Franson v. Micelli

Docket No. 78421--Agenda 11--November 1995.
BONNIE FRANSON, on Behalf of Elizabeth Franson, a Minor, Appellant, v.
PHILIP MICELLI, Appellee.
Opinion filed May 23, 1996.

JUSTICE HARRISON delivered the opinion of the court:
Bonnie Franson filed a complaint in the circuit court of Cook County
under the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1989, ch. 40, par.
2501 et seq.) to obtain a judicial determination that Philip Micelli was the
natural father of her child, Elizabeth, and to compel Micelli to pay child
support and provide health insurance for the child. The issue of paternity
was decided by a jury, which returned a verdict finding Micelli to be
Elizabeth's natural father. The circuit court entered judgment on that
verdict and denied Micelli's post-trial motion.
Micelli then brought an appeal pursuant to Rule 301 (155 Ill. 2d R.
301), arguing that the circuit court erred in allowing the jury to consider
DNA evidence. The appellate court agreed, holding that the DNA evidence
should not have been presented to the jury because the statistical method
employed by the testing lab to assess the relative frequency of genetic
patterns did not satisfy the Frye test (Frye v. United States, 293 F. 1013
(D.C. Cir. 1923) for determining the admissibility of novel scientific
evidence. Based on this conclusion, the appellate court reversed and remanded
for a new trial. 269 Ill. App. 3d 20. We then granted Franson's petition for
leave to appeal. 155 Ill. 2d R. 315.
The case was argued at this court's November 1995 term and taken under
advisement at that time. In preparing a disposition for the case, we
discovered that there was nothing in the record to indicate that the trial
court had ever ruled on Franson's requests for child support and health
insurance for the child. From the materials before us, it appeared that the
circuit court's rulings were limited to the question of paternity and that
these other matters were still pending. Indeed, Franson's brief specifically
requested that in reversing the appellate court's disposition, we should
reinstate the judgment of the trial court and remand "for proceedings on the
issue of support."
In Deckard v. Joiner, 44 Ill. 2d 412, 416-17 (1970), this court held
that an order establishing fatherhood in a statutory paternity action is not
final and appealable where the circuit court has reserved for future
determination the amount of child support and expenses for which the father
is liable. Based on Deckard and the record before us, we concluded that there
was no final judgment and that Micelli, the father, had no basis for invoking
the appellate court's jurisdiction.
Where, as here, the appellate court has considered the merits of a case
when it had no jurisdiction to do so, we must vacate that court's judgment
and dismiss the appeal. Almgren v. Rush-Presbyterian-St. Luke's Medical
Center, 162 Ill. 2d 205 (1994). This is so even though the jurisdictional
defect has not been raised by the parties, for as with any court of review,
we have an independent duty to ensure that appellate jurisdiction is proper.
Ferguson v. Riverside Medical Center, 111 Ill. 2d 436 (1985).
Although we could have disposed of the case summarily in accordance with
these principles, the proceedings had reached such an advanced stage that we
thought it prudent to defer action until the parties had an opportunity to
respond. We afforded them such an opportunity by issuing a rule to show cause
why the appellate court's judgment should not be vacated and the appeal
dismissed. In response, Micelli sought and was granted leave to supplement
the record to include additional orders entered by the circuit.
The additional orders, whose authenticity has not been questioned, show
that the circuit court did make a ruling on support before Micelli filed his
notice of appeal in this case. According to the supplemental record, the
circuit court required Micelli to make child support payments of $200 per
month, commencing September 22, 1993. In so doing, however, the court
expressly deferred ruling on whether Micelli should also be required to
provide medical insurance for the child or make retroactive child support
payments.
The duty to provide health insurance is an integral part of a parent's
current and future support obligations. Under Illinois law, the matters are
intertwined. See Ill. Rev. Stat. 1989, ch. 40, pars. 2514, 505.2.
Accordingly, where health insurance coverage is requested, the question of
support cannot be regarded as fully resolved until the court has ruled on the
health insurance as well.
We note, moreover, that our appellate court has held that even after a
circuit court has entered an order for support in a paternity action, there
is still no final judgment within the meaning of Rule 301 (155 Ill. 2d R.
301) if the court has reserved for future consideration issues such as
retroactive child support or reimbursement to the mother for the expenses of
pregnancy and delivery. See Department of Public Aid ex rel. Chiapelli v.
Viviano, 195 Ill. App. 3d 1033 (5th Dist. 1990); Department of Public Aid ex
rel. Corrigan v. Hawkins, 187 Ill. App. 3d 139 (2d Dist. 1989); People ex
rel. Driver v. Taylor, 152 Ill. App. 3d 413 (4th Dist. 1987). The reason is
that these issues are not merely ancillary or incidental, as would be the
case with enforcement of a support order or an increase in the amount of
support based on a subsequent change in circumstances. Rather, they are a
matter of substantial controversy between the parties, no less important than
the issue of present support obligations. To be consistent in following
Deckard, 44 Ill. 2d at 417, there is no way to distinguish them.
The first district of the appellate court has reached a contrary
conclusion where the issues reserved pertained to the mother's right to
recovery of expenses incurred during pregnancy and whether she should be
awarded attorney fees and costs. People ex rel. Johnson v. Payne, 127 Ill.
App. 3d 398, 404 (1984); Watkins v. Martin, 115 Ill. App. 3d 417, 419-20
(1983). Although these two cases purport to apply Deckard, their analysis is
dubious, at best. We need not consider them on the merits, however, for
neither attorney fees nor pregnancy expenses is involved in the dispute
before us today. Any ruling on those matters would therefore be dicta. At
this point we need say no more than that we agree with those appellate court
decisions holding that there is no final judgment in a statutory paternity
action where, as here, the circuit court has reserved a ruling on retroactive
child support.
The additional orders cited by Micelli therefore do not alter our
original conclusion that the appellate court had no jurisdiction to hear his
appeal under Supreme Court Rule 301 (155 Ill. 2d R. 301). If some alternative
basis existed for invoking the appellate court's jurisdiction, Micelli was
obliged to demonstrate it. He has not done so.
In People ex rel. Block v. Darm, 267 Ill. App. 3d 354 (3d Dist. 1994),
the third district of the appellate court did recognize one optional mode of
review in statutory paternity actions. It held that a finding of paternity
can be appealed even where issues of retroactive child support and
reimbursement of expenses remain unresolved, provided that the court makes an
express written finding under Rule 304(a) (155 Ill. 2d R. 304(a)) that there
is no just reason for delaying enforcement or appeal. Department of Public
Aid ex rel. Corrigan v. Hawkins, 187 Ill. App. 3d 139 (2d Dist. 1989),
indicates that it would have taken this position, too, had the appropriate
Rule 304(a) language been included by the trial court there. The fifth
district of the appellate court, on the other hand, has recently questioned
such an approach in light of this court's conclusion in In re Marriage of
Leopando, 96 Ill. 2d 114, 120 (1983), that the issues raised in a
dissolution-of-marriage case are not separate claims that can be appealed
under Rule 304(a). Elkins v. Huckelberry, 276 Ill. App. 3d 1073 (5th Dist.
1995). In this case, the issue is academic. As in Corrigan, the circuit court
did not make the express written finding required to support a Rule 304(a)
appeal. Accordingly, even if Darm is correct, Micelli would still have no
basis for obtaining appellate review.
For the foregoing reasons, we adhere to our conclusion that the
appellate court had no jurisdiction to decide this case. The appellate
court's judgment is therefore vacated and the appeal is dismissed.

Appellate court judgment vacated;
appeal dismissed.