IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT
TAZEWELL COUNTY, ILLINOIS
PLAINTIFF, )
)
Plaintiff, )
)
VS ) Case No. XX F XXXX
)
)
DEFENDANT, )
)
Defendant. )
DEFENDANT’S RESPONSE AND MOTION TO DISMISS PLAINTIFF’S RULE TO
SHOW CAUSE
NOW COMES Defendant, by and through his attorney, Jason A. McDaniel of
Smith and Weer, P.C., and he hereby enters his Answer to Plaintiff‟s Rule to Show
cause, moves this Court to dismiss said Rule to Show Cause pursuant to Defendant‟s
December 2004 Petition to Set Aside Orders and pursuant to 735 ILCS 5/2-1401, and
states as follows:
INTRODUCTION
Plaintiff‟s June 15, 2007 Petition for Rule to Show Cause is factually correct, but
contains omissions of fact including any reference to the October 28, 2002 Order finding
by clear and convincing evidence that Defendant was not the father of the minor child.
For that reason and the reasons set forth below, Defendant denies the allegations and
relief sought in Plaintiff‟s Rule to Show Cause, requests that the Court rule on
Defendant‟s December 2004 Petition To Set Aside Judge Fredericksen‟s Order, and
dismiss Plaintiff‟s Rule to Show Cause.
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HISTORY OF THE CASE
On March 3, 2002, pursuant to the Illinois Parentage Act of 1984, 750 ILCS 45/1
et seq., Plaintiff certified under penalty of perjury that Defendant was the father of her
child, Sierra Kerney, who was born on December 29, 2001 in Peoria, Illinois. 1 D‟s Ex. A.
The parties were not married at the time and no acknowledgement of paternity has ever
been signed by Defendant. Plaintiff requested that Defendant provide child support,
maintain health insurance, pay half of the medical, dental, orthodontic, hospital,
optometric, pharmaceutical, and day care expenses of the child.
Eventually on July 2, 2002, Defendant‟s brother was served with a summons at
ADDRESS with the above-mentioned petition. At that time, Defendant‟s mother,
Jeannie Novak (now Jeannie Krieg), lived at the residence. See Jeannie Krieg‟s
Affidavit. Thereafter, Defendant learned of the hearing and appeared pro se on August
30, 2002. According to Judge Maher‟s Order, Defendant‟s rights were explained, he
requested blood tests, he was ordered to pay and arrange said tests with the ultimate
responsibility of the cost of blood tests to be decided after testing. The case was
continued until October 28, 2002.
At the October 28, 2002 hearing according to Judge Maher‟s Order, Defendant
advised the Court he did not seek paternity testing. After a hearing held pursuant to
750 ILCS 45/13.1 to determine temporary child support, Judge Maher found that
Plaintiff failed to prove Defendant was the father of the child for Section 13.1 purposes.
Defendant was ordered to file a Financial Affidavit within 14 days, relative to payment of
1
Five years later on April 26, 2007, the Illinois Department of Healthcare and Family Services filed a
Petition to Determine the Existence of the Father and Child Relationship on behalf of Plaintiff and against
Marty Terrell. Tazewell Case No. 07-F-104. P‟s Petition. Inter alia, Plaintiff certifies now that Mr. Terrell
is the father of Sierra Kerney and that he is obligated to pay support for the child. Id.
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DNA testing. Plaintiff‟s counsel was ordered to determine whether IDPA was going to
intervene and whether IDPA will pay for the DNA testing.
On November 8, 2002, Defendant filed a financial affidavit and he certified that
he was unemployed and owed $8,877.00 in medical bills.
Nearly one year later, for whatever reason, Plaintiff filed a Motion for Immediate
Payment of DNA Testing relying on the August 30, 2002 order to arrange for blood
testing by Defendant. Plaintiff disregarded the October 28, 2002 regarding the file
Financial Affidavit of Defendant, as well as the fact that the Court found by clear and
convincing evidence that Defendant was not the father of the child. Furthermore,
Plaintiff claimed that Defendant was earning “substantial wages” of $5.85/hr for thirty
hours a week at Hardee‟s. Plaintiff has never submitted a financial affidavit, never
claimed that she was not working, and never specifically claimed that she could not
afford a DNA test despite having a year to save for it. Aside from a medical card, there
was no indication that Plaintiff was receiving other assistance from the state, which
lends credence to the fact that she was employed at that time.
A proof of service was filed on October 22, 2003 claiming that the Motion for
Immediate Payment of DNA Testing was mailed to Defendant at ADDRESS. A Notice
of a December 8, 2003 Hearing was mailed to Defendant at ADDRESS on October 22,
2003 with a proof of service at that same address. D‟s Ex. B. For some reason, another
proof of service was filed on October 29, 2003 revealing that only the Motion for
Immediate Payment of DNA Testing (and, for whatever reason, not a Notice of
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Hearing) was mailed to Defendant at ADDRESS 2.2 D‟s Ex. C. According to
Defendant, his father, sister, and mother lived at ADDRESS, but Defendant never lived
at that address. See Attached Affidavits. At that time, Defendant was living with his
father at ADDRESS 2, and then in early 2003 he moved to ADDRESS 3. Id.
