{ "id": 3633397, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID FLIEGER, Defendant-Appellant", "name_abbreviation": "People v. Flieger", "decision_date": "1984-07-06", "docket_number": "No. 3\u201483\u20140813", "first_page": "604", "last_page": "608", "citations": [ { "type": "official", "cite": "125 Ill. App. 3d 604" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "198 Ill. App. 437", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2858599 ], "opinion_index": 0, "case_paths": [ "/ill-app/198/0437-01" ] }, { "cite": "344 N.E.2d 447", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. 2d 71", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426675 ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0071-01" ] }, { "cite": "256 N.E.2d 254", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ohio Op. 2d 157", "category": "reporters:state", "reporter": "Ohio Op. 2d", "opinion_index": 0 }, { "cite": "23 Ohio Misc. 199", "category": "reporters:state", "reporter": "Ohio Misc.", "case_ids": [ 1439638 ], "opinion_index": 0, "case_paths": [ "/ohio-misc/23/0199-01" ] }, { "cite": "231 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "87 Ill. App. 2d 213", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2548183 ], "weight": 3, "pin_cites": [ { "page": "217-18" }, { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/87/0213-01" ] }, { "cite": "436 U.S. 84", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1490667 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/436/0084-01" ] }, { "cite": "454 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 782", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3481872 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0782-01" ] }, { "cite": "462 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183393 ], "weight": 3, "year": 1983, "opinion_index": 0, "case_paths": [ "/us/462/0001-01" ] } ], "analysis": { "cardinality": 473, "char_count": 9179, "ocr_confidence": 0.748, "pagerank": { "raw": 1.4364686306106194e-07, "percentile": 0.6523115826443936 }, "sha256": "a758ace1b91d807d284a179210dfc4db9ce54f89d6b9f34e913fe95b15c073b9", "simhash": "1:2c87ee4db16f1ad9", "word_count": 1554 }, "last_updated": "2023-07-14T15:49:19.537276+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID FLIEGER, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE ALLOY\ndelivered the opinion of the court:\nThis is a paternity action brought against the defendant, David Flieger, pursuant to the provisions of the Illinois Paternity Act. (Ill. Rev. Stat. 1981, ch. 40, par. 1354.) At the time the complaint was filed, the mother and child were, and are, residents of Tazewell County. The defendant, served with summons in the State of Colorado, filed a special and limited appearance praying that service of summons be quashed because the Illinois court lacked in personam jurisdiction.\nIn an order entered December 9, 1983, the circuit court of Taze-well County denied the defendant\u2019s motion to quash and found that this case presents a substantial question of law, the determination of which on appeal would materially advance the litigation. Thereafter, the defendant sought leave to appeal pursuant to Supreme Court Rule 308, which was granted. 87 Ill. 2d R. 308.\nThe question presented is thus: whether in a paternity action, in which the mother and child are Illinois residents, an Illinois court has in personam jurisdiction over a defendant who was served with summons out of State and who is not a resident of Illinois.\nIn her complaint, the mother states that the alleged father of her child presently resides in Colorado and that she had sexual intercourse with him between December 1979 and January 1980 in New Jersey. She further states that her child was born in New Jersey but that she and her child are currently residents of Tazewell County, Illinois.\nIn its order denying the defendant\u2019s motion to quash, the court appears to indicate that its basis for finding in personam jurisdiction over the defendant is section 4 of the Illinois Paternity Act, which states, in pertinent part:\n\u201cThe action may be filed in the county where the complainant may be so pregnant or delivered, or where the person accused may reside or be found, or in the county where the child resides.\u201d Ill. Rev. Stat. 1981, ch. 40, par. 1354.\nThat paragraph further contains a two-year statute of limitations provision which has recently been declared unconstitutional. (Pickett v. Brown (1983), 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199; Jude v. Morrissey (1983), 117 Ill. App. 3d 782, 454 N.E.2d 24.) Following the portion of the paragraph pertaining to the statute of limitations provision is this statement:\n\u201cThe time any person so accused is absent from or conceals himself within the State shall not be computed.\u201d Ill. Rev. Stat. 1981, ch. 40, par. 1354.\nThe defendant has launched his attack against the statute on constitutional grounds, arguing that service of summons on him out of State in the instant paternity action has deprived him of due process because he has no \u201cminimum contacts\u201d with the State of Illinois (Kulko v. Superior Court of California (1978), 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct. 1690) and because he has not submitted to the jurisdiction of the Illinois courts by committing any of the acts enumerated in the long-arm statute. Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 209.\nThe State responds that the defendant had sufficient \u201cminimum contacts\u201d with the State of Illinois to subject him to the jurisdiction of the Illinois courts under the long-arm statute. According to the State, the provision of the long-arm statute which applies to the defendant is:\n\u201c(2) The commission of a tortious act within this State.\u201d (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 209(a)(2).)