Stingley v. Burtley

2022 IL App (1st) 211636-U

SECOND DIVISION
August 9, 2022

No. 1-21-1636

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

TRACY STINGLEY, ) Appeal from the Circuit Court of
) Cook County.
Petitioner-Appellee, )
)
v. )
)
MECHELE BURTLEY, )
) Nos. 18 D 679242
Respondent-Appellant, ) 18 D 2092 (cons.)
)
and )
)
MONTE RUFUS, )
) Honorable Abbey Fishman
Third-Party Respondent-Appellant. ) Romanek, Judge Presiding.

JUSTICE HOWSE delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.

ORDER

¶1 Held: We reverse the judgment of the circuit court denying appellant’s motions to
vacate a finding of paternity. Where the voluntary acknowledgment of paternity
of a child has been executed pursuant to statute and had not been vacated or
rescinded, the court did not have a justiciable issue before it when it made a
finding of a paternity in a case filed by a third party seven years after the
acknowledgment; the issue of paternity had already been resolved.
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¶2 Mechele Burtley, appellant, is the mother of M.R., a female child born on July 26, 2011.

On July 26, 2011, the same day of M.R.’s birth, Michele and her friend, Monte Rufus, appellant,

executed a voluntary acknowledgement of paternity in compliance with Illinois law to establish

Monte as the legal father of M.R. 750 ILCS 46/201(b)(2) (West 2020). Seven years later,

appellee Tracy Stingley filed a complaint to establish a parent-child relationship with M.R.,

alleging DNA tests showed he was actually the biological father of M.R. In November 2018, the

trial court entered an order finding Tracy is the father of M.R., based primarily on DNA results

showing that he was the biological father. Mechele and Monte moved the court to vacate the

finding of paternity, arguing the court lacked subject matter jurisdiction to hear Tracy’s petition.

The trial court denied the motions to vacate the finding of paternity and they both appeal. For the

following reasons, we reverse the circuit court’s order denying the motion to vacate the order

finding Tracy is the father of M.R. and remand with instructions.

¶3 BACKGROUND

¶4 Mechele Burtley gave birth to a daughter, M.R., on July 26, 2011. Monte Rufus executed

a voluntary acknowledgement of paternity (VAP) as M.R.’s father on the same day she was born,

and he is named as M.R.’s father on her birth certificate. Mechele and Monte were in a

relationship together since at least 2011. In 2014, they got married. Mechele and Monte

subsequently had two other children together.

¶5 In January 2016, Mechele reportedly informed Monte that he may not be M.R.’s

biological father. Monte contacted petitioner Tracy Stingley in January 2016 and informed Tracy

that he may be M.R.’s biological father. Monte and Tracy subsequently took over-the-counter

DNA tests which revealed that Tracy was M.R.’s biological father and Monte was not. In 2017,

M.R. began having visits with Tracy, his wife, and his five other children.

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¶6 Mechele filed a petition to dissolve her marriage to Monte in March 2018. Her petition

for dissolution of marriage states that she and Monte had three children together, specifically

naming M.R. as one of the children “born to or adopted by the parties.” The circuit court entered

a default judgment for dissolution of the marriage in May 2018 where the court made a finding

that three children, including M.R., were born to or adopted by the parties. The court

subsequently entered various orders pertaining to visitation and parental responsibilities in

contemplation of Monte as M.R.’s legal father.

¶7 In October 2018, Tracy filed a complaint to establish a parent-child relationship with

M.R. Monte was not made a party in the complaint filed by Tracy. At the first court hearing,

November 5, 2018, the parties appeared pro se and the trial court, unaware of the voluntary

acknowledgement and dissolution judgment, entered a finding that Tracy was the father of M.R.

based on the over-the-counter DNA results and the testimony of the parties. The court ordered

the parties to complete parenting plans, and it awarded Tracy visitation of M.R. every other

weekend.

