In re Estate of Renchen

No. 3-09-0880

_________________________________________________________________
Filed November 30, 2010
IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2010

In re ESTATE OF ROBERT R. ) Appeal from the Circuit Court
RENCHEN, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois.
Deceased )
)
(Robert T. Renchen, )
)
Plaintiff-Appellee, ) No. 07--P--123
)
v. )
)
Thomas Renchen, William Renchen,)
and Thomas Renchen, as Guardian )
of Vera Renchen, ) Honorable
) Kendall O. Wenzelman,
Defendants-Appellants). ) Judge, Presiding.
_________________________________________________________________

MODIFIED UPON DENIAL OF REHEARING
AND APPLICATION FOR CERTIFICATE OF IMPORTANCE

JUSTICE SCHMIDT delivered the opinion of the court:

In this Supreme Court Rule 308 (155 Ill. 2d R. 308) appeal,

we must answer the following question certified by the trial

court: whether the finding of paternity in a decree of adoption is

dispositive of the paternity of the adopted child when no motion

to vacate was timely filed in the adoption case and when

thereafter a petition to establish alternative paternity was filed

in a collateral probate proceeding. We understand that, in a
vacuum, that question makes no sense. Generally speaking, an

adoption cuts off both the obligations and rights of a natural

father. For purposes of inheritance, an adopted child is the

child only of his adoptive parents. However, the legislature has

created a statutory exception which provides that a person adopted

by a descendent of a natural parent's grandparent may inherit from

both his adoptive and natural parent. 755 ILCS 5/2--4(d)(1) (West

2006).

Under the facts of this case, we answer the certified question

in the negative.

FACTS

Judith York gave birth to Robert Todd York (Todd) on November

21, 1968, during her marriage to Gary York. Ergo, Gary York was

Todd's presumptive natural father. Judith and Gary later

divorced. Judith (now deceased) then married William Renchen.

William is a brother to decedent Robert R. Renchen. William and

Judith legally adopted Todd. Todd York became Todd Renchen. An

adoption order identifies Gary York as Todd's natural father. The

adoption terminated Gary York's parental rights. Todd has never

challenged the adoption or any part of it. No one disputes that

William Renchen is Todd's adoptive and, therefore, legal father.

Robert Renchen, William's brother, died intestate on April

21, 2007. Todd filed pleadings in the probate court alleging that

the decedent, Robert Renchen, was, in fact, his natural father.

On June 18, 2007, Todd filed a petition for letters of

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administration claiming that decedent's heirs were:

Robert Todd Renchen, son

Vera Renchen, mother

Richard Renchen, brother

Thomas Renchen, brother

William Renchen, brother

On July 16, 2007, Thomas Renchen, another of William's

brothers, filed a petition for letters of administration stating

that the heirs of Robert R. Renchen were:

Vera Renchen, mother

Richard Renchen, brother

Thomas Renchen, brother

William Renchen, brother

Also on July 16, 2007, Thomas and William Renchen filed a

motion to strike Todd's petition for letters of administration

stating that Todd was adopted on February 8, 1973, in Kankakee

County by Judith Renchen, his natural mother, and her husband,

William Renchen.

On August 22, 2007, Thomas Renchen, William Renchen and Vera

Renchen (appellants) filed a motion for summary judgment stating

that Todd was the son of William Renchen by virtue of an adoption

in Kankakee County dated February 8, 1973. The motion further

stated that: (1) Robert Todd Renchen’s mother, Judith, was married

to a Gary York on December 11, 1965; (2) Robert Todd York was born

to Gary and Judith York on November 21, 1968; (3) Judith York then

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divorced Gary York and subsequently married William Renchen; (4)

William and Judith Renchen then filed a petition to adopt Robert

Todd York and that petition was granted on February 8, 1973; and

(5) Robert Todd York was decreed the adopted child of William and

Judith Renchen and the child’s name was changed to Robert Todd

Renchen. Attached to the motion was an affidavit of Judith

Renchen and a copy of the decree of adoption. The motion also

stated that this order of adoption was dispositive of the

paternity of Todd.

