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
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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
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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
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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
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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
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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).
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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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