¶8 Mechele subsequently filed a formal appearance in the paternity case. Tracy and Mechele

filed various motions and petitions in the paternity case regarding parental responsibilities, child

support, and visitation, among other things. In July 2019, the judge presiding over the paternity

case entered an order expressing the possibility that his judgment of paternity might be void or

voidable. The judge noted that the court had become aware after making the paternity finding

that Monte had signed a voluntary acknowledgment of paternity for M.R. and that Monte was

likewise named M.R.’s legal father in the judgment of dissolution of Mechele and Monte’s

marriage. The judge stated that Monte might be a necessary party to the paternity action and that

Tracy “is clearly the biological father but not necessarily the legal father at this point.”

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¶9 On August 22, 2019, Mechele filed a motion to join Monte as a party in the paternity case

and also filed a motion to vacate and declare void the order finding Tracy to be M.R.’s legal

father. Mechele noted that Monte had signed a VAP and that conflicting rulings had been issued

by separate judges wherein a different man was adjudicated to be M.R.’s legal father in separate

proceedings. After appearing in the case, Monte also filed a motion to vacate the finding of

paternity on the grounds that the order was void. Over the course of the next several months,

from July 2019 to May 2020, the parties exchanged motions about parental responsibilities,

parenting time, and their grievances with one another. The proceedings were also briefly delayed

due to the impact of the COVID-19 pandemic. In May 2020, the judge presiding over the

paternity case entered an order transferring the paternity case so that it could be consolidated into

the case dissolving Mechele’s and Monte’s marriage. Tracy meanwhile filed a motion to void

Monte’s voluntary acknowledgment of paternity.

¶ 10 With the cases consolidated, the court ordered the parties to undergo DNA testing. The

court-ordered DNA testing confirmed Tracy to be M.R.’s biological father. The court then turned

to the issue of Mechele and Monte’s motions to vacate the November 5, 2018 finding of

paternity issued in Tracy’s favor. The court held a hearing and heard arguments from the parties

regarding the motions to vacate the finding of paternity. Following the hearing, the court denied

the motions to vacate the finding of paternity adjudicating Tracy to be M.R.’s legal parent.

Mechele and Monte appeal arguing that the trial court erred when it adjudicated Tracy as M.R.’s

legal father and by failing to vacate the order on their motions.

¶ 11 ANALYSIS

¶ 12 Mechele and Monte argue that the trial court erred when it heard Tracy’s petition and

named him as M.R.’s legal father because the court lacked subject matter jurisdiction to hear the

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case. They argue Monte was M.R.’s acknowledged and legal father, and as a result of the

acknowledgment, under Illinois statues and case law there was no justiciable issue before the

court concerning the parentage of M.R. when the court entered its paternity order. Therefore, the

court lacked subject matter jurisdiction to enter its order. They argue that the trial court erred

when, after learning that Monte had executed a voluntary acknowledgment of paternity and was

named as M.R.’s father in the divorce decree, it refused to vacate its previously entered order

finding Tracy was M.R.’s father.

¶ 13 This court has jurisdiction to hear the appeal of the court’s order denying the motions to

vacate the November 5, 2018 order as void under Supreme Court Rule 304(b)(3) as an appeal

from the denial of relief of a section 2-1401 petition. Although the motions to vacate a void order

were not captioned as 2-1401 petitions or refer to section 2-1401, a petition seeking relief from a

void judgment is a section 2-1401 petition, regardless of whether or not it bears that title. In re

Custody of Ayala, 344 Ill. App. 3d 574, 581-82 (2003), citing Sarkissian v. Chicago Board of

Education, 201 Ill. 2d 95, 104-05 (2002). Therefore, the motions to vacate a void judgment are

treated as section 2-1401 petitions, and this court has jurisdiction to hear the denial of relief

under Supreme Court Rule 304(b)(3).

¶ 14 This case was decided without an evidentiary hearing on the purely legal issue of whether

the court had subject matter jurisdiction over Tracy‘s complaint, therefore we will review the

decision de novo. Citimortgage, Inc. v. Sharlow, 2014 IL App (3d) 130107, ¶ 14 (“The appellate

court applies a de novo standard of review in cases in which the trial court either dismissed

a section 2–1401 petition or ruled on the petition based on the pleadings alone, without an

evidentiary hearing.” (citing People v. Vincent, 226 Ill. 2d 1, 18 (2007))).

