Villareal v. Peebles

FOURTH DIVISION
September 24, 1998

No. 1-96-2713

SAMANTHA VILLAREAL, on behalf of ) APPEAL FROM THE
ELAMONZO VILLAREAL, a minor, ) CIRCUIT COURT OF
) COOK COUNTY
Plaintiff-Appellee, )
)
v. ) No. 94 D 651368
)
JUAN PEEBLES, ) HONORABLE DENNIS
) DOHM,
Defendant-Appellant. ) JUDGE PRESIDING.

JUSTICE McNAMARA delivered the opinion of the court:

This action was brought to establish the paternity of and
support for plaintiff's minor child. After a bench trial, the
court entered an order finding defendant to be the natural father
of the minor. The trial court also entered orders of support and
withholding. Defendant appeals. We affirm. The relevant facts
are as follows.
Plaintiff filed a "Complaint to Determine the Existence of
the Father and Child Relationship" on November 29, 1994, naming
defendant as the father of her child. In it plaintiff alleged
that she and defendant engaged in sexual intercourse in August of
1986, which resulted in the birth of her child, Elamonzo
Villareal (Elamonzo) on May 11, 1987.
In accord with the trial court's April 7, 1995, order
plaintiff, defendant and Elamonzo underwent blood tests in April
1995. The blood tests, which used four DNA probes, were
administered using a restricted fragment length polymorphlisis
(RFLP) testing protocol. The test resulted in a combined
paternity index (CPI) of 2,582 to 1. A paternity index is a
probability number which represents the strength of the
prediction that a particular man is actually the father. The
paternity test report was issued on May 10, 1995, and defendant
received a copy on June 6, 1995. Defendant filed a motion on
February 1, 1996, pursuant to section 11(e) of the Illinois
Parentage Act of 1984 (the Act)(750 ILCS 45/11(e)(West 1994)),
challenging the admission of the blood testing report. The trial
court denied the motion, finding defendant's challenge to be
untimely. The test report was admitted into evidence.
Plaintiff testified that she met defendant in July 1986.
Defendant was driving a maroon Volvo and the parties exchanged
phone numbers. She testified that they first engaged in sexual
intercourse two weeks later at the home of defendant's sister.
Plaintiff further testified that in July, August, and September
1986, she engaged in sexual intercourse with defendant and with
no one else. According to plaintiff, defendant admitted
paternity to her and offered to pay $250 per month in child
support.
Angelique Villareal, plaintiff's sister, testified that she
saw the defendant driving a maroon Volvo in 1986. She also
testified that defendant had admitted paternity to her.
Laverne Livingston Williams (Livingston), defendant's
sister, testified that she owned a brown or beige Volvo in 1986,
but that she never allowed her brother to drive it. She further
asserted that she had never met plaintiff.
Defendant testified that he met plaintiff on September 19,
1986, as he was walking home from work. On one occasion they
went to his sister's house to shoot pool. Defendant testified
that he saw plaintiff a total of about five times and that he
never engaged in sexual intercourse with her. He further
testified that he never drove his sister's car.
Dr. Pravatchai Wang Boonlayangoor (Dr. Boon) testified as
defendant's expert. He opined that the DNA-RFLP testing protocol
is misleading, although the majority of experts in the field
consider it good and acceptable. He asserted that the most
reliable test would involve four to six DNA probes in addition to
the 20-system classical testing protocol including ABO, serum
protein enzymes, and HLA. He further opined that the 500 to 1
presumption found in section 11(f) of the Act (750 ILCS
45/11(f)(West 1994)) was based on classical testing protocol, not
RFLP testing protocol. In his view, with the type of testing
protocol used in this case, for a CPI to be significant it must
be greater than 10,000. Therefore, according to Dr. Boon, the
CPI of 2,582 in this case was not significant.
On February 26, 1996, the court made a finding of paternity
against the defendant. Defendant filed a timely notice of
appeal. On June 2, 1997, defendant filed a notice pursuant to
Supreme Court Rule 19 (134 Ill. 2d R. 19) with this court. On
July 10, 1997, this court granted the Attorney General's petition
to intervene pursuant to Supreme Court Rule 19 (134 Ill. 2d R.
19).
On appeal defendant contends that: (1) section 11(f) of the
Act (750 ILCS 45/11 (West 1994)) is unconstitutional; (2) the
trial court erred in entering a finding of paternity against the
defendant because defendant rebutted the presumption of paternity
found in section 11(f) of the Act (750 ILCS 45/11(f) (West
1994)); and (3) the trial court abused its discretion in not
ordering plaintiff to produce the examining physician where
defendant introduced expert scientific evidence contradicting the
significance of the blood test results.
This case involves section 11(f)(4) of the Act (750 ILCS
45/11(f)(4)(West 1994)), which provides:
