶ 24       When a statute of limitations is raised as an affirmative defense, the burden of proof is
       placed upon the party seeking to prevent the operation of the statute to show that he falls
       within the “discovery” exception of the statute. Blair v. Blondis, 160 Ill. App. 3d 184, 188
       (1987). The same has been held true in the context of parentage cases. People ex rel. Adams
       v. Mitchell, 89 Ill. App. 3d 1023, 1026 (1980) (“It is the party seeking to avoid application or
       operation of the limitation period who has the burden of proving the facts which will
       establish his contention.”).
¶ 25       When Starr asserted that Jerry’s motion–brought eight years after the birth of R.O.–was
       barred by the statute of limitations, the burden fell to Jerry that he had only “obtain[ed]
       knowledge of relevant facts” within two years of bringing the motion. He did not meet this
       burden. Though he argues that the evidence presented by Starr was insufficient, this
       argument improperly places the burden on Starr. Jerry did not attach an affidavit to his
       response to Starr’s motion to reconsider and did not request a hearing on the matter. Nor did
       he otherwise present any evidence over the course of the prior proceedings that would
       indicate he only recently discovered he was not R.O.’s biological father.
¶ 26       While Jerry did present the results of DNA testing, “[t]he ‘actual knowledge of relevant
       facts’ that triggers the two-year limitations period is not limited to the receipt of DNA test
       results.” In re Parentage of H.L.B., 2012 IL App (4th) 120437, ¶ 32 (quoting 750 ILCS
       45/8(a)(4) (West 2010)). Knowledge of relevant facts triggering the statute of limitations can
       be inferred where it has been demonstrated that a man has serious doubts as to whether he is
       the child’s parent. Id. ¶ 34. Here Jerry admitted that there were doubts as to the parentage of
       R.O. and that those doubts became more concrete following the diagnosis of PKU. While
       Jerry was burdened with proving that he did not have knowledge of relevant facts concerning
       R.O.’s parentage, his testimony actually helped to prove that he did have knowledge of such
       facts.
¶ 27       Jerry also contends that the statute of limitations under the Parentage Act did not begin to
       run until he filed his original motion for dissolution. In support of this argument, Jerry points
       to section 8(b) of the Parentage Act:
                    “(b) The time during which any party is not subject to service of process or is
               otherwise not subject to the jurisdiction of the courts of this State shall toll the
               aforementioned periods.” 750 ILCS 45/8(b) (West 2004).
       The statute of limitations in this matter, Jerry argues, did not begin to run until he filed his
       petition for dissolution, because “[a] petition must be filed by a litigant framing a justiciable
       matter in order for the trial court to invoke jurisdiction” (citing In re Parentage of G.E.M.,
       382 Ill. App. 3d 1102, 1121 (2008)).
¶ 28       Jerry’s argument misconstrues the word “jurisdiction” and is without merit. In the
       passage quoted by Jerry, this court was referring to the types of matters over which the
       appellate court may assert jurisdiction; an issue must be “ ‘definite and concrete, as opposed
       to hypothetical or moot, touching upon the legal relations of parties having adverse legal
       interests.’ ” Id. (quoting Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d
       325, 335 (2002)). The jurisdictional provision in the Parentage Act’s statute of limitations
       plainly refers to the powers of the courts of Illinois to assert personal jurisdiction over an
       individual. See, e.g., Sakellariadis v. Spanos, 163 Ill. App. 3d 1084, 1090 (1987) (rejecting

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       defendant’s argument, that section 8(b) of Parentage Act tolled statute of limitations, on
       grounds that defendant was subject to personal service inside or outside of the state of
       Illinois). Jerry has never asserted that he resides outside of the state or is otherwise not
       subject to jurisdiction of the courts of this state. See 735 ILCS 5/2-209 (West 2004)
       (enumerating actions that would submit an individual to the jurisdiction of the courts of this
       state).
¶ 29        We feel compelled to point out that the statute of limitations of the Parentage Act is
       intended to control in situations precisely like the one before us. The Fourth District has
       explained the policy underlying the statute of limitations in the Parentage Act:
                “To paraphrase Justice Holmes, a child, ‘like a tree in the cleft of a rock, gradually
                shapes his roots to his surroundings, and when the roots have grown to a certain size,
                cannot be displaced without cutting at his life.’ (M. Lerner, The Mind and Faith of
                Justice Holmes 417 (1953); [citation]. It is wrong to make a child a part of a family
                unit and pass over substantial concerns regarding the child’s paternity only to raise
                them years later in an attempt to avoid child support.” In re Marriage of O’Brien, 247
                Ill. App. 3d 745, 750 (1993).
¶ 30        Finally, we note that Jerry has at all times been represented by counsel. Though Starr’s
       interests were aligned with those of R.O., Starr proceeded pro se, leaving no one to advocate
       for the child. Under Illinois law, a guardian ad litem may be appointed in any proceedings
       involving, inter alia, support or parentage. 750 ILCS 5/506(a)(2) (West 2012). Indeed, when
       a court finds that a child’s interests are not properly represented, it has a duty to appoint a
       guardian ad litem. In re Parentage of Griesmeyer, 302 Ill. App. 3d 905, 913 (1998). It is
       clear that R.O.’s interests were not adequately represented below. On these facts, we hold
       that the trial court had a duty to appoint a guardian ad litem to represent the interests of R.O.
       The trial court erred by not doing so. However, the record is clear that Jerry’s motion to
       declare nonpaternity was time-barred. The order of nonpaternity as to R.O. is reversed. The
       matter is remanded for setting of child support.

¶ 31                                        CONCLUSION
¶ 32       For the foregoing reasons, the judgment of the circuit court of Will County is reversed in
       part and remanded for further proceedings.

¶ 33      Reversed in part; cause remanded.




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