author: JUSTICE EGAN

text:
    HANOVER INSURANCE COMPANY, Plaintiff-Appellant, v. RUSSELL SHOWALTER et al., Defendants-Appellees.
    First District (Sixth Division)
    No. 1 — 89—1740
    Opinion filed September 28, 1990.

      O’Connor, Schiff & Myers, of Chicago (Loretta M. Griffin, of counsel), for appellant.
    Mary Francis Hill, of Palos Heights, for appellee Russell Showalter.
    Berman, Trachtman & Malek, P.C., of Chicago (Michael H. Berman, of counsel), for appellee Steve Trexler.
   JUSTICE EGAN

delivered the opinion of the court;

The defendant, Russell Showalter (Showalter), was an insured under a homeowner’s personal liability policy issued by the plaintiff, Hanover Insurance Company (Hanover). Steve Trexler (Trexler) filed a negligence complaint against Showalter seeking compensation for damages. The complaint alleged that Showalter, a member of the defendant Parachute Center, Inc., had organized a parachute jump, that Trexler jumped from an airplane and that another jumper collided with Trexler causing Trexler’s main parachute to collapse and preventing Trexler’s emergency parachute from opening. The specific acts of negligence charged against Showalter were that he included Trexler in a jump of five persons when Showalter knew or should have known that Trexler was not qualified to participate in such a jump, that Showalter failed to inform all the members of the jump as to what elevation the parachutes would be opened and that he failed to be sure that Trexler was provided with a cut-away knife. Hanover defended Showalter under a reservation of rights and also filed a complaint seeking a declaration that its policy excluded coverage for Trexler’s alleged injuries based on a policy exclusion of coverage for injuries arising out of “the ownership, maintenance, use, loading or unloading of an aircraft.” The judge denied Hanover’s motion for summary judgment and granted the defendants’ motion for summary judgment, holding that either the term “aircraft” was ambiguous or that a parachute was not an “aircraft” within the meaning of the policy exclusion. Both sides in their briefs agree that no questions of fact exist and that the case should be decided on summary judgment one way or the other. The suggestion made by Hanover in oral argument in this court that, alternatively, a fact question might exist as to the degree of control a jumper has over a parachute and that the case could be remanded was not argued in the trial court or in the briefs in this court. Consequently, it will not be considered.

This case is one of first impression in Illinois, but a number of cases from other jurisdictions have dealt with the same or similar questions. Before we address them, it is appropriate to set forth general principles of law applicable to the construction of insurance policy exclusions. Those rules have been set out in Economy Fire & Casualty Co. v. Kubik (1986), 142 Ill. App. 3d 906, 909, 492 N.E.2d 504, 506:

“The rules governing the interpretation of insurance policies require the court to effectuate the intent of the parties. [Citation.] Where the terms of a policy are clear and unambiguous, its plain meaning will be given effect. [Citation.] Where, however, a provision in an insurance policy is subject to more than one reasonable interpretation, it is ambiguous and should be construed against the insurer and in favor of the insured. [Citation.] Ambiguous provisions in which an insurer seeks to limit its liability are construed most strongly against the insurer with the insurer having the obligation to show that the claim falls clearly within the exclusion. [Citation.] Thus, exclusionary provisions are applied only where the terms are clear, definite, and explicit. [Citation.]”

The parties dispute whether the contract is ambiguous; Showalter argues that the meaning of “aircraft” as used in the policy is uncertain and that, therefore, the contract is ambiguous. Trexler argues that there is no ambiguity and that a parachute clearly is not an aircraft. Hanover argues that, just as clearly, a parachute is an aircraft. For reasons to be discussed later, we agree with Trexler and Hanover that there is no ambiguity. Contract terms are not ambiguous simply because the parties do not agree on their meaning. (J.M. Beals Enterprises, Inc. v. Industrial Hard Chrome, Ltd. (1990), 194 Ill. App. 3d 744, 551 N.E.2d 340.) It is our task, therefore, as a reviewing court to construe or interpret the contract of insurance as a question of law unrestrained by the trial court’s judgment. (Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791, 405 N.E.2d 1051.) We conclude that we are able to determine the meaning of the language of the contract without resort to any rules of construction.

Our discussion appropriately begins with the language of the exclusion itself. Although some confusion existed in the trial court over the applicable provision of the policy, the parties now agree that the following language is at issue:

“Coverage E — Personal Liability and Coverage F — Medical Payments to other[s] [do] not apply to personal injury or property damage:
g) arising out of:
(1) the ownership, maintenance, use, loading or unloading of an aircraft[.] *** An aircraft means any contrivance used or designed for flight except model aircraft of the hobby variety not used or designed to carry people or cargo.”

“Flight” is not defined in the policy. Consequently, we must look to the accepted definition of the word. “Flight” is defined as follows:

“1(a): the act or mode of passing through the air by the use of wings *** 2(a): a passing or mode of passing through the air analogous (as in duration or distance) to that of a winged creature: a journey or voyage through the air.” (Webster’s Third New International Dictionary 870 (1981).)

A “parachute” is defined as follows:

“[A] folding umbrella-shaped device usu[ally] made of light fabric for retarding the speed of a body attached to it by offering resistance to the air and used especially] for making a safe descent from an airplane, dropping equipment or supplies from an airplane, or slowing down an airplane upon landing.” (Webster’s Third New International Dictionary 1635 (1981).)

The definition of “aircraft” is as follows:

“[A] weight-carrying machine or structure for flight in or navigation of the air that is designed to be supported by the air either by the buoyancy of the structure or by the dynamic action of the air against its surfaces — used of airplanes, balloons, helicopters, kites, kite balloons, orthopters, and gliders but chiefly of airplanes or aerostats.” (Emphasis added.) Webster’s Third New International Dictionary 46 (1981).

The policy’s definition of an aircraft as any contrivance used or designed for flight — a more narrow meaning than the dictionary definition of a device for “flight in or navigation o/the air” — requires the court to look to the ordinary meaning of “flight.” The dictionary definition of flight — the act or mode of passing through the air by the use of wings or in a manner analogous (as in duration or distance) to that of a winged creature, or a journey or voyage through the air-does not, in our judgment, encompass the nature of a descent by parachute. A conventional parachute is a device used to retard speed in order to allow an object to make a safe descent from an airplane or some other weight-carrying machine in the air. Such a descent is not made by the use of wings or in a manner analogous in duration, distance or otherwise to that of a winged creature. We agree with the trial court’s interpretation that a conventional parachute, as was used in this case, is not an “aircraft” as that term is used within the exclusion provision of the policy. As we will discuss later, other courts have held that a “parachute” is not an “aircraft.”

Hanover has cited a number of cases which can be distinguished as factually inapposite. In Totten v. New York Life Insurance Co. (1985), 298 Or. 765, 696 P.2d 1082, Fireman’s Fund American Life Insurance Co. v. Long (1978), 148 Ga. App. 216, 251 S.E.2d 133, and Fielder v. Farmers New World Life Insurance Co. (C.D. Cal. 1977), 435 F. Supp. 912, the courts held that an action for damages under a life insurance policy was barred where the death of the insured occurred while using a hang-glider. In Totten and Fielder the courts held that a hang-glider was an “aircraft.” ’’Aircraft” was not defined in the policies involved, In_Jfireman’s Fund the policy provision ex-eluded coverage for injuries resulting from “[tjravel or flight in any vehicle or device for aerial navigation.” (148 Ga. App. at 217.) The court held that a glider constituted a “vehicle or device for aerial navigation” within the terms of the exclusion. (148 Ga. App. at 217.) Fireman’s Fund cited and relied on Fielder. We note that gliders are included in the Webster’s dictionary definition of “aircraft.”

In Deschler v. Fireman’s Fund American Life Insurance Co. (Utah 1983), 663 P.2d 97, the Utah Supreme Court held in a three-to-two decision that a water-ski kite was a “vehicle or device for aerial navigation” within the meaning of the policy exclusionary clause. We note again that “kites” are included in the Webster definition of “aircraft.” Since kites and gliders are included in the dictionary definition of “aircraft,” those cases do not assist Hanover’s position here.