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¶ 15 In their reply brief, Mechele and Monte argue that Tracy’s response brief should be

stricken for his failure to comply with the Illinois Supreme Court Rules governing appellate

briefs. Tracy, appearing pro se in this appeal, made an earnest effort to prepare his brief.

However, the brief fails to meet many of the requirements for a valid brief on appeal. It lacks the

required certificate of compliance (Ill. S. Ct. R. 341(c) (West 2020) (eff. Oct. 1, 2020)); citations

to the record for factual statements (Ill. S. Ct. R. 341(h)(6)); citations and argument concerning

relevant authority (Ill. S. Ct. R. 341(h)(7)); and it fails to meet other formatting and technical

requirements (see, e.g., Ill. S. Ct. R. 341(a); Ill. S. Ct. R. 341(h)).

¶ 16 Tracy’s pro se status does not relieve him of the burden of complying with the Rules

governing appellate procedure. Twardowski v. Holiday Hospitality Franchising, Inc., 321 Ill.

App. 3d 509, 511 (2001). A brief on appeal that fails to comply with the Supreme Court Rules is

subject to being stricken. Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 7.

Bearing in mind that Tracy’s brief could be stricken for its failure to comply with the Rules, we

nevertheless move to the merits of the appeal because the parties’ submissions still allow us to

provide a meaningful review of the issues in this appeal. Twardowski, 321 Ill. App. 3d at 511.

¶ 17 Under the Illinois Parentage Act of 2015 (750 ILCS 46/101 et seq. (West 2020)), a

parent-child relationship between a man and a child may be established by an effective voluntary

acknowledgment of paternity. 750 ILCS 46/201(b)(2) (West 2020). A valid voluntary

acknowledgment “is equivalent to an adjudication of the parentage of a child and confers upon

the acknowledged father all of the right and duties of a parent.” 750 ILCS 46/305(a) (West

2020). In this case, no issue is raised as to the validity of the voluntary acknowledgment

executed by Monte or the fact that it was a conclusive and binding adjudication of Monte’s

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parentage rights for M.R. Monte has been M.R.’s legal father since the day of her birth because

he executed the voluntary acknowledgment of paternity that was never challenged or rescinded.

¶ 18 Section 609 of the Parentage Act provides a procedure by which a party, like Tracy, who

claims to be the father of a child may file a complaint to establish a parent-child relationship

where there is a previously entered voluntary acknowledgement of paternity. Section 609(b)

provides that when a child has an acknowledged father, a party who is not a signatory on the

acknowledgment must file a petition to establish a parent-child relationship within two years

from the date of the acknowledgement:

“Sec. 609. Limitation; child having acknowledged or adjudicated parent.

a) If a child has an acknowledged parent, a signatory to the acknowledgment

described in Section 301 of this Act or related denial may commence a

proceeding seeking to challenge the acknowledgment or denial or challenge the

paternity of the child only within the time allowed under Section 309 of this Act.

b) If a child has an acknowledged parent or an adjudicated parent, an individual,

other than the child, who is neither a signatory to the acknowledgment nor a party

to the adjudication and who seeks an adjudication of parentage of the child must

commence a proceeding not later than 2 years after the effective date of the

acknowledgment or adjudication.” 750 ILCS 46/609 (West 2020)

¶ 19 In this case, the acknowledgment of paternity was signed on July 26, 2011. Tracy did not

file his complaint to establish paternity until October 1, 2018—well beyond the two-year

limitation period permitted under law for such a challenge. The appellants further alleged Tracy,

when he filed his initial complaint, deceived the court by denying there was a voluntary

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acknowledgement of paternity for M.R. and he affirmatively denied there was a judgment

entered in the dissolution of marriage case which made a finding Monte was the father of M.R.

¶ 20 Michelle and Monte argue that because Tracy’s complaint was filed beyond the two-year

limitation period following the signing of the acknowledgment, Tracy’s complaint was outside of

the parameter of the Paternity Act and there was no justiciable issue for the court to determine

about the paternity of M.R. Therefore the court had no jurisdiction to hear the paternity issues

raised by Tracy or enter the November 5, 2018 order.

