{ "id": 2528628, "name": "In re MARRIAGE OF KOENIG (Krista Marie Koenig, by and through her Mother, Shirley Jewel Koenig, Petitioner-Appellant, v. Harold Joseph Koenig et al., Respondents-Appellees)", "name_abbreviation": "Koenig v. Koenig", "decision_date": "1991-03-28", "docket_number": "Nos. 1\u201489\u20143325, 1\u201490\u20140668 cons.", "first_page": "1045", "last_page": "1051", "citations": [ { "type": "official", "cite": "211 Ill. App. 3d 1045" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "558 N.E.2d 1355", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 810", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2593133 ], "pin_cites": [ { "page": "823" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0810-01" ] }, { "cite": "541 N.E.2d 1159", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "185 Ill. App. 3d 778", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2647860 ], "pin_cites": [ { "page": "788" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0778-01" ] }, { "cite": "367 N.E.2d 442", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "52 Ill. App. 3d 220", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3390028 ], "year": 1989, "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/52/0220-01" ] }, { "cite": "530 N.E.2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "175 Ill. App. 3d 679", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3554285 ], "year": 1977, "pin_cites": [ { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0679-01" ] }, { "cite": "97 S. Ct. 2094", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 2109 ], "weight": 3, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/431/0816-01" ] }, { "cite": "546 N.E.2d 609", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. 2d 491", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569491 ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0491-01" ] }, { "cite": "516 N.E.2d 934", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "163 Ill. App. 3d 697", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3314296 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/67/0480-01" ] } ], "analysis": { "cardinality": 700, "char_count": 14086, "ocr_confidence": 0.759, "pagerank": { "raw": 1.1374824535029361e-07, "percentile": 0.5776637942984321 }, "sha256": "a4feab1d46a1928f96ccac49655b66684fbc231604043ce77abe48a5852215b0", "simhash": "1:fc83b1cf7cca5e83", "word_count": 2295 }, "last_updated": "2023-07-14T14:56:54.383547+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF KOENIG (Krista Marie Koenig, by and through her Mother, Shirley Jewel Koenig, Petitioner-Appellant, v. Harold Joseph Koenig et al., Respondents-Appellees)." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nPetitioner, Shirley Jewel Koenig (Shirley), appeals from the circuit court's dismissal of her petition seeking a paternity declaration affecting both respondents. The circuit court dismissed her petition as to respondent Donald Tegeler (Donald) on December 2, 1989, and dismissed her petition as to respondent Harold Joseph Koenig (Harold) on February 21, 1990. Timely appeals were taken from both orders, which have been consolidated.\nWe are asked to consider whether the circuit court erred in dismissing the petition to establish parentage, purporting to be brought on behalf of the minor child, Krista Marie Koenig (Krista), because the child's mother, Shirley, lacked standing to bring it. For reasons later stated, we affirm.\nShirley and Harold were married on September 29, 1984. One daughter, Krista, was born on March 17, 1985. On October 28, 1985, Harold petitioned for dissolution of marriage, charging Shirley with various acts of extreme and repeated mental cruelty and questioning his role in Krista\u2019s parentage. Shirley denied the charges and the challenge to Krista\u2019s paternal parentage in an answer filed November 18, 1985. She filed a counterpetition for dissolution in which she repeatedly referred to Krista as Harold and Shirley\u2019s baby.\nShirley later withdrew her counterpetition, and the circuit court entered an agreed judgment of dissolution in the nature of a default matter on April 28, 1986. The judgment incorporated a dissolution settlement reached and signed by Harold and Shirley. That agreement found that \u201cone child was born to this marriage,\u201d naming Krista. It further provided that Harold \u201cshall have the sole permanent care, custody, control and education\u201d of Krista. The judgment stated that \u201cone child was born to the parties, namely: KRISTA MARIE KOENIG, *** [on] March 17, 1985.