Hanover has also cited three cases which, like Fireman’s Fund and Deschler, involved a policy exclusion for “injuries sustained through the use of any vehicle or device for aerial navigation.” (Edison v. Reliable Life Insurance Co. (9th Cir. (1981), 664 F.2d 1130; Cabell v. World Service Life Insurance Co. (Tex. App. 1980), 599 S.W.2d 652; Stajnrajh v. Continental Casualty Co. (Ct. Common Pleas 1965), 41 Pa. D. & C. 411.) Those three cases involved injuries incurred while using some kind of parachute.

In Cabell, relied on heavily by Hanover, the court first described the device used:

“The chute [the deceased] used, unlike the conventional parachute used primarily for emergency exits from aircraft, was a square, wing-type device known as a para-plane. Compared to a round parachute, the para-plane was highly maneuverable and was specifically designed for sport parachuting. *** Because it was an airfoil, it moved forward through the air instead of only downward, at a speed of approximately 20 miles per hour, and used the aerodynamic principles of the airfoil to generate lift and retard its downward motion. The jumper could control its direction by means of steering toggles which could also be used to brake the chute and retard its forward speed. *** In many respects the para-plane was similar to a glider, and one witness testified that while riding a para-plane, one is not simply drifting or descending through the air but is actually flying in the direction he chooses.” (Emphasis added.) (Cabell, 599 S.W.2d at 652.)

Edison, which relied on Cabell, also involved a sport parachute. In Stajnrajh, a trial court opinion, the judge held that the parachute involved in the case was a device “for aerial navigation.” The opinion does not reflect what type of parachute was involved.

As can be seen, in all three cases the policy provision depended on the interpretation of the term “aerial navigation.” We think it significant that Hanover’s policy previously read “flight or navigation,” but the later policy which was issued to Showalter deleted the phrase “or navigation.” We also point out that the parachute involved in this case was not a sport parachute as was used in Cabell and Edison. We judge that Cabell, Edison and Stajnrajh are distinguishable and do not support Hanover’s position here.

In the last case cited by Hanover, Smith v. Mutual Benefit Health & Accident Association (1953), 175 Kan. 68, 258 P.2d 993, the policy excluded “injuries received as a result of or while participating in aeronautics or air travel except [as a fare-paying passenger].” (175 Kan. at 70, 258 P.2d at 995.) The court found the policy language unambiguous, concluding that “participating in aeronautics” meant “to share in sailing or floating in the air.” The court held that coverage was excluded because the plaintiff was engaged in an aeronautical maneuver when he voluntarily parachuted from an airplane. (175 Kan. at 73, 258 P.2d at 996-97.) The language at issue in Smith — “participating in aeronautics or air travel” — is also broader and more inclusive than that used by Hanover in the policy here — “use of *** any contrivance used or designed for flight.” A parachute user can perform an aeronautical maneuver, that is, descend from an airplane, but cannot fly.

The defendants refer us to two cases: Clark v. Lone Star Life Insurance Co. (Tex. App. 1961), 347 S.W.2d 290, and Childress v. Continental Casualty Co. (E.D. La. 1978), 461 F. Supp. 704, aff’d per curiam (5th Cir. 1979), 587 F.2d 809. In Clark, the policy limited damages for injuries incurred during “travel or flight in or on any species of an aircraft.” (Clark, 347 S.W.2d at 291.) The insured came to his death while parachute jumping. The policy did not define “aircraft.” Relying on dictionary definitions of “parachute,” the court held that a parachute was not an aircraft under the policy. 347 S.W.2d at 293.

In Childress, the policy excluded injuries sustained while “riding *** in any vehicle or device for aerial navigation.” (Childress, 461 F. Supp. at 705.) The insured was using a type of parachute which could be used to control descent with a great deal of precision. The court, citing Clark and relying on the Webster definition of parachute (the same definition which we have used), held that a parachute was not a device for aerial navigation. The court refused to follow Stajnrajh and distinguished Fielder, which involved a hang-glider, on its facts.

We believe that Clark is factually more closely applicable here than any other case since it involved “flight” in or on an “aircraft.” Hanover deprecates the applicability of Childress, pointing out that the Ninth Circuit Court of Appeals in Edison expressly refused to follow the Fifth Circuit’s holding in Childress. But no such rejection of Clark has been called to our attention. Hanover maintains that the “viability of [Clark] is in question given the more recent opinion of the Texas courts in [Cabell].” We do not read Cabell to be a repudiation of Clark. Cabell, which was decided by one district of the Texas Court of Civil Appeals, made reference to Clark, decided by another district of the Texas Court of Civil Appeals, without disapproval. (Cabell, 599 S.W.2d at 654 n.2.) Indeed, in Cabell, the reviewing court affirmed the trial court which had held, like Clark, that a parachute was not an aircraft.

In construing the language of the exclusionary provision, we judge that a parachute is not an “aircraft,” that is, a “contrivance used or designed for flight” and that the trial judge properly entered summary judgment in favor of the defendants.

Hanover also argues that the exclusion is applicable because the use of the airplane for ascent necessarily means that the accident occurred through the use or unloading of the aircraft. That argument was never made in the trial court, as the defendant Trexler has pointed out in his brief. Hanover has made no response to Trexler’s argument. In all memoranda and oral arguments in the trial court, the only issue raised was whether or not the parachute could be considered an aircraft within the meaning of the policy exclusion. A theory upon which a case is tried cannot be changed on review, and an issue not presented to or considered by the trial court cannot be raised for the first time on appeal. (Cosentino v. Price (1985), 136 Ill. App. 3d 490, 483 N.E.2d 297.) Thus, Hanover has waived its argument that the exclusion’s requirements were satisfied by Trexler’s use of an airplane to ascend to a height sufficient for parachuting and by his voluntarily jumping (that is, unloading) from the airplane.

For all these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LaPORTA

license: Public Domain

text:
      In re DOMINIQUE F. et al., Minors (Dominique F. et al., Respondents-Appellants, v. The People of the State of Illinois, Petitioner-Appellee).
    First District (6th Division)
    Nos. 1 — 90—1376 through 1 — 90—1378 cons.
    Opinion filed September 28, 1990.

      Patrick T. Murphy, Public Guardian, of Chicago (Michael G. Dsida, of counsel), for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Mark Ostrowski, Assistant State’s Attorneys, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (Ronald P. Alwin, Assistant Public Defender, of counsel), for other appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

This appeal arises from the trial court’s denial of motions for change of venue filed by Patrick Murphy, Cook County public guardian. The State brought petitions for adjudication of wardship for several minors, alleging abuse, neglect, and/or dependency under the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 1 et seq.). Murphy was appointed attorney and guardian ad litem for the minors and immediately petitioned the court for a change of venue, asserting that the trial judge was prejudiced against him.

The trial court entered and continued the petitions, and prior to ruling on them, entered orders of protection, returning the minors to their parents or guardians. The court ultimately denied the petitions for change of venue in a consolidated ruling. The minors, by and through their attorney and guardian ad litem, appeal from the orders of protection entered by the trial court and from the court’s denial of the motions for change of venue.

The record reveals that the Illinois Department of Children and Family Services (DCFS) caused petitions for adjudication of wardship to be filed in the interest of Stacy, Eric, and Juliann E. on March 20, 1990. Similar petitions were filed in the interest of Dominique F. and Anthony B. on March 30, 1990, and in the interest of Ricky F. on March 26, 1990. The petitions alleged that each of the minors was abused, neglected, and/or dependent.

The trial judge appointed Patrick T. Murphy, the public guardian of Cook County, as attorney and guardian ad litem for each of the minors. Murphy, through one of his assistants, accepted the appointments and immediately petitioned the court for a change of venue (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1001(a)(2)). The petitions for change of venue alleged that the minors would not receive a fair trial because the trial judge was prejudiced against Murphy and requested that each case be transferred to a different juvenile court judge. The assistant public guardian before the court stated that she intended to file a motion for change of venue in every sex and physical abuse case assigned to that trial judge.

Although the assistant public guardian requested an immediate ruling on the petitions in all but one of the cases, the trial court entered and continued the petitions for a subsequent ruling. The court then proceeded to address the merits of each of the cases, returning the minors to their parents or guardians under an order of protection (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 25).

The trial court ultimately denied the petitions for change of venue in a consolidated ruling entered on April 27, 1990, finding that because its appointment of a guardian ad litem constituted a substantive order, the petitions were untimely. Noting that the public guardian had filed 55 similar petitions between August and October 1988 and had filed dozens more between October and December 1988, the court concluded that the petitions had not been filed in good faith and that the conduct of the public guardian was an abuse of legal procedure. Although he was aware that these arguments had been considered and rejected in In re Darnell J. (1989), 196 Ill. App. 3d 510, 554 N.E.2d 313, the trial judge declined to follow that decision because he believed it was decided incorrectly. Accordingly, the trial court denied the petitions for change of venue and upheld his prior orders of protection.

