McNellis v. O'connor

Citations: 266 Ill. App. 3d 1063; 640 N.E.2d 1354; 204 Ill. Dec. 5; 1994 Ill. App. LEXIS 1310Docket: No. 1-93-0736

Court: Appellate Court of Illinois; September 30, 1994; Illinois; State Appellate Court

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The case concerns the rights of a child, Margaret, born to unwed mother Eileen McNellis, regarding child support from her father, Martin O’Connor. Eileen initially filed a complaint to establish paternity on December 7, 1988, which resulted in Martin admitting parentage and agreeing to pay temporary child support of $240 per month. This arrangement was later made permanent, and Martin was also ordered to cover prenatal expenses, retroactive support, and medical insurance.

On May 19, 1992, Eileen petitioned for an increase in child support due to a significant change in circumstances, citing Martin’s increased income and greater needs for Margaret. Negotiations led to a settlement on August 31, 1992, which raised support obligations to $1,000 monthly and included educational expenses. The trial judge confirmed the settlement after questioning both parties, who expressed satisfaction.

Eileen subsequently filed another petition through a private attorney, seeking to vacate or modify the support order, impose a child support trust, and compel visitation. Martin responded with objections and a motion to strike and dismiss the petition under Illinois law. After allowing Eileen 21 days to respond, a hearing on the motion was held on February 1, 1993, resulting in the dismissal of Eileen's petition.

The petition alleges insufficient discovery of the respondent's income and assets, claiming he misrepresented his income as $25,000 per year while being a beneficiary of a trust fund and possessing substantial assets. It argues that his income has likely increased significantly since the order was made, constituting a substantial change in circumstances. The petitioner, under duress and lacking adequate information about the respondent’s finances, agreed to a child support order of $1,000 per month. The petition requests an increase in child support, the respondent's obligation to cover college expenses for Margaret, the establishment of life insurance to secure support obligations, payment of uncovered medical expenses, and attorney fees.

In response, the respondent filed a motion to strike and dismiss, citing the petition's legal insufficiency under Section 2.615 of the Illinois Code of Civil Procedure. The motion contends that the petitioner did not demonstrate due diligence in pursuing discovery, failed to indicate any new evidence justifying the modification of orders, did not specify the duress claim, lacked particularity regarding the alleged income increase, and did not substantiate the claim of misrepresentation of income. The respondent also objected to the interrogatories and document requests. The petitioner countered that the motion to strike accepted all well-pleaded facts and maintained that her allegations warranted relief. During a hearing on February 1, 1993, the judge sought clarification on the issues, focusing on whether the petition adequately stated a claim for relief.

The respondent's attorney recounted the procedural history of the case and argued that section 2.1203 of the Code of Civil Procedure pertains primarily to situations involving trials or evidence hearings, rather than negotiations between counsel. She asserted that the petitioner did not provide evidence of any income increase for the respondent during the 30 days leading up to the petition's filing. The attorney detailed a conversation with the assistant State’s Attorney about settlement, indicating an initial offer of $700 per month, while the petitioner was present at the court on August 31. The respondent was absent, and the discussions included requests for financial information which the respondent’s attorney could not fully provide. The assistant State’s Attorney noted that the current payment of $240 monthly constituted about 20% of the respondent's gross income of $25,000. Despite the petitioner proposing $1,000 per month plus educational expenses, which the respondent's attorney accepted, the petitioner’s attorney countered that the respondent's claims were more factual defenses, not relevant to the current motion. The judge was made aware that the petitioner felt inadequately informed about the respondent's income and alleged misrepresentation, suggesting that had the judge known this, the prior order would not have been entered.

The petitioner argued for discovery and a trial, claiming that the respondent either misrepresented his income or experienced an increase in income. He criticized the State’s Attorney for not adequately handling the case, admitting he had not discussed it with him nor served him with pleadings. He contended that the allegations warranted further examination in court. The judge countered that the mother had made a satisfactory agreement at the time and was benefitting from it without any claims of arrears, thus denying the motion to vacate a prior order and other motions for modification, trust imposition, and visitation. The judge stated the case exhibited hindsight rather than foresight and found no duress in the original agreement. 

The document critiques the “hybrid motion” approach used, which combines different legal sections improperly, complicating the proceedings. The reviewing court noted that the proper procedure was not followed, as the sufficiency of the complaint should have been examined first before addressing other motions. It highlighted unresolved issues, such as the potential imputation of the mother’s lack of diligence to the child and the adequacy of allegations made on information and belief without disclosed sources. The court emphasized that these questions do not imply any specific answers.

The trial judge's implicit finding that the assistant State’s Attorney acted appropriately is upheld, as he advised the petitioner about the necessity of taking the respondent’s deposition and providing tax returns. The assistant was aware of the petitioner’s prior legal representation and modifications to her award, and he could not interfere with her decision to settle. It is acknowledged that had he blocked the settlement and resulted in a lesser award after trial, it would have negatively impacted the petitioner. The court concurs with the respondent that the claim of duress was merely a conclusion and agrees with the trial judge that the allegations presented were insufficient to establish duress. However, the procedure followed was flawed; the trial judge should have first evaluated the sufficiency of the petition's allegations and allowed the petitioner to amend if necessary. Citing the principle from Morrey v. Kinetic Services, Inc., the court emphasizes the need to address issues properly. Consequently, since the motion to dismiss was improperly granted, the case is reinstated to its status before dismissal, leading to the reversal of the circuit court's judgment and remanding for further proceedings. McNAMARA and GIANNIS, JJ., concur.