"(4) If the tests show that the alleged father is
not excluded and that the combined paternity index is
at least 500 to 1, the alleged father is presumed to be
the father, and this evidence shall be admitted. This
presumption may be rebutted by clear and convincing
evidence."
Defendant first contends that this section of the Act is
unconstitutional because it declares a CPI of at least 500 to 1
to be "significant" regardless of the laboratory protocol used by
the testing facility. We find that this argument has been
waived.
Our examination of the record indicates that neither this
issue nor any similar issue was raised in the trial court.
Defendant did raise a constitutional issue regarding section
11(e) of the Act (750 ILCS 45/11(e)(West 1994)), arguing that the
28-day period in which to challenge the admissibility of a blood
test report was unconstitutional because it denied defendant his
right to confront witnesses. However, the right to confront
witnesses is a very different issue than the constitutionality of
the CPI presumption in section 11(f) of the Act (750 ILCS
45/11(f)(West 1994)). Constitutional issues not presented to the
trial court are deemed waived and may not be raised for the first
time on appeal. Saunders v. Michigan Avenue National Bank, 278
Ill. App. 3d 307, 662 N.E.2d 602 (1996); Doe v. Lutz, 253 Ill.
App. 3d 59, 625 N.E.2d 325 (1993); In re Adoption of McFadyen,
108 Ill. App. 3d 329, 438 N.E.2d 1362 (1982).
Furthermore, defendant has failed to comply with the
requirements of Supreme Court Rule 19 (134 Ill. 2d R. 19), which
requires that appropriate, timely notice be served on the
Attorney General if an issue is to be raised regarding the
constitutionality of a statute. The notice must be served "at
the time of suit, answer or counterclaim, if constitutionality is
raised at that level, or promptly after the constitutional
question arises as a result of a circuit or reviewing court
ruling or judgement." (Emphasis added.) 134 Ill. 2d R. 19(b).
Failure to comply with the provisions of Supreme Court Rule 19
(134 Ill. 2d R. 19) results in waiver of the constitutional
issue. Serafin v. Seith, 284 Ill. App. 3d 577, 672 N.E.2d 302
(1996); Witt v. Jones & Jones Law Offices, P.C., 269 Ill. App. 3d
540, 646 N.E.2d 23 (1995).
In the present case defendant did serve the appropriate
notice on the Attorney General. The question is whether defendant
did so "promptly" after the constitutional question arose. First
we must determine when the constitutional question arose in this
case. To have standing to challenge the constitutionality of a
statute, one must have sustained or be in immediate danger of
sustaining a direct injury as a result of enforcement of the
challenged statute. Messenger v. Edgar, 157 Ill. 2d 162, 623 N.E.2d 310 (1993). Standing must be defined on a case-by-case
basis. Messenger, 157 Ill. 2d at 171, 623 N.E.2d at 314.
Defendant was notified that the alleged unconstitutional statute
would be used against him when the court denied his motion to
challenge the admissibility of the blood test on February 16,
1996. At that point defendant was in immediate danger of
sustaining injury by enforcement of the statute. Application of
the section 11(f) presumption to him could result in a finding of
paternity with its incumbent financial obligations. Therefore,
as of February 16, 1996, defendant had standing to challenge the
constitutionality of section 11(f) of the Act (750 ILCS
45/11(f)(West 1994)) and the constitutional issue had arisen.
Consequently, as of February 16, 1996, defendant was
required to promptly notify the Attorney General of the
constitutional challenge because defendant had been notified as a
result of a circuit court ruling that section 11(f) of the Act
(750 ILCS 45/11(f)(West 1994)) would be used against him.
However, defendant did not serve notice on the Attorney General
until nearly 16 months later. Surely a 16-month delay does not
constitute prompt notice. See People ex rel. Ward v. 1963
Cadillac Coupe, 38 Ill. 2d 344, 231 N.E.2d 445 (1967)(delay of 3
1/2 months was "scarcely consistent" with a statute requiring the
state's attorney to "promptly" exercise discretion).
We find that defendant's constitutional argument regarding
section 11(f) of the Act (750 ILCS 45/11(f)(West 1994)) has been
waived, as defendant failed to raise it in the trial court and
failed to comply with the requirements of Supreme Court Rule 19
(134 Ill. 2d R. 19).
The statutory presumption of paternity set up in section
11(f)(4) of the Act (750 ILCS 45/11(f)(4)(West 1994)) is
rebuttable by clear and convincing evidence. People ex rel.
Stockwill v. Keller, 251 Ill. App. 3d 796, 623 N.E.2d 816 (1993);
Department of Public Aid ex rel. Galbraith v. Jones, 281 Ill.
App. 3d 115, 666 N.E.2d 12 (1996). Defendant contends that he
met this burden and rebutted this presumption by "clear and
convincing" evidence because at trial he presented uncontroverted
live expert testimony that because of the testing protocol used