Since Defendant was never provided notice of the hearing on Plaintiff‟s Motion
for Immediate Payment of DNA Testing, he did not appear at the December 8, 2003
hearing. He was unaware of Judge Fredericksen‟s Order that he was to submit to DNA
testing within 30 days pursuant to 750 ILCS 45/11(a) or have paternity resolved against
him.3 Judge Fredericksen only referenced the August 30, 2002 Order of Judge Maher
ordering a DNA test. However, the Judge did not mention the October 28, 2002 Order
whereby Defendant submitted a financial affidavit showing his inability to pay for DNA
testing. None of these mailings were sent certified and there was no indication
Defendant had any knowledge of said hearings.
Again Notice of a January 12, 2004 hearing was sent to ADDRESS, which was
not Defendant‟s residence and it was not sent to the his address. Judge Fredericksen
held that Defendant was served by regular mail at his “address of record.” As a result,
Defendant was defaulted as the father of the child pursuant to 750 ILCS 45/11 et seq.
effectively disregarding Judge Maher‟s Order. It was also ordered that Defendant be
served with a copy of the Order at his address of record and that Plaintiff file a
2
This mailing and subsequent service of Defendant‟s default clearly shows that Plaintiff was aware that
Defendant‟s address was, or may have been, ADDRESS 2, and not ADDRESS, but Notice of Hearing
was never sent to the Hamilton address.
3
As soon as practicable, the court or Administrative Hearing Officer in an Expedited Child Support
System may, and upon request of a party shall, order or direct the mother, child and alleged father to
submit to deoxyribonucleic acid (DNA) tests to determine inherited characteristics. If any party refuses to
submit to the tests, the court may resolve the question of paternity against that party or enforce its order if
the rights of others and the interests of justice so require. 750 ILCS 45/11(a).
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certificate of mailing. A hearing at a later date regarding Plaintiff‟s relief of child support
was to be had after Defendant received “proper notice.”
A certificate of mailing was filed, which again asserted that Defendant‟s address
was ADDRESS. Defendant did not receive notice of the January 12, 2004 Order or the
subsequent March 22, 2004 hearing until around February 9, 2004 when he was served
by Ronald Sestedt at ADDRESS 2. An Affidavit of Service was filed by on February 9,
2004 as well. Notably, the process server, Ronald Sestedt was, and still is, the
boyfriend of Janice Seelye, the mother of Plaintiff.
At any rate, Defendant appeared pro se at the March 22, 2004 hearing and
Judge Fredericksen ordered child support of $29.00 based on a former job Defendant
had earning $145/week. Also, Judge Fredericksen ordered arrears of 103 weeks at
$2,987 to be paid to S.D.U. and Defendant was to be responsible for half of the medical,
dental, optical, and day care expenses. Defendant‟s new address at that time was
ADDRESS 3.
On December 28, 2004, Defendant retained counsel and a Petition to Set Aside
Orders pursuant to 735 ILCS 5/2-1401 was filed alleging that the service of Defendant
for the January 12, 2004 hearing was improper, that Defendant never resided at the 805
State Street address, that Plaintiff‟s motion to appoint a private process server was
fraudulent since the process server was an interested party, that said service should be
quashed, that the January 12, 2004 Order and all subsequent Orders be set aside, and
that Defendant be awarded attorney‟s fees. No ruling has been made setting aside
these orders.
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On May 23, 2005 by Agreed Order signed by Judge Lucas, the case was
reopened, the parties were to cooperate to have DNA testing completed, Defendant
was to pay for said testing, which was to be completed in 30 days, and the case was set
for July 25, 2005. Subsequently, DNA testing occurred on June 24, 2005 and a June
29, 2005 report revealed a 0% probability that Defendant was the father of the child.
After a continuance, an Agreed Order was entered on August 22, 2005 and signed by
Judge Lucas holding Defendant not to be the father of the child and “parties may set a
hearing on other matters, including financial and cost of testing.”
ARGUMENT
A. Due to improper service at an address that was not Defendant’s,
Defendant was not provided notice of the December 8, 2003 and January 12, 2004
hearings in which he was defaulted as the father, and, as a result, orders arising
out of such hearings are null and void and should be quashed.
Pursuant to Illinois Supreme Court Rule 11(b)(3) papers shall be served “by
depositing them in a United States post office or post-office box, enclosed in an
envelope, plainly addressed to the party at his business address or residence, with
postage fully prepaid. Ill. Sup. Ct. Rule 11(b)(3) (emphasis added). Failure to serve
summons on presumed father renders adjudication of parentage null and void. Lewis v.
