dissenting:
The majority advances three reasons to support its determination that the trial court properly denied the plaintiff’s request for post-judgment relief. First, the majority states that there was no evidence of fraudulent concealment on the part of the defendant because, even though she represented under oath that the plaintiff was Erik’s natural father, she could not have been certain of that fact. Therefore, the plaintiff did not establish a knowingly false statement of material fact on which he had the right to rely. (Metropolitan Bank & Trust Co. v. Oliver (1972), 4 Ill. App. 3d 975, 978, 283 N.E.2d 62.) Second, the majority concludes that the plaintiff failed to exercise due diligence in the original paternity action because he did not insist on a blood test to establish paternity. Third, the majority concludes that two separate blood tests which excluded the plaintiff as Erik’s natural father were “beside the point” and therefore properly excluded by the trial court. I respectfully dissent from the majority opinion because I disagree with all three of these conclusions.
First, I believe that the defendant’s categorical representations of very private matters concerning Erik’s parentage are sufficient to constitute fraudulent concealment. Fraudulent concealment has been defined as consisting of affirmative acts designed to prevent the discovery of a cause of action or ground for relief. (In re Marriage of Halas (1988), 173 Ill. App. 3d 218, 224, 527 N.E.2d 474.) The majority states that the defendant’s representations that she was sure the plaintiff was Erik’s father were “at the most opinions” and that “[h]ow she could have been certain” of those representations is left unexplained. (Emphasis in original.) (238 Ill. App. 3d at. 77-78.) The explanation is really quite simple. The defendant could have been “certain” only if she was engaging in sexual intercourse with no one other than the plaintiff. This is the only logical interpretation of the defendant’s repeated representations that she was sure the plaintiff was Erik’s father. At the hearing on his section 2 — 1401 petition, the plaintiff testified that “I asked her if she was sure if it was my child. And she said she is sure it was my child ***.” When asked whether he ever determined whether the defendant was having sexual relations "with anyone else, the plaintiff responded, “I didn’t have her investigated. I did question her to see if she was having anybody else.” According to the plaintiff, the defendant never gave him any indication that it was possible that he was not Erik’s father, and he trusted her.
Supporting the plaintiff’s position that the defendant made misrepresentations as to Erik’s parentage at the time of the judgment in the paternity action is her continued insistence that the plaintiff is in fact the only one who could be Erik’s father. After the blood tests in the proceeding excluded the plaintiff as the father, the defendant filed a petition asking for a second blood test. Her reason was that the first blood test “must have [been] a mistake.” She further alleged that “at the time the child was conceived, the Defendant *** was a virgin and had her first sexual intercourse with [the plaintiff].” She then stated that “during all of the time in question, she had no contact with any other man.”
Furthermore, in her answer to the plaintiff’s 1984 complaint to establish paternity, the defendant admitted under oath that the plaintiff was Erik’s natural father. If, as the majority appears to accept, the defendant was engaging in a sexual relationship with more than one man at the time Erik was conceived, this admission was certainly a misrepresentation because she would have had no way of knowing whether the plaintiff was the father.
In Bellow v. Bellow (1976), 40 Ill. App. 3d 442, 352 N.E.2d 427, this court found fraudulent concealment based on the defendant’s misrepresentations as to his future income made in a letter sent by the defendant’s lawyer to the plaintiff’s lawyer. The court found that the record strongly suggested that the defendant was well aware of his earning power and that the plaintiff relied upon the misrepresentations to her detriment. The court stated that although settlements are looked upon with favor, a settlement agreement may be set aside where inequity and unfairness have been accomplished by some element of coercion or misrepresentation. (Bellow, 40 Ill. App. 3d at 445-46, 352 N.E.2d at 431.) In my opinion, the facts in the case at bar are sufficient to establish fraudulent concealment.
The second conclusion reached by the majority is that the plaintiff did not exercise due diligence in determining paternity during the original paternity action. Due diligence requires that the party bringing the section 2 — 1401 petition have a reasonable excuse for failing to act within the appropriate time. (In re Marriage of Halas (1988), 173 Ill. App. 3d 218, 224, 527 N.E.2d 474.) In determining reasonableness, all of the circumstances must be examined, including the conduct of the litigants at the time the original judgment was entered. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 222, 499 N.E.2d 1381.) In certain limited circumstances, the due diligence requirement may be waived if the result is unfair, unjust or unconscionable. Airoom, 114 Ill. 2d at 225, 499 N.E.2d at 1388.
In the case at bar, the defendant told the plaintiff before Erik was born that she was sure the child was the plaintiff’s. The plaintiff signed Erik’s birth certificate, and the defendant allowed him to visit with Erik even after she married another man. It was only when the defendant threatened to cut off visitation that the plaintiff filed an action to establish paternity. In her answer to the complaint, the defendant admitted that the plaintiff was Erik’s natural father. An agreed order was then entered establishing the plaintiff’s paternity. The majority states that before he entered into the agreed order, the plaintiff should have insisted upon blood tests to establish that he was the father. In my view, this imposes an unwarranted burden upon the plaintiff given the facts of this case. At the time the suit was filed, the possibility that the plaintiff was not Erik’s father had never been raised. I do not believe that the plaintiff’s failure to insist upon a blood test established that he failed to exercise due diligence in the original paternity suit. The plaintiff had a right to rely on the categorical assertion that he was the father where there was evidence that the defendant represented to the plaintiff that he was the only man with whom she had had sexual relations. This is buttressed by the fact that at the time of the instant proceeding she still insists that the blood test is in error and that during the time in question she had no contact with any other man.
The third conclusion stated by the majority is that evidence of two blood tests which show that the plaintiff is not the natural father of Erik are “beside the point” and were properly excluded by the trial court. (238 Ill. App. 3d at 79.) I disagree. One of the elements the plaintiff must establish in requesting section 2—1401 relief is that he has a meritorious defense. (In re Marriage of Halas (1988), 173 Ill. App. 3d 218, 223, 527 N.E.2d 474.) I believe that the test results, which the plaintiff asserts excluded him as the father, were admissible on that issue.
With little grace and for no legal reason, the plaintiff has endured a personal attack which characterizes him as a person who is trying to disown his child because he wants to be relieved of the burdens of fatherhood. With no apparent support in the record, the majority refers to the “disposable” nature of fatherhood and suggests that biological paternity was not the plaintiff’s true concern. The majority repeatedly accuses the plaintiff of believing the defendant. I find these attacks particularly unfair in light of the fact that the plaintiff, when told the child was his, accepted his responsibilities by establishing a relationship with the child and making support payments.