in this case, a CPI of 10,000 to 1 should have been used rather
than the statutory 500 to 1. We disagree.
Dr. Boon, defendant's expert, testified that given the facts
of this case, the statutory CPI of 500 to 1 was not significant.
Rather, a CPI of 10,000 to 1 or greater would be significant in
this case. However, defendant offered no scientific support for
Dr. Boon's assertion. Defendant failed to cite a single
scientific article or a single case supporting Dr. Boon's theory
that DNA tests are only significant above 10,000 to 1. Indeed,
Dr. Boon admitted that the majority of experts in the field deem
the DNA-RFLP blood test used in this case to be good and
acceptable. It appears that defendant is a lone voice in the
woods. The trial court is free to evaluate the expert evidence
presented and accept or reject it in whole or in part. Prince v.
Herrera, 261 Ill. App. 3d 606, 633 N.E.2d 970 (1994). The trial
court need not accept the opinion of one expert, even where that
expert's testimony is not directly countered by the expert
opinion of another. In re Marriage of Petraitis, 263 Ill. App.
3d 1022, 636 N.E.2d 691 (1993). The trial court heard Dr. Boon's
testimony and decided to reject it as was its province.
Aside from Dr. Boon's testimony, the only evidence offered
by defendant to rebut the statutory presumption was defendant's
own testimony that he did not ever engage in sexual intercourse
with plaintiff and the testimony of defendant's sister that she
never met plaintiff. Unfortunately for defendant, this is not
enough. The plaintiff's testimony in a paternity case is not
cancelled merely because the defendant denies that they engaged
in sexual intercourse. People ex rel. Forrest v. Winston-Bey,
252 Ill. App. 3d 924, 625 N.E.2d 708 (1993). The defendant needs
to produce some "hard" or genetic evidence to overcome the
presumption of paternity. See Department of Public Aid ex rel.
Masinelli v. Whitworth, 273 Ill. App. 3d 156, 652 N.E.2d 458
(1995); Department of Public Aid ex rel. Galbraith v. Jones, 281
Ill. App. 3d 115, 666 N.E.2d 12 (1996).
The holding in Galbraith is instructive:
"Here, respondent did present some rebuttal
evidence generally denying paternity and indicating
that Galbraith admitted having sexual relations with
another man soon after the time of conception.
Respondent's affidavit also indicated that Galbraith told
him the father of the child was a man other than himself.
We do not deem this evidence to constitute the clear
and convincing evidence necessary to rebut the
presumption of paternity." 281 Ill. App. 3d at 120,
666 N.E.2d at 15.
Clearly, defendant's testimony that he did not engage in
sexual intercourse with plaintiff and the testimony of
defendant's sister that she had never met plaintiff did not
constitute the clear and convincing evidence necessary to rebut
the presumption of paternity. Defendant did not present
sufficient evidence to rebut the statutory presumption of
paternity.
Finally, we reject defendant's contention that the trial
court erred in not ordering plaintiff to produce the examining
physician (the physician who performed the blood test) pursuant
to Supreme Court Rule 215(d)(4)(166 Ill. 2d R. 215), where
defendant introduced expert scientific evidence contradicting the
significance of the blood tests results. Supreme Court Rule
215(d)(4)(166 Ill. 2d R. 215) provides that the court "may call"
the examining physician to testify, not that the court must or
shall call the examining physician to testify. It is within the
trial court's discretion.
In the present case the court heard the testimony of Dr.
Boon and chose to disregard it. The defendant made no challenge
to the test itself. The CPI of 2,582 to 1 was greater than the
500 to 1 statutory CPI and, therefore, the presumption of
paternity arose. The trial court did not need the testimony of
the examining physician. We cannot say that the trial court
abused its discretion.
Defendant had a number of options under section 11 of the

Act (750 ILCS 45/11(West 1994)). Defendant could have filed a
challenge to the admissibility of the blood test within 28 days
of receipt of the report thereby making expert testimony
mandatory, but he chose not to.[fn1] Defendant could have
undergone a second blood test, but he chose not to. Defendant
chose to try to rebut the blood test and statutory presumption
with expert testimony. The trial court was not persuaded by Dr.
Boon's testimony. This is a risk defendant took.
We find that the trial court did not abuse its discretion in
not ordering plaintiff to produce the examining physician and the
trial court did not err in entering a finding of paternity
against the defendant.
Accordingly, for the reasons set forth above, the judgement
of the circuit court of Cook County is affirmed.
Affirmed.
CERDA and WOLFSON, JJ., concur.
[fn1] Defendant filed a motion to challenge the
admission of the blood test report on February 1, 1996, eight
months after receipt of the blood test report.