Murphy appeals on behalf of the minors, contending that the trial court erred in denying their petitions for a change of venue.

The Code of Civil Procedure provides that a change of venue may be had in any civil action where a party or his or her attorney fears that he or she will not receive a fair trial in the court in which the action is pending because the judge is prejudiced against that party or attorney. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1001(a)(2).

The right to a change of venue is absolute where a motion alleging prejudice of the judge is filed before trial or hearing and before the judge presiding in the case has made any substantial ruling (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 1001(a), (c); In re Marriage of Kozloff (1984), 101 Ill. 2d 526, 530, 463 N.E.2d 719, 721; County of Du Page v. E & E Hauling, Inc. (1977), 67 Ill. 2d 390, 391, 368 N.E.2d 110), and a trial judge has no discretion to deny a petition which is in proper form and is in compliance with the statute (County of Du Page, 67 Ill. 2d at 391, 368 N.E.2d at 110; In re Darnell J. (1990), 196 Ill. App. 3d 510, 513, 554 N.E.2d 313, 315; In re Marriage of Betts (1987), 155 Ill. App. 3d 85, 96, 507 N.E.2d 912, 919). Venue provisions are to be liberally construed in order to effect rather than defeat a change of venue, particularly when prejudice of the judge is charged. Rosewood Corp. v. Transamerica Insurance Co. (1974), 57 Ill. 2d 247, 251, 311 N.E.2d 673, 675; In re Marriage of Birt (1987), 157 Ill. App. 3d 363, 366, 510 N.E.2d 559, 562; Heman v. Jefferson (1985), 136 Ill. App. 3d 745, 750, 483 N.E.2d 537, 542; Oberman v. Byrne (1982), 104 Ill. App. 3d 1046, 1048, 433 N.E.2d 1024, 1026.

It is undisputed that the petitions at issue here were in the proper form and were timely filed. The record reveals that the petitions for change of venue complied with the technical requirements of the statute and were filed immediately after the appointment of the public guardian as attorney and guardian ad litem for the minors, prior to any other action or ruling in each case. Thus, the petitions were filed at the earliest practical moment (Wagner v. David (1966), 35 Ill. 2d 494, 498, 221 N.E.2d 248, 250; In re Marriage of Birt, 157 Ill. App. 3d at 366, 510 N.E.2d at 562; Heman, 136 Ill. App. 3d at 750, 483 N.E.2d at 542).

Contrary to the trial court’s finding, the appointment of a guardian ad litem in this case cannot be construed as a substantive ruling because such an appointment was required under the Act (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 17(2)(c)). (See In re Darnell J., 196 Ill. App. 3d at 513, 554 N.E.2d at 315 (appointment of guardian ad litem was not an order of substance); Delta Oil Co. v. Arnold (1978), 66 Ill. App. 3d 375, 380-81, 384 N.E.2d 25, 29 (denial of motion for severance was not an order of substance where court was required to deny the motion).) Indeed, the State does not assert in its brief that the petitions were untimely because the court had previously ruled on a substantive issue.

Rather, the State contends that the change of venue provision in the Code of Civil Procedure does not automatically apply in juvenile proceedings and asserts that the trial judge properly exercised his discretion in denying the petitions. This argument is without merit.

It has previously been held that the Illinois Code of Civil Procedure applies to juvenile proceedings when the minor’s liberty is not at issue and when no other section specifically regulates the procedure in question. (In re Darnell J., 196 Ill. App. 3d at 513, 554 N.E.2d at 315; Ill. Ann. Stat., ch. 110, par. 1 — 108, Historical and Practice Notes, at 38-39 (Smith-Hurd 1983).) The Act does not preempt the change of venue provision, and because abuse and neglect proceedings do not involve a minor’s liberty, they are appropriately considered “civil” proceedings. In re Urbasek (1967), 38 Ill. 2d 535, 543, 232 N.E.2d 716, 720; In re Darnell J., 196 Ill. App. 3d at 513, 554 N.E.2d at 315. See also In re Christenberry (1979), 69 Ill. App. 3d 565, 387 N.E.2d 923 (civil rules apply to post-trial motions); In re Harpman (1985), 134 Ill. App. 3d 393, 480 N.E.2d 873 (civil rules apply to pleading standards); People v. Davis (1973), 11 Ill. App. 3d 775, 298 N.E.2d 350 (civil rules apply to testimony of adverse witnesses).

The State also contends that even if the venue provisions of the Code of Civil Procedure apply to abuse and neglect proceedings, the trial court properly denied the motions because they were filed in bad faith and amounted to an abuse of legal procedure. The cases relied upon by the State in support of this contention involve the filing of motions for change of venue to avoid or delay trial (People v. Williams (1988), 124 Ill. 2d 300, 529 N.E.2d 558; Hoffmann v. Hoffmann (1968), 40 Ill. 2d 344, 239 N.E.2d 795; People v. Beamon (1962), 24 Ill. 2d 562, 182 N.E.2d 698; People v. Stewart (1960), 20 Ill. 2d 387, 169 N.E.2d 796). Therefore, those cases are factually distinguishable from the cases at bar and are not controlling here.

It should be noted that although the public guardian serves at the pleasure of the chief judge of the circuit court of Cook County (Ill. Rev. Stat. 1989, ch. llQVz, par. 13 — 1.1), once he is appointed to represent the interests of a minor, he stands in the same position as any other attorney before the court and enjoys no special status by virtue of his role as public guardian. Consequently, he is entitled and obligated to pursue all avenues which serve or protect the best interests of his client, including the filing of a motion for change of venue. Although such a motion should be brought only where warranted by the facts of each individual case, and the automatic filing of such a motion in every case assigned to a particular judge is not a recommended practice and is not to be condoned, it does not appear that the conduct of the public guardian was an abuse of legal procedure.

We note further that although he was aware of the decision in In re Darnell J., the trial judge chose to disregard this precedent because he believed it was decided incorrectly. Trial judges are bound to follow case precedent, and for that reason we find that the trial court’s failure to do so was error. We hold that the trial court improperly denied the motions for change of venue in the instant cases.

Generally, properly filed motions should be heard and disposed of in the order in which they are filed. (People v. Chestnut (1973), 15 Ill. App. 3d 188, 190, 303 N.E.2d 440, 441; 60 C.J.S. Motions & Orders §37(3) (1969).) Where a timely petition for change of venue is in proper form and proper notice thereof has been given, it must be granted, and any order entered after its presentation is a nullity. (Stickler v. McCarthy (1965), 64 Ill. App. 2d 1, 19, 212 N.E.2d 723, 732, aff’d in part & rev’d in part on other grounds (1967), 37 Ill. 2d 48, 224 N.E.2d 827.) Therefore, the motions for change of venue should have been decided by the court prior to the entry of the protective orders.

For the foregoing reasons, the orders denying the motions for change of venue are reversed, the protective orders are vacated, and the causes are remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

McNAMARA and RAKOWSKI, JJ., concur.


author: PRESIDING JUSTICE McMORROW

text:
      In re B.T. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Tony Thornton et al., Respondents-Appellees (B.T. et al., Minors, Appellants)).
    First District (4th Division)
    Nos. 1 — 89—0998 through 1 — 89—1000 cons.
    Opinion filed September 28, 1990.
    Patrick T. Murphy, Public Guardian, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago, for the People.
    Randolph N. Stone, Public Defender, of Chicago, for other appellees.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Petitions for the adjudication of wardship were filed in the circuit court alleging in pertinent part that respondent-mother (hereinafter respondent) had neglected her minor children, B.T., A.T., and T.T., in that the respondent had failed to provide the care necessary for the minors well-being and had provided the minors an environment injurious to their welfare (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 3). After an adjudicatory hearing, the court found that the State had failed to establish that the respondent had neglected the minors. Based upon this finding, the trial court dismissed the wardship petitions and vacated the order which had placed the minors in the temporary custody of the Department of Children and Family Services (DCFS). Through their guardian ad litem, the minors appeal from the trial court’s ruling and argue that the court’s decision was against the manifest weight of the evidence. We conclude that the State’s evidence proved respondent had neglected the minors by failing to provide the care necessary for their well-being. As a result, we reverse and remand.