¶ 21 This court has held that the circuit court lacks authority to disregard a valid

acknowledgment of paternity and revisit the father-child relationship outside of the parameters

expressed in the Parentage Act. We have previously held when a child has a legal parent, the

court lacks subject matter jurisdiction to revisit the issue of paternity because there is no longer a

justiciable issue. See In re Parentage of G.E.M., 382 Ill. App. 3d 1102, 1121 (2008) (the court

lacks subject matter jurisdiction to revisit or re-determine the existence of a father and child

relationship for a child who already has a legal father); In re Custody of C.C., 2013 IL App (3d)

120342, ¶ 63 (once a father is adjudicated to be the legal parent of a child, there is no longer a

justiciable issue concerning parental rights).

¶ 22 In G.E.M., the mother had sexual relations with three men during the possible period of

conception. After the birth of the child, one of the men, Richard, signed a VAP. The mother

subsequently filed a petition to establish a parent-child relationship against Richard in DuPage

County. The trial court entered an agreed order declaring Richard to be the father and awarded

the mother child support. Two years later, the mother filed a petition to terminate child support,

alleging that Richard was not the biological father. Subsequently, the trial court entered an order

declaring that Richard was not the child’s father and vacated all orders of parentage against him.

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A year later, the mother filed a parentage petition in Will County against another man, Louis.

Louis filed a motion to dismiss, alleging that, since the mother and Richard had signed an

acknowledgment of paternity, the issue had been resolved and was binding. The trial court

denied the motion to dismiss and entered a judgment of paternity against Louis, who appealed

the order.

¶ 23 The appellate court reversed, holding the DuPage County order vacating Richard’s

parentage of G.E.M. was void for lack of subject matter jurisdiction. The appellate court ruled

the DuPage circuit court had no subject matter jurisdiction to revisit or re-determine the

existence of a father and child relationship for a child who already had a legal father. Richard, by

signing the VAP, was G.E.M.’s legal father. Therefore, there was no justiciable issue concerning

the paternity of G.E.M. for the court to determine. The court also reversed the Will County court,

holding the court erred in denying the motion to dismiss.

¶ 24 When Tracy filed his complaint, Monte had signed a VAP seven years earlier and was

found to be the father of M.R. in a subsequent dissolution of marriage judgment, similar to the

circumstances in G.E.M. The VAP was never rescinded or vacated. Like in G.E.M., M.R. had a

legal father when Tracy filed his complaint. And like G.E.M. another court had entered an order

finding Monte was the father of M.R. There was no justiciable issue for the court to consider

concerning the paternity of M.R. Therefore, the court lacked subject matter jurisdiction to

consider the issue of M.R.’s paternity and the November 5, 2018 paternity order is void.

¶ 25 Tracy argues that he filed his parentage complaint “within the allocated time according to

the rule and [his] actual knowledge of the matter.” (Emphasis added). He argues that because he

did not receive the results of the over-the-counter DNA test until 2016, he did not have actual

knowledge that he was the father of M.R. until 2016. Therefore, his petition was timely filed

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within two years of his knowledge that he was the father of M.R. The trial court agreed the

petition was timely filed holding it was filed within two years of his actual knowledge.

¶ 26 Tracy’s argument that he may file a paternity complaint within two years of actual

knowledge is not found in any of the applicable statutes. Tracy apparently conflates the remedies

available to the signers of a VAP to rescind the VAP on grounds of disability, mistake, or fraud

under section 309 (750 ILCS 46/309) with the remedies available to third parties like Tracy who

who are not signatories on a VAP but seek to establish a parental relationship with a child for

whom a VAP was signed. 750 ILCS 46/609(b).

¶ 27 Under section 307, a signer of a VAP has the right to rescind a VAP within 60 days of its

signing. However, after 60 days the procedure for rescinding the acknowledgment is found in

sections 308 and 309. 750 ILCS 46/307-09. Section 308 provides that after the 60-day rescission

period has expired, a signatory to a VAP may only challenge it as provided in Section 309:

“Sec. 308. Challenge after expiration of period for rescission. After the period for

rescission under Section 307 of this Act has expired, a signatory of a voluntary

acknowledgment or denial may commence a proceeding to challenge the

voluntary acknowledgment or denial only as provided in Section 309 of this Act.”