\u201d The judgment gave Harold sole permanent custody of Krista. Shirley was granted visitation rights. A certified copy of Krista\u2019s birth certificate, showing Harold as Krista\u2019s father, was filed in the course of later proceedings.\nDuring the next three years, both Harold and Shirley filed various papers in the circuit court alleging that the other was mistreating Krista, culminating in Harold\u2019s filing of an \u201cemergency petition for injunctive and other relief,\u201d seeking the suspension of Shirley\u2019s visitation rights and the appointment of an attorney to act in Krista\u2019s best interests.\nOn March 8, 1989, Shirley filed a petition for a rule to show cause and a petition to declare the parentage of Krista. Count I of the petition sought, among other things, enforcement of Shirley\u2019s visitation rights and a change of Krista\u2019s custody to Shirley. In count II, as Krista\u2019s \u201cnatural guardian,\u201d she sought on the child\u2019s behalf a declaration of parentage pursuant to the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2501 et seq.) (Parentage Act). Shirley claimed that, at the time she married Harold, she was pregnant as a result of sexual intercourse with Donald in July 1984. Shirley alleged that she had had no sexual relations with Harold before their marriage in September of 1984.\nThe circuit court appointed Joel Schaps to serve as Krista\u2019s attorney on March 10, 1989, and his appearance was filed on March 31, 1989. Schaps also has been referred to as Krista\u2019s guardian ad litem by the court and the parties; however, no formal appointment to that effect appears in the record.\nDonald moved to strike the petition to declare paternity, arguing that (1) the dissolution of marriage agreement, signed by both Shirley and Harold, acknowledged that Krista was born to both parties and constituted a binding admission on Shirley\u2019s part; (2) Krista\u2019s birth certificate was signed by Shirley, designating Harold as the natural father; and (3) the action was time barred under section 8 of the Parentage Act because it was filed more than two years after Shirley admitted having knowledge of the relevant facts relating to the issue of paternity. Shirley\u2019s response claimed, among other things, that (1) Krista was not a party to the divorce action and was entitled to have the issue of paternity resolved; (2) the two-year limitation period provided by section 8 of the Parentage Act did not apply and could not be raised by Donald in any event; and (3) Shirley had standing to bring this action as Krista\u2019s natural guardian. The circuit court granted Donald\u2019s motion to strike the paternity petition following a hearing on November 2, 1989. The court questioned whether it was in Krista\u2019s best interest to be told at that point in time that Harold was not her father, but that Donald, a total stranger to her, was her father. Turning to the legal issue, the court ruled that under the law Shirley did not have standing to raise the paternity issue.\nHarold evidently filed, with leave of court, an amended response to Shirley\u2019s petition, adopting Donald\u2019s arguments. At the subsequent hearing on the motion, the circuit court struck the paternity action, again finding that Shirley lacked the standing to bring such an action on the minor child\u2019s behalf.\nShirley appeals from both dismissal orders.\nI\nShirley identifies circuit court error in its having determined that she lacked standing to file the petition questioning paternity on Krista\u2019s behalf.\nIn support of her argument, Shirley urges that a \u201cdismissal of the petition was not in the child\u2019s best interests because it deprived the child of a forum in which to establish parentage.\u201d Section 7(b) of the Parentage Act provides, in part, that \u201c[a]n action to declare the non-existence of the parent and child relationship may be brought by the child, the natural mother or a man presumed to be the father.