The record shows that the minors were, respectively, five years, two years, and eight months of age when the wardship petitions were filed. The minors were placed in the temporary custody of the DCFS, and a guardian ad litem was appointed to represent them. At the trial court’s adjudicatory hearing on the wardship petitions, the respondent appeared and was represented by appointed counsel. Respondent-father did not appear, and a default judgment was entered against him.

Clara Bualice, the maternal grandmother of the minors, testified on behalf of the State. She stated that she received a telephone call at approximately 6:15 p.m. on November 4, 1988, that caused her to go to her cousins’ apartment. At the apartment, Ms. Bualice found that her cousins, then 17 and 10 years of age, were caring for the minors. When Ms. Bualice asked B.T. the whereabouts of his mother, he told her that he did not know. Ms. Bualice then took her grandchildren home with her. Respondent contacted Ms. Bualice two days later when she arrived at Ms. Bualice’s home early in the morning as Ms. Bualice was preparing for work. When Ms. Bualice asked where she had been, respondent told her that she needed some air.

Ms. Bualice testified that she had cared for the minors many times in the past. She specifically recalled instances when respondent abruptly left their shared household in the middle of the night without saying where she was going and stayed away for periods of three days to three weeks at a time. During these absences, respondent made no prior arrangements with Ms. Bualice to care for the children. In addition, respondent did not telephone during her absences, and Ms. Bualice had no way of contacting respondent when she was gone. Ms. Bualice'believed that her daughter had a drinking problem and had seen her intoxicated several times a week when they were living together. With the exception of food stamps, which respondent shared with Ms. Bualice, respondent failed to provide any additional financial support for her children.

During cross-examination, Ms. Bualice acknowledged that she voluntarily participated in the care of the children when she shared the same household with respondent. Ms. Bualice further stated that she did not anticipate or expect her daughter to leave the children with her without prior notice or agreement. Ms. Bualice acknowledged that her cousin also has children.

At the close of the State’s evidence, the court granted respondent’s motion for a directed finding on the allegation of neglect based on injurious environment. However, the trial court denied the respondent’s motion for a directed finding with respect to the State’s allegation of neglect based on lack of necessary care.

Respondent testified on her own behalf. Although she admitted that she had not prearranged with her mother to care for her children during her absences, she observed that her mother did care for them while she was away. Respondent also stated that she gave her mother food stamps for groceries when they were living together and that she stayed home and cared for her children while her mother went to work.

Respondent testified that when the petitions were filed in November 1988, she was no longer living with her mother, but had an apartment near her cousin. Respondent stated that she was providing food, shelter and care for the children through public aid. She further stated that her cousin has two children, and that she and her cousin had arranged to care for each other’s children several times a month. During cross-examination she again admitted that she had no prior agreement whereby her mother would care for her children during her absences. However, respondent stated that her mother never objected when respondent left the children with her, and respondent thought it was all right for her to do so.

At the close of evidence and argument, the court observed that it was a “somewhat difficult case” and a “somewhat marginal case.” The court noted the evidence was uncontradicted that the children had been well cared for in the absence of either respondent or Ms. Bualice. The court also observed that respondent had been “extremely inconsiderate” in leaving at night without informing the grandmother, and in staying away for long periods of time without contacting them. Regarding the November 4 incident, the court determined that the evidence was insufficient to prove neglect. The court reasoned that although respondent had demonstrated irresponsible behavior, she had left the minors with a cousin. Based upon these findings, the trial court dismissed the petitions for adjudication of wardship and vacated the temporary custody order. In this appeal, the minors, through their guardian ad litem, contest the propriety of the court’s decision and request that it be reversed.

The Juvenile Court Act of 1987 (the Act) provides in pertinent part that a neglected minor includes a person under 18 years of age “whose parent *** does not provide the proper or necessary support *** or other care necessary for his or her well-being *** or who is abandoned by his or her parents.” (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 3(l)(a).) In general, “neglect” is considered to be the failure to exercise the care that circumstances justly demand and encompasses both willful and unintentional disregard of parental duty. (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 104 N.E.2d 769.) The term is not one of fixed and measured meaning and takes its content from the specific circumstances of each case. (In re Stilley (1977), 66 Ill. 2d 515, 363 N.E.2d 820.) Proceedings for adjudication of wardship, like all proceedings under the Act, are brought only in the best interests of the children involved (People v. McDonald (1989), 189 Ill. App. 3d 374, 545 N.E.2d 819) and are, in effect, sui generis. (In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872.) The State has the burden of proving the neglect alleged in a wardship petition by a preponderance of the evidence (In re Aaronson (1978), 65 Ill. App. 3d 729, 382 N.E.2d 853), and the trial court determines whether the State has satisfied that burden. (In re B.K. (1984), 121 Ill. App. 3d 662, 460 N.E.2d 43.) The trial court’s determination will be disturbed on appeal if the court’s decision is against the manifest weight of the evidence. In re Stilley (1977), 66 Ill. 2d 515, 363 N.E.2d 820.

Based upon our review of the record, we conclude that the State’s evidence was sufficient to prove that respondent neglected her minor children by failing to provide the proper support and care necessary for their well-being. The testimony of Ms. Bualice revealed numerous instances of irresponsible conduct by respondent in abruptly leaving the household without providing for the care of the minors. The evidence showed that respondent was absent for days or weeks at a time, and did not contact the children or make her whereabouts known to them or her mother. The record also reflects that respondent made no arrangements with Ms. Bualice to care for the minors during respondent’s absences and provided little financial support to the children. The testimony further indicated that respondent repeated her prior irresponsible behavior in November 1988, when respondent’s mother cared for the children for two additional days while respondent absented herself to get “some air.” In our view, this evidence was sufficient to prove the State’s allegation that respondent neglected the minors by failing to provide the care and support necessary for their welfare.

The trial court’s oral pronouncements indicate that the court found significant the fact that no physical harm had befallen the children during respondent’s absences. However, we do not believe that the fortuitous lack of physical injury to the minors serves to negate the evidence of neglect apparent in respondent’s dereliction of duty to her children. Neglect based on lack of necessary care was proven, although the physical needs of the children were being met by others, in the cases of In re Stilley (1977), 66 Ill. 2d 515, 363 N.E.2d 820, and In re Ritchie (1978), 58 Ill. App. 3d 1045, 374 N.E.2d 1292. These cases were decided before the 1982 amendment to the Act, and the language of the present statute seems to incorporate the reasoning expressed in Stilley and Ritchie insofar as it focuses on parental neglect in providing the care necessary for the minor’s well-being. The trial court’s reasoning in the instant cause appears to be more consistent with that expressed in In re Gates (1978), 57 Ill. App. 3d 844, 373 N.E.2d 568, which was decided before the enactment of the present statute, and in our judgment does not comport with the present codification.

The cases cited by respondent on appeal do not conflict with our conclusion. In re Custody of Menconi (1983), 177 Ill. App. 3d 394, 453 N.E.2d 835, is inapposite to the instant cause, as the sole question presented in Menconi was whether grandparents had standing to file a custody petition under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 601(b)(2)). In re Harpman (1985), 134 Ill. App. 3d 393, 480 N.E.2d 873, and In re Nyce (1971), 131 Ill. App. 2d 481, 268 N.E.2d 233, are distinguishable on their facts. (See In re A.D.R. (1989), 186 Ill. App. 3d 386, 542 N.E.2d 487.) In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872, involved neglect petitions based on allegations of injurious environment, which is not at issue here.

For these reasons, the judgments of the circuit court are reversed, and the causes remanded for further proceedings consistent herewith.

Reversed and remanded.

JOHNSON and LINN, JJ., concur.


author: JUSTICE JOHNSON JUSTICE JIGANTI,

text:
      In re MARRIAGE OF MARILYN TREACY, n/k/a Marilyn Baxter, and JOHN J. TREACY (Marilyn Treacy, n/k/a Marilyn Baxter, Plaintiff-Appellant, v. Estate of John J. Treacy, Deceased, et al., Defendants-Appellees).
    First District (4th Division)
    No. 1 — 89—3104
    Opinion filed September 28, 1990.