On August 1, 2007, Todd filed a motion for summary judgment

claiming that he was the natural son of decedent Robert R.

Renchen. He attached a DNA test report in support of his motion.

On January 9, 2008, Todd filed a counterpetition to determine the

existence of a parent-child relationship. We should note that

Todd makes reference to the supporting record in his brief.

However, the only record filed with this court is 10 pages which

include: Todd's two-page motion for summary judgment and which are

marked with an "exhibit 1" sticker; the petition for letters of

administration filed by Todd in the circuit court; a two-page

affidavit of Richard Renchen; a copy of the decree for adoption;

and the DNA test report.

Appellants filed a motion for involuntary dismissal of Todd’s

counterpetition. Further, they filed a motion to strike Todd’s

motion for summary judgment as to heirship.

On December 5, 2008, the court denied all motions.

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Thereafter, on motion of the appellants, the trial court certified

the above-mentioned question. On October 20, 2009, we granted

appellants' motion for leave to appeal pursuant to Supreme Court

Rule 308. 155 Ill. 2d R. 308.

ANALYSIS

Appellants request that we both answer the certified question

and reverse the trial court's denial of their motions. However,

the scope of review of an interlocutory appeal brought under

Illinois Supreme Court Rule 308 is strictly limited to the

certified question. In re Estate of Williams, 366 Ill. App. 3d

746, 748, 853 N.E.2d 79 (2006). As the question certified by the

trial court must be a question of law, the applicable standard of

review is de novo. Barbara's Sales, Inc. v. Intel Corp., 227 Ill.

2d 45, 58, 879 N.E.2d 910 (2007).

The question before us is whether the finding of paternity in

a decree of adoption is dispositive as to the adopted child when

no motion to vacate was timely filed in the adoption case and

when, thereafter, a petition to establish alternative paternity

was filed in a collateral probate proceeding. The parties agree

that the ultimate issue is heirship.

In the case at bar, Robert R. Renchen died intestate. Todd

Renchen filed a petition for letters of administration claiming

that he was the son of Robert R. Renchen. He filed various other

pleadings, all related to his claim that he is the biological son

of Robert. Evidence submitted in support of a motion for summary

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judgment included DNA test results from DDC DNA Diagnostics that

allegedly indicate a 99.995% probability that decedent is the

father of Todd Renchen.

Todd Renchen argues that he was adopted by William Renchen "a

descendant of the great-grandparent of the child." Therefore, he

may inherit from the decedent's estate. The Probate Act of 1975

(Probate Act) states:

"(d) For purposes of inheritance from

or through a natural parent and for determining

the property rights of any person under any

instrument, an adopted child is not a child of

a natural parent, *** unless one or more of the

following conditions apply:

(1) The child is adopted by a

descendent or a spouse of a descendent

of a great-grandparent of the child,

in which case the adopted child is a

child of both natural parents." 755

ILCS 5/2--4(d)(1) (West 2006).

Appellants contend that according to the adoption decree,

Todd's natural mother, Judith, was married to Gary York on

December 11, 1965. Further, Todd was born to Gary and Judith York

on November 21, 1968. Judith York then divorced Gary York and

subsequently married William Renchen, who adopted Todd on February

8, 1973. Appellants argue that an adoption decree can be

6
collaterally attacked only on the grounds that the adoption court

lacked jurisdiction. In re J.D., 317 Ill. App. 3d 419, 422, 739

N.E.2d 1036, 1039 (2000). Moreover, collateral attacks on

adoptions decrees, which disrupt consistently upheld law, and

legislative intent have not been, nor should they be, given

special treatment within a decedent's estate under the Probate

Act.

Todd, on the other hand, argues that he is not attempting to

become "un-adopted," nor is he attacking the adoption decree.

Rather, he is simply trying to establish heirship under the

Probate Act in accordance with section 2--4(d)(1). 755 ILCS 5/2--

4(d)(1) (West 2006).