750 ILCS 46/308 (West 2020)

Section 309 of the Act, provides:

“Sec. 309 (a) A voluntary acknowledgment and any related denial may be

challenged only on the basis of fraud, duress, or material mistake of fact by filing

a verified petition under this Section within 2 years after the effective date of the

voluntary acknowledgment or denial, as provided in Section 304 of this Act. Time

during which the person challenging the voluntary acknowledgment or denial is

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under legal disability or duress or the ground for relief is fraudulently concealed

shall be excluded in computing the period of 2 years.

(b) The verified complaint, which shall be designated a petition, shall be filed in

the county where a proceeding relating to the child was brought, such as a support

proceeding or, if none exists, in the county where the child resides. Every

signatory to the voluntary acknowledgment and any related denial must be made a

party to a proceeding to challenge the voluntary acknowledgment or denial. The

party challenging the voluntary acknowledgment or denial shall have the burden

of proof. The burden of proof to challenge a voluntary acknowledgment is clear

and convincing evidence.” 750 ILCS 46/309 (West 2020).

Section 309 provides the procedure for signatories of a VAP to rescind or challenge a VAP.

Section 309 is not applicable to a person like Tracy who is not a signatory on the VAP.

¶ 28 Instead, section 609 is the statute permitting a non-signatory of a VAP, like Tracy, to

challenge a VAP, not section 309. Where a VAP has been signed for a child section 609 provides

a two-year limitations period, with no extensions provided for mistake or fraud for a person who

is not a signatory on the acknowledgment to petition to establish a parent-child relationship. 750

ILCS 46/609(b)

¶ 29 When a child has an acknowledged or adjudicated parent, as in this case, the person

seeking to assert parentage “must commence a proceeding not later than 2 years after the

effective date of the acknowledgment or adjudication (emphasis added).” 750 ILCS 46/609(b)

(West 2020); John V. v. Rebecca Z., 2020 IL App (3d) 170802-U, ¶¶ 37-38. Tracy’s parentage

action was commenced more than seven years after the effective date of the acknowledgment of

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paternity. Therefore M.R. had a legal father when Tracy filed his complaint and there was

nothing for the court to decide. G.E.M., 382 Ill. App. 3d at 1121.

¶ 30 Even if we assume arguendo, the legal disability, mistake, and fraud provisions in 309

applied to a non-signer of a VAP to extend the two-year time to file his petition to establish a

parental relationship with a child, Tracy still could not prevail. Tracy did not plead or argue he

was under legal disability, or a victim of fraud, duress, or material mistake of fact. Although the

circuit court never conducted an evidentiary hearing, there is evidence Tracy was told he was

possibly M.R.’s father more than two years before he filed his October 2018 complaint. Tracy

filed pleadings which constitute judicial admissions that Monte told Tracy before the summer of

2016 that Tracy may be M.R.’s biological father. On January 6, 2020, Tracy filed a petition to

vacate the VAP. Tracy made the following allegations:

“7. In 2016 MECHELE confessed to MONTE RUFUS that the minor child was

not his.

8. The Respondent’s then husband, MONTE called the Petitioner and informed

him he may be the father of the minor child.

9. MONTE then took a DNA test to confirm parentage of minor child and the test

came back negative.

10. MECHELE and MONTE then relocated to Texas for the summer of 2016.

11. When they returned in the fall of 2016, MONTE and TRACY agreed to meet

for TRACY to take a DNA test, which came back positive.”

¶ 31 Tracy therefore admits in his pleadings that Monte told Tracy before the summer of 2016

that he may be the biological father of M.R. More than two years elapsed between the time Tracy

learned he was possibly the father of M.R. and the time he filed his complaint. Therefore, Tracy

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can no longer establish a relationship with M.R. because the complaint was filed more than two

years after the VAP was signed and also more than two years after he learned he may be the

biological father of M.R. 750 ILCS 46/609(b)

¶ 32 The allegations in his pleadings constitute judicial admissions binding on Tracy. Carlson

v. Michael Best & Friedrich LLP, 2021 IL App (1st) 191961, ¶ 64 (“A judicial admission is a

deliberate, clear, unequivocal statement of a party about a concrete fact within that party’s

peculiar knowledge.”); US Bank, National Association v. Avdic, 2014 IL App (1st) 121759, ¶ 38.