      JIGANTI, J., dissenting.
    Owen L. Doss, James M. Forkins, and Joseph D. Keenan III, all of Doss, Puchalski & Keenan, of Chicago, for appellant.
    Maureen A. McGuire and Robert J. Hourigan, both of Gorham, Metge, Bowman & Hourigan, of Chicago, for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Marilyn Treacy, plaintiff, brings this appeal from an order of the circuit court of Cook County granting the summary judgment motion of defendants, the estate of John J. Treacy and its executor, Robert J. Hourigan. The trial court found that as a matter of law defendants were under no obligation to contribute to the college expenses of plaintiff’s daughter, Anne Treacy, pursuant to sections 510(d) and 513 of the Illinois Marriage and Dissolution of Marriage Act (hereinafter Act) (Ill. Rev. Stat. 1989, ch. 40, pars. 510(d), 513).

The sole issue presented for review is whether, under section 510(d) and section 513 of the Act, the Illinois General Assembly has empowered the circuit court to enter an order against the estate of a noncustodial deceased parent for the payment of college expenses of a nonminor child when there was no such previous obligation imposed upon the parent to be charged prior to his death.

We affirm.

Plaintiff and John J. Treacy were married on June 25, 1968. One child, Anne Treacy, was born of the marriage on March 14, 1970. On May 26, 1976, a judgment for divorce was entered. A settlement agreement was incorporated into the dissolution judgment. Plaintiff was awarded custody of Anne, and Treacy was ordered to pay child support in the amount of $225 a month. The judgment, however, did not have a provision for the payment of Anne’s college expenses.

Anne graduated from high school in June 1988, the time at which her child support payments under the judgment were to cease. Treacy died on July 4, 1988. In August 1988, Anne entered college. Plaintiff and Anne brought a petition seeking back payments of child support and contribution toward the payment of Anne’s college expenses against Treacy’s estate. Prior to this petition, plaintiff had not sought to modify the original judgment order so as to provide for the payment of Anne’s college expenses.

On August 25, 1989, defendants filed a motion for summary judgment on grounds that neither plaintiff nor Anne was entitled, under the dissolution judgment, to contribution to payment of Anne’s college expenses from the Treacy estate since there was no existing obligation to pay such expenses at Treacy’s death.

On October 24, 1989, the trial court granted defendants’ summary judgment motion in part, finding that plaintiff was not entitled to contribution from the estate for Anne’s college expenses. The court held that sections 510(d) and 513 of the Act do not apply unless the parent to be charged was obligated at the time of his death. Anne’s claim was dismissed, as she lacked standing. However, the court found that plaintiff was entitled to back support. Plaintiff only appeals that portion of the decision which denied her claim for college expenses.

Plaintiff argues that sections 510(d) and 513 of the Act clearly permit the filing of a claim for college expenses of a non-minor child against the child’s deceased parent. Section 510(d) provides:

“Unless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child, except as otherwise provided herein, but not by the death of a parent obligated to support the child. When a parent obligated to pay support dies, the amount of support may be modified, revoked or commuted to a lump sum payment, to the extent just and appropriate in the circumstances, and such determination may be provided for at the time of the dissolution of the marriage or thereafter.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 40, par. 510(d).)

Section 513 provides, in pertinent part:

“The Court also may make such provision for the education and maintenance of the child or children, whether of minor or majority age, out of the property and income of either or both of its parents as equity may require, whether application is made therefor before or after such child has, or children have, attained majority age. *** In making such awards, the court shall consider all relevant factors which shall appear reasonable and necessary, including:
(a) The financial resources of both parents.
(b) The standard of living the child would have enjoyed had the marriage not been dissolved.
(c) The financial resources of the child.” Ill. Rev. Stat. 1989, ch. 40, par. 513.

The fundamental principle of statutory construction is to give effect to the intent of the legislature. (Carson Pirie Scott & Co. v. Illinois Department of Employment Security (1989), 131 Ill. 2d 23, 34.) The intent of the legislature in enacting section 510(d) was to “protect the dependent child of divorced parents from loss *** through disinheritance, a loss from which a child of nondivorced parents is indirectly insulated. A divorced parent is still free to disinherit a child of his divorced marriage, subject only to the limited obligation of support. In balance, section 510[d] mitigates rather than aggravates inequality.” Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 581.

We note that, at the time Kujawinski was written, section 510(d) was designated as section 510(c). However, as plaintiff points out, when section 510 was amended, in 1988, section 510(c) was re-designated as section 510(d). The language of the section, however, remained the same. Prior to the enactment of this section, a child support order in a divorce judgment had no legal effect after the death of one of the parties. The section now provides that the obligation to support survives the death of the parent charged. In re Estate of Champagne (1987), 153 Ill. App. 3d 560, 562.

The legislative intent of section 513 was to furnish a means to provide for the education of children of divorced parents. (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 580.) However, the imposition of a section 513 order for educational expenses is within the sound discretion of the trial court; the section does not mandate that divorced parents must in all cases provide their children with funds for post-high school education. In re Support of Pearson (1986), 111 Ill. 2d 545, 551.

In light of the legislative intent of these statutory sections, the court in In re Estate of Champagne (1987), 153 Ill. App. 3d 560, held that “an order under section 513 of the Act for education *** of a child, whether of minor or majority age, is intended to be included within section 510[d] the same as a support order and is not terminated by the death of a parent obligated to pay for these expenses.” (Champagne, 153 Ill. App. 3d at 564.) The court interpreted the language in section 510(d) “except as otherwise provided herein” as referring to section 513. Champagne, 153 Ill. App. 3d at 563.

Although we agree with the holding in Champagne, we are not persuaded that this holding would extend to situations, such as the instant case, where there was no prior order mandating the payment of the child’s college expenses. The facts in Champagne are distinguishable in that there was an agreed order and stipulation in existence prior to the charged party’s death. In fact, the court held that “[iff there is a valid order for educational expenses at the time of the payor spouse’s death, under 510[d] the support may be modified, revoked or commuted to a lump sum payment.” (Emphasis added.) (Champagne, 153 Ill. App. 3d at 564.) Champagne, therefore, is inapposite.

Plaintiff argues that the trial court ignored the fact that the initial divorce judgment was still in existence after Anne’s emancipation. She reasons that the mere existence of a general provision for child support in the initial judgment satisfies the trial court’s requirement of a preexisting obligation to pay for college expenses. A general provision for support, however, does not imply that college expenses must be included.

In construing a dissolution judgment, the normal rules for contract construction apply. The provisions in the judgment must be interpreted so as to give effect to the parties’ intentions. The court will determine these intentions solely from the instrument. (In re Marriage of Holderrieth (1989), 181 Ill. App. 3d 199, 202.) We find that based on the language in the judgment we cannot infer that a provision for college expenses was intended to be included by the parties.

Moreover, plaintiff’s contention that section 513 in and of itself mandates the imposition of educational expenses, regardless of whether such provision is contained within the initial divorce judgment, is also without merit. The section does not mandate the imposition of educational expenses; the imposition of these expenses is solely within the discretion of the trial court. In re Estate of Pearson (1986), 111 Ill. 2d 545, 551; Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 580.

We find that the settlement agreement as incorporated in the judgment for dissolution controls the disposition of the instant case. The court in In re Marriage of Houston (1986), 150 Ill. App. 3d 608, also held that the settlement agreement rather than section 513 was controlling:

“We believe that respondent’s reliance on section 513 is misplaced. That provision deals, in relevant part, with court-awarded payments for the education and maintenance of the parties’ children *** after a marriage has been dissolved. *** This case, however, does not involve an initial award of payments for educational expenses made by the court at the time of dissolution or in a post-decree motion [citation], or even a request for modification of such an award. Nor is this a situation where the original dissolution decree reserved the question of educational expenses for future consideration.” Houston, 150 Ill. App. 3d at 613-14.

Similarly, the instant case does not involve an initial award for payment of college expenses or the modification of such an award. Nor is this a situation where the question of educational expenses was reserved for future consideration. The Houston court went on to find that if it were to ignore the parties’ settlement agreement as incorporated into the divorce judgment, it would convert every proceeding under section 502 (Ill. Rev. Stat. 1989, ch. 40, par. 502), the statutory section which governs separation agreements, into a de novo review of the settlement agreement. The statutory section would be rendered a nullity. (Houston, 150 Ill. App. 3d at 614; see also In re Marriage of Holderrieth (1989), 181 Ill. App. 3d 199, 207.) We have found few cases in which the court has considered application for educational expenses pursuant to section 513 where no provision for such expenses was included in the settlement agreement. (See Wait v. Wait (1987), 158 Ill. App. 3d 271; Potocki v. Potocki (1981), 98 Ill. App. 3d 501.) The circumstances of the instant case, however, are distinguishable in that a section 513 application was not made during Treacy’s lifetime. No petition was ever filed in the domestic relations court concerning educational expenses while Treacy was alive. This issue was raised in the form of a claim only after Treacy’s death.

