Franson v. Micelli ( 1996 )

                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.