\u201d (Ill. Rev. Stat. 1987, ch. 40, par. 2507(b).) Absent her judicial admission as to Harold\u2019s paternity (see State Security Insurance Co. v. Linton (1978), 67 Ill. App. 3d 480, 384 N.E.2d 718), Shirley might have challenged the existence of a parent and child relationship between Harold and Krista on her own behalf, without involving Krista. She brought no action. Section 8 of the Parentage Act, with its two-year limitation provision (Ill. Rev. Stat. 1987, ch. 40, par. 2508) might also have played a part in Shirley\u2019s inaction. In refraining from having this matter resolved, Shirley has permitted four years to elapse, resulting in the establishment of a concomitant relational development between Harold and Krista, together with his ongoing financial support for the child. The circuit court was faced with the choice of either allowing Donald, a stranger, who disclaimed parenthood and wanted nothing to do with Krista, to be named Krista\u2019s father, or permitting Harold to continue his role as Krista\u2019s supportive father and primary caretaker from her first year of existence, to which the parties had agreed years before. Under these circumstances the circuit court understandably challenged Shirley\u2019s insistence that Krista\u2019s best interests were involved in this controversy.\nII\nShirley disputes the existence of any legal basis upon which to support the circuit court\u2019s conclusion that she lacked standing to file the petition on Krista\u2019s behalf. The Parentage Act also provides that \u201c[i]f any party is a minor, he or she may be represented by his or her general guardian or a guardian ad litem appointed by the court.\u201d (Ill. Rev. Stat. 1987, ch. 40, par. 2507(c).) The legislature has thereby limited a minor child\u2019s representative to either his or her general guardian or court appointed guardian ad litem. Although the Act does not itself define \u201cgeneral guardian,\u201d similar statutory provisions have been defined as \u201cthe guardian of the person, or of all the property of the ward\u201d and, absent appointment by the court, does not include a minor\u2019s natural mother (Shearer v. Coats (S.D. 1989), 434 N.W.2d 596, 598); \u201cone appointed by the Supreme, or Surrogate\u2019s Court\u201d (In re McGuire\u2019s Estate (1921), 115 Misc. 84, 189 N.Y.S. 62, 63); and \u201cone who has the general care and control of the person and estate of his ward\u201d (Black\u2019s Law Dictionary 635 (5th ed. 1979)). In the case sub judice, Shirley does not qualify as Krista\u2019s general guardian because Harold was given \u201cthe sole permanent care, custody, control and education of the minor child\u201d in the couple\u2019s divorce settlement and agreed judgment. Nor was Shirley appointed Krista\u2019s guardian ad litem. Under the statutory language and circumstances of this case, Shirley lacks standing to bring the paternity petition on Krista\u2019s behalf.\nFurther support for this conclusion can be found in In re Marriage of Ingram (1988), 176 Ill. App. 3d 413, 531 N.E.2d 97. There, the child\u2019s mother and father were granted a dissolution by the circuit court, which reserved the issue of child custody. Several months later, the mother moved for summary judgment, alleging that the father was not the child\u2019s biological father. On appeal of the circuit court\u2019s order granting custody to the father, the mother argued that her action should be construed as one brought on behalf of the child, within the meaning of the Act. The appellate court noted that the mother \u201cseeks to deprive the child of the only father he has known, thereby depriving [him] of a source of financial and emotional support\u201d and refused to hold such actions to be \u201con the child\u2019s behalf.\u201d (In re Marriage of Ingram, 176 Ill. App. 3d at 418. See also McDonald v. McGowan (1987), 163 Ill. App. 3d 697, 516 N.E.2d 934 (court properly dismissed paternity action brought on behalf of minor child because petitioner was neither the child\u2019s general guardian nor guardian ad litem and his interests conflicted with those of the minor).) Shirley, here, attempts to do the very same thing.\nShirley also argues that Simcox v. Simcox (1989), 131 Ill. 2d 491, 546 N.E.2d 609, controls this issue because the supreme court there upheld a paternity action virtually identical to that at issue here. Simcox, however, is factually distinguishable from the instant case because the petitioner there was the child\u2019s mother and custodial parent. Here, Shirley does not have custody of Krista. Simcox, therefore, does not address the issue presented here.