Stockton v. Oldenburg

JUSTICE MYERSCOUGH, concurring in part and dissenting in part:

I concur on issues (1), (2), and (4). However, I respectfully dissent on issue (3). Lost wages related to pregnancy and delivery are recoverable under section 14(a)(1) of the Parentage Act.

“In an action brought within 2 years after a child’s birth, the judgment or order may direct either parent to pay the reasonable expenses incurred by. either parent related to the mother’s pregnancy and the delivery of the child.” (Emphasis added.) 750 ILCS 45/14(a)(l) (West Supp. 1997).

See also In re Grosfelt, 718 S.W.2d 670, 672 (Tenn. Ct. App. 1986) (mother’s lost income reimbursed); Edwards v. Sadusky, 4 Ohio App. 3d 297, 300 , 448 N.E.2d 506, 509 (1982) (award of maintenance for six-week absence from work due to pregnancy, childbirth, and postnatal recovery); In re Paternity Petition of Gladys C., 61 Misc. 2d 381, 383-84 , 305 N.Y.S.2d 69 , 72 (1969) (cost of therapeutic abortion can be awarded as “reasonable expense” in connection with pregnancy); Anonymous v. Anonymous, 48 Misc. 2d 794 , _, 265 N.Y.S.2d 827, 828 (1965) (necessary expenses in connection with confinement and recovery include psychiatric care); Burke v. Rivo, 406 Mass. 764, 767-68 , 551 N.E.2d 1, 3 (1990) (wrongful pregnancy actions permit recovery for medical expenses, pain and suffering, and loss of wages and services during pregnancy, delivery, and postnatal recovery); In re Adoption of Alyssa, 131 Misc. 2d 755, 756 , 501 N.Y.S.2d 595, 596 (1986) (expenses incidental to birth or pregnancy include rent, food, purchase of furniture, utilities, and other living expenses).

The recovery of lost wages in this limited context is not an award of maintenance but more in the nature of a payment of disability benefits. See, e.g., the State Universities Retirement System, where pregnancy and childbirth are considered a disability. 40 ILCS 5/15—150 (West 1996). Due to her pregnancy and delivery, Stacey was unable to work to earn money; she was disabled. In addition, under the Family and Medical Leave Act, an employee is entitled to a total of 12 administrative workweeks of leave for, among others, “birth of a son or daughter of the employee and in order to care for such son or daughter.” 5 U.S.C. § 6382 (a)(1)(A) (1994).

The plain language of the statute permits recovery of reasonable expenses related to the mother’s pregnancy and delivery from either parent. So if, in this case, the mother returned to work and the father stayed at home and cared for the newborn, the mother would be responsible for half of the father’s lost wages, as they were related to the pregnancy and delivery of the child. However, the mother in this case lost wages, not the father.

As a result of her pregnancy and delivery, Stacey lost wages for the time period she was unable to work. Not reimbursing her for those lost wages in effect penalizes her for the pregnancy and birth. During the time that she was unable to work, she still incurred her normal expenses—food, rent, utilities—while additionally she incurred medical expenses as a result of the pregnancy and birth. Requiring the father to be responsible for half of this loss is not unreasonable, and to require the mother to bear the entire loss is unreasonable. Moreover, nothing precludes the Department of Public Aid (Department) from collecting from the father payment of reasonable expenses related to pregnancy and delivery. Construing the paternity statute to include lost wages does not lead to an absurd result.

Nowhere in the Parentage Act does the legislature prohibit the award for income lost due to illness or disability related to pregnancy. In fact, the Parentage Act reflects the legislative public policy of preventing the unmarried mother and the child from becoming wards of the state. The court may not accept paternity settlements unless:

“[T]he court is satisfied that the best interests of the child and of the parties will be served by entry of an order incorporating the settlement, and if the court is satisfied that the financial security of the child is adequately provided for and that the child and its mother are not likely to become public charges.” (Emphasis added.) 750 ILCS 45/12.1 (West 1996).

Moreover, if the legislature wants to prohibit the reimbursement of lost wages, it does so quite effectively. For instance, in the Adoption Compensation Prohibition Act, the legislature clearly delineated reasonable living expenses and excluded lost wages:

“ ‘Reasonable living expenses’ means the reasonable costs of lodging, food, and clothing for the biological parents during the period of the biological mother’s pregnancy and for no more than 30 days after the birth of the child. The term does not include expenses for lost wages, gifts, educational expenses, or other similar expenses.” 720 ILCS 525/4.1(a) (West 1996).

The legislature did not so limit the recovery of expenses here. Requiring the father to pay these costs is in keeping with the public policy set forth in the Parentage Act. Moreover, the language in the statute is permissive. In fact, the trial court is not required to award any expenses. In this case, the trial court did not abuse its discretion. The trial court considered the relative income of the parties and split the costs of pregnancy and delivery, including the mother’s lost wages, in half.

The majority opinion is erroneous in its reasoning when it states that the Parentage Act does not allow the imposition of lost wages and that the Parentage Act expressly provides for enforcement through article X of the Code (305 ILCS 5/10—1 et seq. (West 1996)). 750 ILCS 45/14(g), (h) (West 1996). The Parentage Act’s only reference to the Code merely adds a 20% charge on past-due child support that is to be imposed in accordance with the Code and requires the trial court to include in its support order a provision requiring the father to notify the Department of new employers. The Code has no other bearing on the Parentage Act. The absence of any mention in the Code of a father reimbursing the Department for support to the mother is irrelevant to the interpretation of the Parentage Act. In fact, the Code likewise makes no mention of reimbursement for any other expenses relating to pregnancy and delivery, such as hospital bills, clearly recoverable under the Parentage Act. Therefore, the Code has no bearing on this issue. For these reasons I would affirm the trial court.