Newsome, 173 Ill. App. 3d 376, 382 (4th Dist. 1988), superseded by statute as stated in
Timmons ex rel. R.L.S. v. L.S. (In re R.L.S.), 218 Ill. 2d 428 (2006). Void orders may be
attacked at any time or in any court, either directly or collaterally. R.W. Sawant & Co. v.
Allied Programs Corp., 111 Ill. 2d 304, 309 (1986); In re J.E., 228 Ill. App. 3d 315, 317
(2d Dist. 1992). In Andonoplas v. Jaremko, the trial court lacked jurisdiction to vacate a
dismissal for want of prosecution and its resulting order was void, where the record
showed that the only attempt by plaintiff to give notice was by regular mail, with a proof
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of service affidavit of the person who placed it for mailing. Andonoplas v. Jaremko, 9 Ill.
App. 3d 298, 300 (1st Dist. 1972). Where respondent had no notice of the entry of the
default judgment and this effectively deprived him of his day in court and of his
opportunity to assert his defense, the default judgment was set aside to afford the
respondent a day in court. Czekaj v. Czekaj, 66 Ill. App. 3d 484, 488 (1st Dist. 1978).
In this case, the original summons was served upon Defendant‟s brother on July
2, 2002 at ADDRESS. That was the address of Defendant‟s mother according to her
affidavit. Defendant has never lived there. Defendant learned of the August 30, 2002
hearing and appeared. At that hearing, he learned of the October 28, 2002 hearing and
appeared. He was ordered to file a financial affidavit, which he did and no further
hearings were set. Furthermore, Judge Maher found that he was not the father of the
child by clear and convincing evidence with regard to 750 ILCS 45/13.1. Defendant‟s
financial affidavit revealed that he could not afford to pay for a DNA test. For all intense
and purposes, the case was over for Defendant at that point since he could not afford
the DNA test and since Judge Maher after taking testimony from Plaintiff determined
that Defendant was not the father.
Despite the October 28, 2002 Order and the Financial Affidavit, Plaintiff filed her
Motion for Immediate Payment of DNA Testing on October 22, 2003 and set it for
hearing on December 8, 2003. However, Defendant never received notice of these
hearings. Plaintiff mailed the Motion with a notice of hearing to ADDRESS, which was
not Defendant‟s residence. The affidavits of the witnesses reveal that Defendant never
lived at that address. In fact, the affidavits clearly show that Defendant was living at the
Hamilton address during this time. Furthermore, it is reasonable to assume that Plaintiff
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knew State Street was not Defendant‟s residence since on October 29, 2003 Plaintiff
also mailed the Motion without a Notice of Hearing to ADDRESS 2. As a result,
Defendant missed the next two hearings and was defaulted. On February 4, 2004,
Defendant was served at the Hamilton address by special process server with notice of
the March 22, 2004 hearing. It is obvious that the Illinois Supreme Court Rules were
not followed because Defendant was not served at “his address.” As such, Defendant
never received proper service, the orders arising out of such service are null and void
and should be quashed, and Defendant‟s December 2004 Petition to Set Aside these
Orders should be granted.
B. Judge Fredericksen’s Order that Defendant was the father of the
minor child as a result of Defendant’s failure to appear was contrary to Judge
Maher’s October 28, 2002, the determination of paternity did not serve the child’s
interest nor did the March 22, 2004 Order for support, and the ruling is against the
interest of justice.
According to Section 11(a):
"The court…may, and upon request of a party shall, order or direct the mother,
child and alleged father to submit to deoxyribonucleic acid (DNA) tests to
determine inherited characteristics. If any party refuses to submit to the tests,
the court may resolve the question of paternity against that party or enforce its
order if the rights of others and the interests of justice so require." 750 ILCS
45/11(a) (West 2000) (emphasis added).
Interpreting this statute, the Appellate Court in People v. Ras M. (In re Devon M.),
stated that “the statute authorizes a finding of paternity as a sanction against an alleged
father, but it limits that authority to cases in which „the rights of others and the interests
of justice require‟ such a finding. The trial court relied on this section as authority for the
paternity judgments here, but in no case did the court explain what rights of others or
interests of justice required the judgment.” People v. Ras M. (In re Devon M.), 344 Ill.
App. 3d 503, 509 (1st Dist. 2003). The Court ruled that the Trial Court‟s default
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determinations of paternity against three fathers served none of the minors' interests
and reversed the findings. Id. The Court stated that the minors had no ties to their
alleged fathers, the family situations do not involve these alleged fathers, and there was
no indication that the alleged fathers had any ability to support the minors or any
inclination to establish paternal relationships with the minors. Id. at 511. Furthermore,
one of the father‟s affidavits revealed no employment, no income, and no assets. Id.