Plaintiff further argues that pursuant to In re Marriage of Albiani (1987), 159 Ill. App. 3d 519, the appropriate time for seeking payment of college expenses does not arise until after the child has actually entered college and has incurred such expenses. Plaintiff contends that a “window of vulnerability” would exist between the time the minor is emancipated and the time the minor enrolls in college should this court allow the trial court’s decision to stand. She reasons that if, pursuant to Albiani, the time for bringing a section 513 petition for college expenses is after a child has enrolled in college, the child would be precluded from receiving contribution from the parent to be charged if that parent dies before a section 513 petition is brought. We disagree.

The Albiani court did not hold that the only time for seeking payment of college or educational expenses is when the child has actually enrolled in the institution and incurred expenses. The court held, inter alia, that the trial court did not abuse its discretion in deferring adjudication of which party was to have the ultimate responsibility of paying the educational expenses of one of their children. The question of educational expenses was merely reserved for future consideration, as the court retains continuing jurisdiction to decide this matter if the parties are unable to reach an agreement. (Albiani, 159 Ill. App. 3d at 527.) Plaintiff’s interpretation of the Albiani holding is simply incorrect.

There has been some concern as to whether the fortuity of the instant case or like situations — that being the failure to bring a section 513 petition for the educational expenses of an emancipated child prior to the death of a parent — would lead to inequitable results. It is not, however, the timing or fortuity of Treacy’s death that foreclosed contribution from the estate but, as the trial court found, it is the lack of any court order imposing contribution to Anne’s college expenses prior to Treacy’s death. As previously held, we cannot infer an obligation for the payment of college expenses based on a general support provision in the judgment for dissolution, nor do we find that sections 510(d) and 513 authorize the imposition of this new obligation under the circumstances of this case.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

LINN, J., concurs.

JUSTICE JIGANTI,

dissenting:

I respectfully dissent. When read together, sections 510(d) and 513 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, pars. 510(d), 513) authorize the court to enter an order against a deceased parent’s estate for the payment of college expenses of an emancipated child.

Section 510 of the Illinois Marriage and Dissolution of Marriage Act governs the modification and termination of provisions for maintenance, support and property disposition. Under section 510(d), “[wjhen a parent obligated to pay support dies, the amount of support may be modified, revoked or commuted to a lump sum payment.” (Ill. Rev. Stat. 1989, ch. 40, par. 510(d).) I do not believe that the legislature intended the term “obligated” to mean currently obligated, or obligated under an existing court order. There is no rationale for such an interpretation which could produce harsh and artificial results. For example, a parent may be under no current obligation to pay support because of illness, unemployment, or simply failure of personal service. If the parent then dies, under the majority’s interpretation, the child cannot assert a claim for support against the parent’s estate. The fortuitous death of the parent controls the court’s disposition, and the child is severely prejudiced. Such a result is not in harmony with the legislature’s intent to mitigate the harm to children as a result of divorce. To the contrary, according to the court’s interpretation in Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 376 N.E.2d 1382, the tenor of section 510(d) is that the death of the parent should not prejudice the child.

Section 513 of the Illinois Marriage and Dissolution of Marriage Act governs support for nonminor children and educational expenses. (Ill. Rev. Stat. 1989, ch. 40, par. 513.) Under section 513, the court, as equity requires, may make provisions for the education of either minor or emancipated children. Application for educational support may be made before or after such child has obtained majority age. (Ill. Rev. Stat. 1989, ch. 40, par. 513.) Application pursuant to section 513 is considered to be a modification of the divorce decree, regardless of whether the decree contains any provision requiring either parent to contribute to the child’s college education. (Wait v. Wait (1987), 158 Ill. App. 3d 271, 510 N.E.2d 600.) The court retains jurisdiction to modify a divorce decree as changing circumstances warrant. (In re Marriage of Albiani (1987), 159 Ill. App. 3d 519, 512 N.E.2d 30.) Under the general provisions outlined above, there is no question that notwithstanding the absence of any such provision in the original divorce decree, an emancipated child has a right to assert a claim for college expenses against a living parent. (Wait v. Wait, 158 Ill. App. 3d 271, 510 N.E.2d 600.) I do not believe that the legislature intended a fortuitous circumstance, such as the death of the parent, to sever the child’s entitlement to assert a claim.

In conclusion, section 510(d) provides in part that “provisions for the support of a child are terminated by emancipation of the child, except as otherwise provided herein, but not by the death of a parent obligated to support the child.” (Ill. Rev. Stat. 1989, ch. 40, par. 510(d).) The statutory language “or otherwise provided herein” refers to section 513. (In re Estate of Champagne (1987), 153 Ill. App. 3d 560, 505 N.E.2d 1352.) When read together, the two statutes provide that the parent’s obligation to support a child and any obligation to pay for educational expenses that may arise under section 513 are not terminated by the death of the parent. When so interpreted the statutes provide, as they were intended to, that children of divorced parents are protected from loss through disinheritance of support and educational opportunities.


author: JUSTICE HARTMAN

text:
      In re ESTATE OF MICHAEL L. OLENICK, Deceased.
    First District (2nd Division)
    No. 1 — 89—1589
    Opinion filed September 28, 1990.

      Schiller, Du Canto & Fleck, Ltd., of Chicago (Sarane C. Siewerth, of counsel), for appellant.
    Charles Kraut, Ltd., of Chicago (Samuel J. Cahman, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Sharran Greenberg (Greenberg) appeals from a summary judgment vacating the prior heirship order declaring her to be her brother Michael L. Olenick’s (decedent’s) sole heir, and naming Korin Matthew Olenick (Korin) as his sole heir at law instead. The issues presented on review are whether (1) the circuit court’s refusal to compel decedent’s cohabitant, Elizabeth Krusinga (Krusinga), and Korin, her son, to submit to blood tests was reversible error; and (2) an issue of fact existed as to the biological relationship between decedent and Korin, precluding entry of summary judgment.

On February 28, 1989, decedent died intestate at the age of 43. Pursuant to her petition for letters of administration, Greenberg was named administrator of his estate. Greenberg’s affidavit of heirship stated that decedent died leaving no surviving spouse or surviving natural or adopted descendants, and that she was decedent’s sole surviving heir at law. Decedent’s estate consisted of approximately $25,000 of personal property, and $100,000 of real property, which included a house in Lincolnwood, Illinois. On March 1, 1989, the circuit court entered an order declaring Greenberg the sole heir of decedent.

On March 15, 1989, Krusinga moved to vacate the heirship finding and for a new finding of heirship, claiming that her son Korin was decedent’s sole surviving heir at law. Krusinga also filed a petition to declare heirship, which represented the following: she began living with decedent in 1982; on the date of his death, she was living with him at the Lincolnwood home; during their cohabitation, Korin was bom to her and decedent on January 17, 1988, in Michigan; since Korin’s birth, they all lived as a “family unit,” and continued to do so until decedent’s death; and decedent acknowledged Korin as his natural son. Krusinga attached to the petition the following exhibits: an affidavit of parentage, signed by her and decedent and filed in a Michigan probate court, wherein each acknowledged natural parentage of Korin; a hospital birth record naming decedent as Korin’s father; Korin’s State of Michigan birth certificate naming decedent as father; and a copy of decedent’s obituary, naming him as the “loving father of Korin.”

Greenberg, as administrator, filed a petition requesting that the court compel Krusinga and Korin to submit blood samples for genetic testing to determine paternity. The petition, denied by the court, also suggested decedent was medically tested in 1973 and again in 1988, and found incapable of fathering a child.

Krusinga’s motion for summary judgment was based on her sworn heirship petition and claimed that decedent’s acknowledgment of paternity eliminated all questions of fact as to whether Korin was his sole heir at law under either Michigan or Illinois law. Krusinga attached three additional affidavits in which each affiant swore that decedent acknowledged and referred to Korin as his “son.”