Appellants next argue that Todd's counterpetition to

establish a parent-child relationship is barred by the two-year

limitations period set forth in section 8(a)(1) of the Illinois

Parentage Act of 1984 (Parentage Act) (750 ILCS 45/8(a)(1) (West

2006)). Todd disagrees and cites to Tersavich v. First National

Bank & Trust Co. of Rockford, 143 Ill. 2d 74, 79, 571 N.E.2d 733

(1991), and section 8(c) of the Parentage Act in support of his

argument that the limitations contained in the Parentage Act are

applicable to the case at bar. Section 8 of the Parentage Act

provides, in pertinent part, as follows:

"(c) This Act does not affect the time

within which any rights under the Probate Act

of 1975 may be asserted beyond the time provided

7
 by law relating to distribution and closing of

decedent's estates or to the determination of

heirship, or otherwise." 750 ILCS 45/8--4(c)

(West 2006).

In Tersevich, the plaintiff brought an action for declaratory

judgment that sought the construction of a trust. The plaintiff

alleged that she was the daughter of the decedent and was born out

of wedlock. Defendant moved for summary judgment on the basis

that the action was time-barred under section 8 of the Parentage

Act. The trial court granted defendant's motion for summary

judgment, and the appellate court reversed. The supreme court

affirmed the holding that, as the illegitimate daughter was an

heir of the testator by virtue of the Probate Act, the question of

her parentage was not at issue and, therefore, the limitations

period of the Parentage Act did not apply. Tersavich, 143 Ill. 2d

at 81. We agree that the facts before us are different from those

in Tersevich. We discuss it because a party raised it. We do not

find it controlling.

As in Tersevich, Todd is trying to establish heirship under

the Probate Act, rather than attempting to establish a parental

relationship under the Parentage Act. We do not find that Todd is

trying to "undo" the adoption decree. He alleges a right to

inherit from his natural father due to the fact that the Probate

Act allows one to inherit from both the adoptive parent and the

natural parent when the adoptive parent is "a descendent or a

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spouse of a descendent of a great-grandparent of the child." 755

ILCS 5/2--4(d)(1) (West 2008).

The propriety of the trial court's ruling on appellants'

motion to dismiss Todd's counterpetition to establish a parent-

child relationship is not properly before us. However, we find it

necessary to discuss this in order to explain our rationale for

our answer to the certified question. Prior to filing the

counterpetition, Todd had filed his petition for letters of

administration alleging a right to inherit from decedent. As set

forth above, this is because he alleges that William is a

descendant of a great-grandparent of the child pursuant to section

2--4(d) of the Probate Act. 755 ILCS 5/2--4(d) (West 2008).

Establishing a parent-child relationship under the Parentage Act

is an entirely different matter from seeking to establish heirship

under the Probate Act. This is made plain by the language of the

Probate Act, which allows a child to inherit from both his

adoptive parent and his natural parent where an adoptive parent is

a descendant of a great-grandparent of the child. 755 ILCS 5/2--

4(d) (West 2008). That statute clearly presumes that there is no

relationship between the child and his natural parent since it

involves only a child who has been adopted. Therefore, even

though we do not address the propriety of the trial court's ruling

in denying appellants' motion to dismiss the counterpetition to

establish a parent-child relationship, we find it to be irrelevant

to our answer to the certified question. This is because Todd

9
does not need to establish a parent-child relationship with

decedent as defined by the Parentage Act in order to inherit. He

only needs to prove that the decedent was his natural father.

Under the facts of this case, we find the answer to the

certified question to be "No." The facts of this case are rare

but not unique. The legislature specifically provided for the

course of action now taken by Todd. If Todd can prove that Robert

was his natural father, he may inherit from both his natural

father and adoptive parents in accordance with section 2--4(d)(1)

of the Probate Act. 755 ILCS 5/2--4(d)(1) (West 2006). Contrary

to appellants' arguments, a finding in the probate action that

Todd is the natural son of Robert would have no effect on the

adoption. William Renchen would still be Todd's legal father.

