dissenting:
I respectfully dissent. At issue is whether the respondent in an action by the Department of Public Aid may challenge his signed acknowledgment of paternity based upon fraud or material mistake of fact. The majority holds that a respondent may not raise those defenses in the child support action, but must instead file a motion under section 2 — 1401 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2 — 1401 (West 2000)). I believe that a plain reading of section 6 of the Parentage Act (Parentage Act) (750 ILCS 45/6 (West 2000)) and section 2 — 1401 of the Code provide otherwise.
Section 6(b) of the Parentage Act provides that a voluntary acknowledgment of paternity, signed by the respondent, “has the full force and effect of a judgment entered under this Act and serves as a basis for seeking a child support order without any further proceedings to establish paternity.” (Emphasis added.) 750 ILCS 45/6(b) (West 2000). Section 6(c) of the Parentage Act provides that a judicial proceeding to ratify the voluntary acknowledgment is neither required nor permitted. 750 ILCS 45/6(c) (West 2000). Thus, the Parentage Act clearly anticipates that a petition for child support could be the initial pleading in an action in the circuit court.
Section 6(d) of the Parentage Act then provides that the voluntary acknowledgment “may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenging party.” (Emphasis added.) 750 ILCS 45/6(d) (West 2000). A plain reading of the Parentage Act reveals no requirement that a voluntary acknowledgment of paternity may be challenged in court, but only by filing a motion for relief from judgment pursuant to section 2 — 1401 of the Civil Code. Rather, the Parentage Act clearly provides that when the voluntary acknowledgment is raised in a proceeding in court, it may be challenged, but “only on the basis of fraud, duress, or material mistake of fact.” 750 ILCS 45/6(d) (West 2000).
Likewise, a plain reading of section 2 — 1401 of the Civil Code indicates that a challenge to a voluntary acknowledgment of paternity is an exception to the provisions of section 2 — 1401, which provides: “Except as provided in Section 6 of the Illinois Parentage Act of 1984, there shall be no distinction between actions and other proceedings, statutory or otherwise, as to availability of relief, grounds for relief or the relief obtainable.” 735 ILCS 5/2 — 1401 (West 2000).
I also note that this court, albeit in dicta, seemed to indicate that a respondent similarly situated to the one herein could raise the defenses of fraud, duress, or material mistake of fact in a response to a Department of Public Aid petition for child support. In Department of Public Aid ex rel. Allen v. Dixson, 323 Ill. App. 3d 600, 602 (2001), this court stated, “[furthermore, subsection 6(d) provides that Dixson cannot challenge his voluntary acknowledgment of paternity except on the basis of fraud, duress, or material mistake of fact. There is no indication in the record that he alleged any of these circumstances before the trial court.”
Finally, I note a practical matter that renders the majority’s analysis highly problematic. The majority, noting that after 60 days a voluntary acknowledgment has the full force and effect of a judgment, concluded that a person who wishes to challenge his voluntary acknowledgment must do so by filing a motion under section 2 — 1401(b). However, filing such a motion would have been impossible for the respondent in this matter and for any other respondent similarly situated. Section 2 — 1401(b) of the Civil Code provides that a petition for relief from judgment under that section “must be filed in the same proceeding in which the order or judgment was entered.” (Emphasis added.) 735 ILCS 5/2 — 1401(b) (West 2000). It is well settled that a section 2 — 1401 petition arises out of the same proceeding in which the order or judgment that it is directed to was entered. Burchett v. Goncher, 235 Ill. App. 3d 1091, 1098 (1991); City of Des Plaines v. Scientific Machinery Movers, Inc., 9 Ill. App. 3d 438, 442 (1972). Here, there was no prior proceeding, nor had a prior order or judgment ever been entered. Simply put, Graham would not have been able to file a motion for relief from judgment under section 2 — 1401 because no judgment existed from which to seek relief.
For the foregoing reasons, I believe that the statutory framework establishing the force and effect of voluntary acknowledgments of paternity, and the procedural methods for challenging them, are to be found exclusively within the Parentage Act. I dissent on that basis.