Greenberg responded to the motion as administrator and submitted the affidavits of Dr. Israel Berger and Richard Padnos, as well as her own. Dr. Berger, a urologist, averred that his analysis of decedent’s semen in June of 1987 revealed that decedent’s semen motility was 0%, making conception of an ovum impossible; decedent’s previous history and the 1987 test demonstrated a long-standing, chronic infertility; it was medically impossible for decedent to father a child in June of 1987; and it was very unlikely and highly improbable that he could have fathered any child bom in January of 1988. Padnos, a family friend, asserted decedent knew he could not father a child, but “needed someone to come home to” and acknowledged Korin as his son so that he would have a family of his own. Greenberg stated that decedent and his former wife had been unable to conceive, and he “wanted desparately [sic] to be a father and have a family of his own and [that] this was undoubtedly his only opportunity to do so.” According to Greenberg, decedent put his name on Korin’s birth certificate because Krusinga agreed to let him name the child after his parents and so that the hospital bills would be covered by his insurance. Based on these affidavits, Greenberg suggested an issue of fact existed as to decedent’s biological relationship to Korin.

In reply, Krusinga reiterated her position that decedent’s acknowledgment of paternity was dispositive of the issue since neither Illinois nor Michigan law required proof that a deceased was the biological father before inheritance laws apply. Kursinga attached to the reply decedent’s application for insurance showing Korin as his “son” and beneficiary.

The circuit court, after argument, granted Krusinga’s motion for summary judgment, finding as a matter of law that decedent died leaving Korin, his son, as his sole survivor and heir at law. The court vacated its prior order of heirship and entered an amended order naming Korin as decedent’s heir. From this judgment, and the previous order denying her motion to compel the blood tests, Greenberg appeals.

I

Greenberg claims first that the circuit court erred, as a matter of law, by refusing to compel Krusinga and Korin to submit to blood tests. She reasons that a biological relationship between an illegitimate child and a putative father is a foundational concern when determining heir-ship, and concludes that denial of discovery into such a relationship constituted prejudicial, reversible error.

The descent and distribution of intestate estates to illegitimate persons is governed by section 2 — 2(h) of the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. IIOV2, par. 2 — 2(h)) (section 2 — 2(h)), which provides, in relevant part:

“If a decedent has acknowledged paternity of an illegitimate person or if during his lifetime or after his death a decedent has been adjudged to be the father of an illegitimate person, that person is heir of his father *** and of any person from whom his father might have inherited, if living ***. if during his lifetime the dece dent was adjudged to be the father of an illegitimate person by a court of competent jurisdiction, an authenticated copy of the judgment is sufficient proof of the paternity; but in all other cases paternity must be proved by clear and convincing evidence. A person who was illegitimate whose parents intermarry and who is acknowledged by the father as the father’s child is legitimate.” (Emphasis added.)

A motion to compel blood tests, considered part of the discovery process when paternity is at issue under section 2 — 2(h), is regulated by Supreme Court Rule 215 (107 Ill. 2d R. 215; In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 16, 398 N.E.2d 198) and invokes the circuit court’s broad discretion in its ruling. A court of review will not interfere absent an abuse of that discretion. (In re Estate of Ragen, 79 Ill. App. 3d at 16.) Section 2 — 2(h) does not mandate discovery into the biological relationship between a decedent and his alleged illegitimate heir. A statutory interpretation to that effect, as suggested by Greenberg, would divest the circuit court of its discretion in deciding whether to order blood tests.

In the instant case, the circuit court did not abuse its discretion by refusing to compel blood tests. In support of the petition to declare heirship and her corresponding motion for summary judgment, all before the court at the time of Greenberg’s motion, Krusinga attached the documents first described in the third paragraph of this opinion. Green-berg’s petition to compel blood tests simply asserted decedent was medically incapable of fathering a child; at that time, her petition was unsupported by affidavit or other evidence substantiating that allegation. In light of the information then before it, the circuit court did not abuse its discretion in refusing to order blood tests.

In a paternity case, although the blood type of the mother and child usually is of considerable importance (In re Estate of Ragen, 79 Ill. App. 3d at 16; Zavaleta v. Zavaleta (1976), 43 Ill. App. 3d 1017, 1021, 358 N.E.2d 13), blood test results are not conclusive proof. (See In re Estate of Lukas (1987), 155 Ill. App. 3d 512, 525, 508 N.E.2d 368, appeal denied (1987), 116 Ill. 2d 555.) Our affirmance of the circuit court’s denial of the blood test motion does not suggest that biological evidence is irrelevant, but recognizes the discretion vested in the circuit court and the information before it when Green-berg filed the petition. In order to find paternity at issue at this stage of the proceedings, the circuit court would have had to subordinate clear evidence of decedent’s paternity to Greenberg’s mere allegation of infertility. The denial of Greenberg’s motion must be affirmed.

II

Greenberg next contends an issue of fact existed as to the biological relationship between decedent and Korin, which precluded entry of summary judgment.

Summary judgment is a procedure available only where there is no genuine, triable issue of material fact; if the pleadings, affidavits, depositions or admissions show that such an issue exists, or reasonable persons may disagree upon inferences fairly drawn from uncontroverted facts, the motion must be denied and the resolution of such facts and inferences is to be made by the fact finder at trial, not by the court considering the motion. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294, 529 N.E.2d 552; Jackson Jordon, Inc. v. Leydig, Voit & Mayer (1990), 199 Ill. App. 3d 728, 735, 557 N.E.2d 525; La Salle National Bank v. Illinois Housing Development Authority (1986), 148 Ill. App. 3d 158, 161, 498 N.E.2d 697.) The same rules of construction apply, whether paternity or other issues are involved in the motion for summary judgment, as observed in In re Paternity of Smith (1989), 179 Ill. App. 3d 473, 476-77, 534 N.E.2d 669:

“Summary judgment is a drastic remedy (Yakupcin v. Baker (1980), 83 Ill. App. 3d 624, 627, 404 N.E.2d 869, 872), and the party’s right to summary judgment must be clear and free from doubt (Cimino v. Dill (1980), 92 Ill. App. 3d 345, 348, 415 N.E.2d 1272, 1274-75). ‘Summary judgment is recognized as a salutary procedure in the administration of justice [citation], but must be cautiously granted so that the respondent’s right to trial is not usurped in the presence of material evidentiary conflicting facts and inferences. The function of the procedure is to determine the existence or absence of triable issues of fact, not to try them.’ (Montes v. Hawkins (1984), 126 Ill. App. 3d 419, 423, 466 N.E.2d 1271, 1274.) In ruling upon a motion for summary judgment, the trial court has a duty to consider the entire record to determine whether a genuine issue of material fact exists. Hoel v. Crum & Forster Insurance Co. (1977), 51 Ill. App. 3d 624, 632, 366 N.E.2d 901, 907.”

As will presently appear, summary judgment was improvidently granted in the instant case, which must be reversed and the cause remanded for trial.

In Illinois, a legitimate child is presumed to be the natural, biological child of the husband of his mother at the time of his birth or conception. (Ill. Rev. Stat. 1989, ch. 40, par. 2505.) The marriage certificate of his mother and father underpins this biological relationship, and this presumption causes a child of that marriage to be considered a descendant for purposes of section 2 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. IIOV2, par. 2 — 1). Notwithstanding this presumption of natural parenthood, asserted fatherhood by the mother’s husband is made rebuttable by clear and convincing evidence under section 5 of the Parentage Act of 1984. (Ill. Rev. Stat. 1989, ch. 40, par. 2505(b).) Section 11 of the act sets forth guidelines for production of evidence relating to that issue. (Ill. Rev. Stat. 1989, ch. 40, par. 2511), and where evidence is adduced supporting a finding excluding paternity, the presumption of parentage is rebutted. In re Marriage of Tzoumas (1989), 187 Ill. App. 3d 723, 732, 543 N.E.2d 1093.

In the present case, the acknowledgement of parentage by decedent and supporting evidence seek to include, rather than exclude, decedent as Korin’s father. Does the fact that the affirmative of the issue is being controverted lend any greater force to the requisite clear and convincing evidence than the negative? No authority has been cited or found suggesting that such is the case.