The Parentage Act states that its time limitations do not affect

the time within which any rights under the Probate Act may be

asserted relating to the determination of heirship. See 750 ILCS

45/8(c) (West 2006). Appellants and the dissent would have us

read this provision out of the Parentage Act. How else can one

establish heirship other than by establishing blood relationships

which ultimately depend upon paternity? Why else would the

legislature say that the limitations contained in the Parentage

Act do not apply when trying to establish heirship under the

Probate Act? Clearly, the legislature recognized the obvious:

heirship ultimately depends upon paternity. It then clearly

stated that the limitations contained in the Parentage Act do not

10
apply to proceedings under the Probate Act relating to the

determination of heirship.

The dissent's argument seems to be anchored on a finding by

the trial court in the adoption proceeding that Gary York is

Todd's natural father. The argument is that it is too late to

attack that finding. However, the reason Todd cannot dispute the

finding in the adoption proceeding is expiration of the statute of

limitations contained in the Parentage Act. The dissent ignores

the legislature's directive at section 8(c). 750 ILCS 45/8(c)

(West 2006). The limitations do not apply in this probate

proceeding.

The dissent implies that Todd must have proved his probate

claim before even filing it. Todd alleges a claim against the

estate of Robert Renchen. What is magical about this claim where,

unlike any other probate claim, it must be proven conclusively

before it is filed?

In conjunction with a petition for rehearing, appellants have

requested that this court issue a certificate of importance

pursuant to Supreme Court Rule 316 (155 Ill. 2d R. 316) "so that

the issue may be decided by the Supreme Court." We decline to do

so. Should appellants wish to file a petition for leave to appeal

pursuant to Supreme Court Rule 315 (236 Ill. 2d R. 315), the

supreme court can decide for itself whether it wishes to address

this issue. The application for a Supreme Court Rule 316

certificate of importance is denied.

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 CONCLUSION

For the foregoing reasons, we answer the certified question

in the negative, deny appellants' petition for rehearing and deny

appellants' application for certificate of importance.

Certified question answered. Petition for rehearing denied.

Application for certificate of importance denied.

WRIGHT, J., concurs.

JUSTICE McDADE concurring in part, dissenting in part:

I concur with the decision to deny the Application for

Certificate of Importance. However, I respectfully dissent from

the majority’s decision answering the certified question in the

negative.

Here, the certified question requires us to examine the

impact of the decree of adoption on Todd’s right to inherit from

decedent. Todd, however, argues that he “is not attacking the

decree of adoption,” contending instead that he is merely

asserting his right to inherit from his natural father, decedent,

under section 2-4(d)(1) of the Probate Act. Todd reasons as

follows. He is the natural child of decedent. William

subsequently adopted Todd. William is the brother of decedent.

Decedent and William shared the same grandparents. Decedent’s

and William’s grandparents were Todd’s great-grandparents. Thus,

Todd concludes that he is decedent’s child under the exception in

section 2-4(d)(1).

I acknowledge Todd’s alleged family history, however, his

12
argument that he “is not attacking the decree of adoption” is

quite simply wrong. I agree with the majority that Todd is not

attempting to be “un-adopted” or to challenge the fact that

William is his adopted, and, therefore, legal father. Indeed that

fact is integral to his claim of heirship. He is, however,

challenging the express factual finding made by the circuit court

in the adoption decree that Gary York is his natural father.

Todd has a right under section 2-4(d)(1) only if he can

establish that decedent is his natural father. Failure to

establish this fact results in his inability to claim he falls

within the exception articulated in section 2-4(d)(1).

Unfortunately for Todd, the decree of adoption bars him from

attempting to establish that decedent is his natural father.