After the birth of one of the children, there was a compelling medical need for a blood
transfusion, but such grounds demanded an accurate determination of biological
paternity established by appropriate tests, not a default finding made without such
scientific evidence. Id. at 512. According to the Court, the continuing uncertainty of
having such a man labeled as a father by the court without appropriate testing can have
a decidedly detrimental effect on the child. Id.
One of the guiding principles in the administration of relief under 735 ILCS 5/2-
1401 is that the petition invokes the equitable powers of the court, which should prevent
enforcement of a judgment when it would be unfair, unjust, or inequitable. Pronto Two v.
Tishman Speyer Monroe Venture, 274 Ill. App. 3d 624, 627 (1st Dist. 1995).
As stated supra, for purposes of child support, Defendant was found not to be the
father of the child by Judge Maher on October 28, 2002. Also, there is no evidence that
Defendant “refused” to submit to DNA testing since he was never given notice of such
an order. When presented with notice of hearings, Defendant diligently attended and
complied with the Court. DNA testing never occurred because the financial burden was
too great on Defendant as evidenced by the Financial Affidavit he filed. A year later,
Judge Fredericksen ignored Judge Maher‟s Order and found Defendant to be the father
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when he did not show up for court. In essence, when Defendant was found to be
unable to pay for the DNA testing, the burden fell to Plaintiff since she was seeking child
support and arrears for herself. Otherwise, if Judge Maher had intended Defendant to
pay regardless, she would not have ordered Defendant to file a Financial Affidavit.
Judge Fredericksen, for whatever reason, shifted that burden back to Defendant a year
later without requiring either party to file financial affidavits. As such, Judge Maher‟s
October 28, 2002 order superceded Judge Fredericksen‟s order since it was already
determined for child support purposes that Defendant was not the father.
Like the fathers in In re Devon M., Defendant had no ties to the child, the family
situation did not involve Defendant, and there was no indication that Defendant had any
ability to support the child or any inclination to establish a paternal relationship with the
child. His financial affidavit clearly showed Defendant had no income and a lot of debt.
Thus, a default determination by Judge Fredericksen did not serve the child‟s interest
whatsoever. The only thing it did serve was the financial interest of Plaintiff. Since the
October 28, 2002 Order showed that Plaintiff failed to prove Defendant to be the father
by clear and convincing evidence, and since Judge Fredericksen‟s order was not in the
interest of the minor child, the December 8, 2003 and January 12, 2004 cannot stand.
Judge Maher‟s Order superceded those Orders and there lies no issue as to any child
support or arrearage.
In addition, it is clear by Plaintiff‟s latest accusation of paternity against Marty
Terrell, that at least one other candidate existed as the father of the child. Failing to
apprise Judge Fredericksen of Mr. Terrell‟s existence coupled with the lack of proper
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notice to Defendant should prevent the enforcement of the judgment against Defendant
as it is unfair, unjust, inequitable, and a deceptive.
CONCLUSION
It is very noteworthy that after five and a half years after the birth of her daughter,
and after years of legal wrangling with Defendant, which included a 2005 DNA test that
conclusively proved Mr. Watson was not the father, Plaintiff now claims to know the
identity of the father. It is obvious that Plaintiff was well aware of the existence of Mr.
Terrell when her petition was first filed in 2002 against Defendant. Yet, she deceived
the Court for years swearing and affirming that Defendant, and no one else, was the
father. Plaintiff was never served with notice of the hearings where he was found to be
in default, which voids Judge Fredericksen‟s Orders. Prior to those orders, Judge Maher
found Defendant to not be the father for child support purposes and nothing happened
with the case for a year. Defendant even filed a financial affidavit as required showing
that he could not afford a DNA test. All the while, Plaintiff was well aware that another
man could have been the father. Like the fathers in In re Devon M., Defendant was
never a part of the child‟s life and he had no money to support the child. As such,
ordering default paternity was not in the interest of the child. Therefore, pursuant to
Defendant‟s December 2004 Petition based upon 735 ILCS 5/2-1401, the December
2003, January 2004, and March 2004 Orders cannot stand and no child support or
arrearage is due.
Even if it is determined Defendant is responsible for the claimed arrearage, no
child support should be calculated past December 28, 2004 since Defendant filed his
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motion challenging the March 22, 2004 order at that time and he was subsequently
found not to be the father.
WHEREFORE, Defendant respectfully moves this Court to dismiss Plaintiff‟s
Rule to Show Cause, award Defendant the costs of this action, and award Defendant
the costs of the 2005 DNA test showing him not to be the father.
Respectfully Submitted,
By: ________________________________
JASON A. McDANIEL,
Attorney for Defendant
Smith & Weer. P.C.
410 Elizabeth Street
Pekin, IL 61554
Phone: 309-347-4300
Fax: 309-347-3574
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