The first question to be answered, then, is whether an acknowledgment of parentage under section 2 — 2(h) is conclusive evidence of paternity and, when properly executed, is irrebuttable as a matter of law, the position Krusinga takes and the circuit court upheld. If so, summary judgment was properly entered. If the acknowledgment is subject to the clear and convincing standard of proof, however, rather than standing' as conclusive proof of parentage, it is then subject to rebutting evidence. Section 2 — 2(h) itself, set forth in part I of this opinion, provides no express direction that the acknowledgment is to be deemed irrebuttable and there is no reason to so interpret the statute for two reasons: (1) section 2 — 2(h) appears to require application of the standard of clear and convincing evidence, which is subject to rebuttal, in cases other than court adjudications (see In re Estate of Hutchins (1984), 120 Ill. App. 3d 1084, 1089, 458 N.E.2d 1356); and (2) the legislature could have included the parental acknowledgment, along with the “authenticated copy of the judgment,” where “a decedent has been adjudged to be the father of an illegitimate person,” as “sufficient proof of the paternity” had it so desired, but did not do so. (See In re Estate of Orzoff (1983), 116 Ill. App. 3d 265, 452 N.E.2d 82.) Accordingly, we hold that although an appropriately authenticated acknowledgment of parentage constitutes clear and convincing evidence of paternity, where, as in the instant case, material countervailing evidence is submitted, all the evidence must be weighed by the trier of fact to determine whether, at the conclusion of the trial, the acknowledgment still stands as “proof which leaves no reasonable doubt in the mind of the trier of fact.” (In re Estate of Hutchins, 120 Ill. App. 3d at 1087.) The state of the record in this case demonstrates the existence of a genuine, triable material issue of fact which required resolution by trial, and the entry of summary judgment must be reversed. See Department of Revenue v. Heartland Investments, Inc. (1985), 106 Ill. 2d 19, 31, 476 N.E.2d 413.

Analogous situations in other cases support the foregoing conclusion. In In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 398 N.E.2d 198, an alleged father acknowledged paternity in writing. The circuit court found that those documents established paternity by a preponderance of the evidence. The appellate court reversed on the ground that the wrong standard of evidence had been applied, but refused to reevaluate the evidence under Supreme Court Rule 366 (107 Ill. 2d R. 366) to see whether it met the higher “clear and convincing” standard. Had written acknowledgment of paternity been as dispositive as Krusinga contends and as held by the circuit court in the case sub judice, no remand would have been necessary, since the appellate court could have entered any judgment that should have been given. (107 Ill. 2d R. 366(a)(5).) In Kennedy v. Kennedy (1981), 93 Ill. App. 3d 88, 416 N.E.2d 1188, the appellate court specifically refused to rule on the very issue presented here — whether a written acknowledgment of paternity is itself conclusive proof of paternity — on the ground that the acknowledgment plus other uncontradicted evidence that had been presented to the circuit court was sufficient to sustain a finding of paternity, thereby implicitly holding that other evidence is admissible. Summary judgment, therefore, would have been inappropriate. In In re Adoption of Weller (1977), 47 Ill. App. 3d 492, 362 N.E.2d 73, a divorced husband, named in the judgment of dissolution as the father of the children born during the marriage and who was then paying child support and enjoying visitation, had no standing to refuse consent to the adoption of the child by the ex-wife’s new husband because she presented sufficient proof demonstrating that he could not have possessed any biological relationship to the child. In In re Adoption of Weller, even the dissolution judgment, affirming the husband’s paternity, was not accorded the power that the court in the present case has granted to the parentage affidavit, and that court properly refused to perpetuate the fraud that the ex-husband was the child’s father. See also People ex rel. Walsh v. Kilbride (1974), 16 Ill. App. 3d 820, 306 N.E.2d 879 (in which an admission of paternity in writing and under oath was held to be of great weight, but not conclusive of the issue).

Krusinga seeks to justify the entry of summary judgment here by claiming that Illinois must grant full faith and credit (U.S. Const., art. IV, §1) to the Michigan affidavit of parentage, which in turn satisfies all statutory requirements for Korin to inherit. “Full faith and credit,” however, cannot defeat Illinois’ right to control ownership of real estate within Illinois. Further, the affidavit was not the result of “court action” in a sister State; the notarized document was merely recorded in the Michigan county probate judges’s office and no court action was required. Finally, the Supreme Court’s words in Trimble v. Gordon (1977), 430 U.S. 762, 772, n.14, 52 L. Ed. 2d 31, 41 n.14, 97 S. Ct. 1459, 1466 n.14, upon which Krusinga also relies, merely explain what forms of proof would not compromise a State’s interest, i.e., a prior adjudication or formal acknowledgment of paternity, and are simply examples of forms of proof that could meet equal protection standards if a State so chose.

To be further noted is the fact that the very language of the Michigan affidavit of parentage and other documents, and statements based upon it does not confer upon Korin a right to inherit should it be shown that there is no possibility of a biological relationship. Statutorily designated by the Michigan legislature as sufficient “[f]or all purposes of intestate succession” (Mich. Comp. Laws §700.111(1) (1989)), the official Michigan affidavit form begins by stating, “We affirm that we are the natural parents of_ ***.” (Emphasis added.) “Natural parents” means biological, or blood, as contrasted with adoptive. (See In re Estate of Cregar (1975), 30 Ill. App. 3d 798, 333 N.E.2d 540.) The affidavit of parentage has no legal effect unless it contains true affirmations; otherwise, the affiants are perpetrating a fraud on the court. (In re Adoption of Weller, 47 Ill. App. 3d at 496.) If decedent’s repeated oral acknowledgments of paternity were in fact lies, they cannot act to confer any legal rights on Korin should evidence of decedent’s sperm motility of 0% persuade the fact finder that he could not have been the natural parent of Korin.

Evidence that a biological relationship could not possibly exist between decedent and Korin would refute all acknowledgments and court orders, and decedent could not be regarded in law as Korin’s natural parent. (In re Adoption of Weller, 47 Ill. App. 3d 492.) The Illinois statute does not eliminate biological parenthood as the sole basis for the intestate succession of illegitimates; what it does is allow a court to accept secondary evidence of that relationship, particularly acknowledgments, until other evidence shows the acknowledgments to be untrue. In such a case, no court has the power to declare an illegitimate child heir to a man who could not possibly have been the child’s natural father. Whatever his motives, decedent’s desire to acknowledge his parenthood of Korin cannot serve to legitimize Korin without his having married Krusinga (see Ill. Rev. Stat. 1989, ch. llO1^, par. 2 — 2(h)), nor could it serve as a “backdoor” adoption (see Ill. Rev. Stat. 1989, ch. 40, par. 1501 et seq.), nor could it substitute for a will (see Ill. Rev. Stat. 1989, ch. llObk, par. 4 — 1 et. seq.). It also cannot be held to establish paternity as a matter of law for purposes of intestate succession, where proof of natural fatherhood has been rebutted effectively by evidence demonstrating an impossibility thereof.

Since this cause must be reversed and remanded, in consideration of the fact that the evidence of motility was not submitted until after the circuit court denied the request for a blood test, in the event that request is renewed, it should be reconsidered together with any other discovery as may be sought by parties. See In re Estate of Ragen, 79 Ill. App. 3d at 16.

For the aforesaid reasons, the judgment of the circuit court is affirmed in part, reversed in part and the cause is remanded for trial with directions.

Affirmed in part; reversed in part and remanded with directions.

DiVITO, P.J., and SCARIANO, J., concur.

      Greenberg, analogizing to section 11 of the Parentage Act of 1984 (Ill. Rev. Stat. 1989, ch. 40, par. 2511), governing blood tests, suggests that the circuit court’s discretion has been taken away by the legislature whenever parentage is at issue and a party requests a blood test. She argues that after a request, the court has no discretion and must order the mother, child, and alleged father to submit to appropriate tests. Nothing in the Probate Act makes the blood test provisions of the Parentage Act applicable to section 2 — 2(h). Even if deemed applicable, these provisions could result in a conflict between the statute and Rule 215 in which, on a procedural matter such as this, the supreme court rule would control. People ex rel. De Vos v. Laurin (1979), 73 Ill. App. 3d 219, 223-24, 391 N.E.2d 164; Zavaleta v. Zaveleta (1976), 43 Ill. App. 3d 1017, 1021, 358 N.E.2d 13.

      The affidavit of Dr. Berger, which detailed decedent’s long-standing, chronic infertility, was attached to Greenberg’s response to Krusinga’s motion for summary judgment. The response was filed May 23, 1989, 20 days after the circuit court order denying Greenberg’s motion to compel blood tests.