Again, this is because in the decree of adoption the court

expressly found that Gary York is Todd’s natural father. Todd did

not challenge this finding until the current action, which was

filed approximately 19 years after Todd reached the age of

majority. Thus, the decree of adoption must control. 750 ILCS

45/8(a)(1) (West 2006). Section 8(a)(1) of the Illinois Parentage

Act of 1984 (Parentage Act) provides, in pertinent part:

“An action brought by or on behalf of a

child *** shall be barred if brought later

than 2 years after the child reaches the age

of majority.” 750 ILCS 45/8(a)(1) (West

2006).

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The Act further provides:

“In any civil action not brought under

this Act, the provisions of this Act shall

apply if parentage is at issue.” (Emphasis

added.) 750 ILCS 45/9(a) (West 2006).

While the majority disagrees, I believe parentage is at issue

in the case; it is the only basis for Todd’s claim of heirship.

The fact that Todd filed a counter-petition to establish paternity

confirms this point. Specifically, Todd is seeking to establish

that decedent was his natural father, not Gary York. The

provisions of the Parentage Act therefore apply (750 ILCS 45/9(a)

(West 2006)) and the two-year limitation on actions brought under

the Parentage Act has expired (750 ILCS 45/8(a)(1) (West 2006)).

Thus, I would find that Todd is barred from attempting to

establish that decedent is his natural father.

While the majority relies upon section 8(c) of the Parentage

Act, 1 in concluding that section 2-4(d)(1) of the Probate Act is

still applicable, it ignores the fact that Todd only has a right

under section 2-4(d)(1) if he can establish that decedent is his

natural father. For reasons I have already discussed, Todd is

1
Section 8(c) of the Parentage Act states: “This Act does not affect the time within which

any rights under the Probate Act *** may be asserted beyond the time provided by law relating to

distribution and closing of decedent’s estates or to the determination of heirship, or otherwise.”

(Emphasis added.) 750 ILCS 45/8(c) (W est 2006).

14
barred from even attempting to establish this fact. Thus, Todd

simply has no right to even assert under section 2-4(d)(1).

In coming to this conclusion, I reject Todd’s reliance on

section 3(c) of the Probate Act, which provides that the issue of

heirship may be litigated “by any party interested therein in any

place or court where the question may arise.” 755 ILCS 5/5-3(c)

(West 2006). An “interested person” includes “one who has *** a

financial interest [] [or] property right *** which may be

affected by the action ***, including[,] without limitation[,] an

heir.” 755 ILCS 5/1-2.11 (West 2006). Because Todd has no

interest cognizable under section 2-4(d)(1) of the Probate Act he

has no financial interest in decedent’s estate and therefore is

not an “interested person” under the Probate Act.

Finally, I believe the majority mistakenly finds support for

its position in Tersavich v. First National Bank & Trust Co. of

Rockford, 143 Ill. 2d 74, 571 N.E.2d 733 (1991). I believe it is

mistaken because of two factual differences that appear to me to

be dispositive. First, I note that the facts of Tersavich do not

involve a challenge to findings in an adoption decree. And,

second, the unrebutted affidavits in Tersavich established that

prior to his death the decedent had acknowledged that he was the

plaintiff’s father. Simply put, there was no “other” natural

father of record in Tersavich. Thus, given the facts of that

case, the Tersavich court expressly held that parentage was not at

issue. Tersavich, 143 Ill. 2d at 81, 571 N.E.2d at 736.

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 That is not our case. Here, we have an adoption decree that

expressly finds that Gary York, not decedent, is Todd’s natural

father. No alleged natural father other than Gary York has

acknowledged (or can acknowledge) paternity. Indeed the decedent

had no opportunity to acknowledge or deny paternity because the

issue did not arise until after his death. Under these

circumstances, it simply defies logic to conclude that parentage

is not at issue in this case. The Tersavich court would have

found the limitations period of the Parentage Act applicable if

parentage had been at issue. Tersavich, 143 Ill. 2d at 81, 571

N.E.2d at 736. Since parentage is clearly at issue in the instant

case, it is my position, not the majority’s, that is actually

supported by the Tersavich court’s reasoning.

For the foregoing reasons, I would answer the certified

question in the affirmative and remand the cause to the trial

court for further proceedings.

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