\nIll\nShirley also claims error in the circuit court\u2019s failure to appoint a guardian ad litem for Krista. At bar, the court appointed Schaps to serve as Krista\u2019s attorney; however, at various times during the proceedings, the court referred to Schaps as the child\u2019s \u201cguardian.\u201d The order which appointed Schaps to the action used the word \u201cattorney,\u201d and Schaps filed his appearance as the child\u2019s attorney. Nevertheless, Schaps\u2019 role as attorney rather than guardian ad litem in this matter is one which expands the protection given to a child. The Historical and Practice Notes to section 506 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 506), which authorizes the appointment of an attorney for the child, observe:\n\u201cThe importance of providing children with their own attorneys in family litigations was stressed in Smith v. Organization of Foster Families, 97 S. Ct. 2094, 53 L. Ed. 2d 14, 431 U.S. 816 (1977). In Smith, which involved a challenge to the New York State procedures for removal of foster children, the Supreme Court observed that parents do not necessarily speak for the child:\n[A]ll contend that the position they advocate is most in accord with the rights and interest of the children. In this situation, the District Court properly appointed independent counsel to represent the children, so that the Court could have the benefit of an independent advocate for the welfare [emphasis in original] of the children, unprejudiced by the possibly conflicting interests and desires of the other parties.\u201d (Emphasis added.) (Ill. Ann. Stat., ch. 40, par. 506, Historical & Practice Notes, at 631 (Smith-Hurd 1980).)\nIt is true that under certain circumstances, the circuit court has an obligation to appoint a guardian ad litem, particularly when a minor is without proper representation (see Majidi v. Palmer (1988), 175 Ill. App. 3d 679, 685, 530 N.E.2d 66; McDonald v. McGowan, 163 Ill. App. 3d at 700; Roth v. Roth (1977), 52 Ill. App. 3d 220, 226, 367 N.E.2d 442); however, a guardian ad litem need not be appointed in every case and is not mandatory. Klawitter v. Crawford (1989), 185 Ill. App. 3d 778, 788, 541 N.E.2d 1159.\nAt bar, Krista\u2019s custodial parent asked the court to appoint an attorney to act in the child\u2019s best interests. Schaps filed an appearance. He attended some hearings, but never joined or intervened in Shirley\u2019s petition to declare paternity, although he had the authority to do so. His failure to involve Krista could well have been construed by the circuit court as acting in the child\u2019s best interests because a determination of a child\u2019s biological father through a paternity action is not always in the child\u2019s best interest. (In re Custody of D.A. (1990), 201 Ill. App. 3d 810, 823, 558 N.E.2d 1355.) Under the facts present in the case at bar, Krista\u2019s interests were adequately protected so as not to necessitate the additional appointment of a guardian ad litem, especially in view of the fact that the child already was represented by an appointed attorney.\nFor the foregoing reasons, the judgment of the circuit court must be affirmed.\nAffirmed.\nSCARIANO, P.J., and DiVITO, J., concur.\nAt oral argument, Shirley\u2019s counsel represented that a petition for change of custody, necessarily involving Krista\u2019s best interests, is presently pending in the circuit court.", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Allan W. Masters, of Chicago (Mary Ellen Dienes, of counsel), for appellant.", "Schiller, DuCanto & Fleck, Ltd., of Chicago (Sarane C. Siewerth, of counsel), for appellee Harold Joseph Koenig.", "Marc R. Kadish, of Chicago, for appellee Donald Tegeler." ], "corrections": "", "head_matter": "In re MARRIAGE OF KOENIG (Krista Marie Koenig, by and through her Mother, Shirley Jewel Koenig, Petitioner-Appellant, v. Harold Joseph Koenig et al., Respondents-Appellees).\nFirst District (2nd Division)\nNos. 1\u201489\u20143325, 1\u201490\u20140668 cons.\nOpinion filed March 28, 1991.\nAllan W. Masters, of Chicago (Mary Ellen Dienes, of counsel), for appellant.\nSchiller, DuCanto & Fleck, Ltd., of Chicago (Sarane C. Siewerth, of counsel), for appellee Harold Joseph Koenig.\nMarc R. Kadish, of Chicago, for appellee Donald Tegeler." }, "file_name": "1045-01", "first_page_order": 1067, "last_page_order": 1073 }