\nIn support of its position, the State relies on Poindexter v. Willis (1967), 87 Ill. App. 2d 213, 231 N.E.2d 1. In Poindexter, the complaint alleged that the mother, a resident of Madison County, Illinois, and the father, a resident of the State of Ohio, had intercourse in Champaign, Illinois. The defendant father, served with summons in Ohio, filed a motion challenging the Illinois court\u2019s jurisdiction over his person on the ground that he was not amenable to service in Ohio since he was not a resident of Illinois. In Poindexter, the court, indicating that the Illinois Paternity Act places a duty on the father of a child born out of wedlock whose paternity is established to support that child, liberally defined \u201ctortious act\u201d under the long-arm statute to include \u201cany act committed in this state which involves a breach of duty to another and makes the one committing the act liable *** in damages.\u201d (Poindexter v. Willis (1967), 87 Ill. App. 2d 213, 217-18, 231 N.E.2d 1.) The court concluded that \u201cthe failure of the father to support an illegitimate child constitutes a tortious act within the meaning of the statute and subjects him to the jurisdiction of the lili-nois courts\u201d under the long-arm statute. 87 Ill. App. 2d 213, 218, 231 N.E.2d 1.\nThe defendant in Poindexter raised his objection again in response to an action on the Illinois judgment filed in the Ohio court. (Poindex-ter v. Willis (1970), 23 Ohio Misc. 199, 51 Ohio Op. 2d 157, 256 N.E.2d 254.) The Ohio court found the reasoning of the Illinois court to be persuasive and ruled in favor of the mother.\nWe decline to follow Poindexter, however, and hold that where the only connection between the defendant and the State of Illinois is the present residence of a child who is allegedly his, there are not sufficient minimum contacts to allow an Illinois court to exercise jurisdiction over the person of the defendant.\nIn reaching this conclusion, we note initially that the parties appear to be in agreement that the only possible applicable provision of the long-arm statute is that pertaining to the commission of a tortious act. In Poindexter, the court found that the defendant father had breached his duty to support his child and thus had committed, for purposes of the long-arm statute, a tortious act. The error in this reasoning is that it assumes as true that which the plaintiff is seeking to prove. We are concerned here with a proceeding to establish paternity. Where paternity is disputed, the father of an illegitimate child may have a moral duty to support that child, but his legal duty of support only commences once paternity is established in an action such as the one in the instant case. (Ill. Rev. Stat. 1981, ch. 40, par. 1352; Cessna v. Montgomery (1976), 63 Ill. 2d 71, 344 N.E.2d 447.) It is apparent that if in fact the named defendant is not the father, then there was no legal duty for him to breach.\nIn the instant case, the defendant has had no contact whatsoever with the State of Illinois. Although it is alleged in the complaint that the defendant made one payment to the mother while she was in Illinois, that fact, even if true, would still not constitute sufficient minimum contact to say that the defendant has purposely availed himself of the benefits of Illinois law. Moreover, that allegation is denied by the defendant in his affidavit accompanying his motion to quash. At best, it is a disputed question of fact not ruled on and clearly not relied on by the trial court in reaching its decision.\nAdditionally, the State seeks to rely on People v. Wunsch (1916), 198 Ill. App. 437; however, we find that case to be inapposite. In Wunsch, the court presumed that the father was found within the city of Chicago when arrested.\nWe turn now to the statutory language on which the trial court appeared to rely in reaching its determination that it had the power to exercise in personam jurisdiction over this defendant. We find that the language in question does not relate to jurisdiction; rather, it is a venue provision rendering venue proper in the county where the child resides, where the defendant resides, or where \u201cthe complainant may be so pregnant or delivered.\u201d Ill. Rev. Stat. 1981, ch. 40, par. 1354.\nOther language found within that paragraph supports this conclusion. Specifically, we refer to the provision for tolling the two-year statute of limitations provision during the time the defendant is not within the State. When the two provisions are read together, it is clear that the first is intended to be a venue provision; otherwise, the second would be meaningless.\nOur conclusion is buttressed by another provision within the same paragraph which provides that a complaint filed by a pregnant woman must be accompanied by a sworn affidavit that the alleged father of the child has \u201cthreatened to leave the jurisdiction of the State of Illinois because of the pregnancy.\u201d (Ill. Rev. Stat. 1981, ch. 40, par. 1354.) One possible purpose for this provision is to allow the Hlinois court to act while the defendant is still in its power, despite the fact that the child has not yet been bom.\nFor the reasons stated above, we, therefore, reverse the order of the circuit court of Tazewell County denying the defendant\u2019s motion to quash service of process.\nReversed.\nSTOUDER and SCOTT, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE ALLOY" } ], "attorneys": [ "Donald K. Birner, of Pekin, for appellant.", "Bruce W. Black, State\u2019s Attorney, of Pekin (John X. Breslin and Gerry R. Arnold, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID FLIEGER, Defendant-Appellant.\nThird District\nNo. 3\u201483\u20140813\nOpinion filed July 6, 1984.\nRehearing denied August 7, 1984.\nDonald K. Birner, of Pekin, for appellant.\nBruce W. Black, State\u2019s Attorney, of Pekin (John X. Breslin and Gerry R. Arnold, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0604-01", "first_page_order": 626, "last_page_order": 630 }