Tracy certified his complaint under section 1-109 of the Code of Civil Procedure and he has

consistently reiterated those factual assertions numerous times in the trial court and before this

court. His admissions establish that M.R.’s paternity was discussed with Tracy before the

summer of 2016. This evidence negates any notion that Tracy was subject to fraudulent

concealment during the two years between the summer of 2016 and the summer of 2018.

Therefore, his complaint filed in October of 2018 was untimely, even if the limitation extending

provisions of section 309 applied to him.

¶ 33 Finally, from our review of the record we note that when the court made the November

5, 2018 finding of paternity in Tracy’s favor, Monte was not named a party to the proceedings

despite being M.R.’s legal father. To the circuit court’s credit, it had no knowledge that M.R.

already had a legal father at the time it issued a finding of paternity. And when a hearing officer

discovered the existence of Monte’s parental rights, the court acknowledged that Monte may be a

necessary party in the parentage case and that its finding of paternity in favor of Tracy might be

void. However, the case was transferred to a new judge and instead of vacating the order finding

Tracy to be M.R.’s legal father, the trial court denied Mechele’s and Monte’s motions to vacate

the order and allowed the finding of paternity in Tracy’s favor to stand.

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¶ 34 We find Monte was a necessary party to the complaint filed by Tracy in October 2018

that resulted in the order of paternity at issue because Monte’s rights as M.R.’s legal father were

adversely affected by the order. A necessary party is one whose presence is required for any one

of three reasons: (1) to protect an interest that the absent person has in the subject matter of the

controversy that would be materially affected by a judgment entered in his absence; (2) to reach

a decision that will protect the interests of those parties before the court; and (3) to enable the

court to make a complete determination of the controversy. In re Estate of Ostern, 2014 IL App

(2d) 131236, ¶ 18. “The requirement of joinder of necessary (and indispensable) parties is

absolute and inflexible.” Lain v. John Hancock Mutual Life Insurance Co., 79 Ill. App. 3d 264,

270 (1979). Both the trial and appellate court have a duty to enforce this principle of law sua

sponte when it is brought to their attention. National Bank v. S.N.H., Inc., 32 Ill. App. 3d 110,

121 (1975). An order entered without jurisdiction over a necessary party is null and void. People

ex rel. Meyer v. Kerner, 35 Ill. 2d 33, 38 (1966); In re Adoption of Ledbetter, 125 Ill. App. 3d

306, 308 (1984). Monte clearly had an interest in the complaint filed by Tracy. Because the

November 5, 2018 paternity order was entered without Monte, M.R.’s legal father, the order was

entered without a necessary party and is void.

¶ 35 We find the circuit court erred when it failed to vacate the November 5, 2018 finding of

paternity. Therefore, we reverse the order denying the motion to vacate the November 5, 2018

finding of paternity. We further instruct the circuit court to vacate any subsequent orders

granting parental rights or any obligations flowing from that order.

¶ 36 We also note that in January 2020 Tracy filed a motion to vacate the VAP and a motion

to vacate the judgment of dissolution of the marriage between Monte and Mechele. The circuit

court has not ruled on these motions. It is clear Tracy’s motion to vacate the VAP is time barred

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and Tracy has no standing to contest the judgment of dissolution. This case has been pending for

4 years. In the interests of judicial economy, which are heightened in this accelerated case

concerning the parentage of a child, and in the exercise of our discretion under Illinois Supreme

Court Rule 366(a)(5) (West 2020) (eff. Feb. 1, 1994), upon remand we further instruct the circuit

court to dismiss with prejudice Tracy’s parentage action (2018 D 679242), Tracy’s January 2020

petition to vacate the VAP, and Tracy’s motion to vacate the judgment of dissolution of

marriage.

¶ 37 CONCLUSION

¶ 38 Based on the foregoing, we reverse and remand with instructions.

¶ 39 Reversed, and remanded with instructions.

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