Do Not Assume: Illinois Court Upholds DNA Contempt Order Based on Familial Hearsay Rule

Similar to its federal counterpart, Illinois Rule of Evidence 804(b)(4)(A) provides an exception to the rule against hearsay for

A statement [by an unavailable declarant] concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated....

Rule 804(b)(4)(A) is most often invoked is cases involving disputed inheritances, as was the case in Kaull v. Kaull, 2014 IL App (2d) 130175 (Ill.App.2d 2014).

In Kaull,

Barbara B. Kaull passed away on March 16, 2011. Prior to her death, Barbara established the Barbara B. Kaull Trust, which stipulated that after her death the trust assets were to be divided "into separate shares equal in value, one for each then living child of mine and one for the decedents, collectively, of each deceased child of mine." Barbara had three children: Mary, Sarah, and Mark Kaull. Mary became trustee of the trust on April 13, 2011. Mark Kaull predeceased Barbara. There is no dispute that Mark James is Mark Kaull's son. At issue in this case is whether Mark James is Mark Kaull's only son.

If Mark James were Mark Kaull's only son, he was entitled to Mark Kaull's full share of the trust; if not, he had to share it with his siblings. Pursuant to Illinois Supreme Court Rule 215, the court ordered Mark James to submit to DNA testing in order to determine whether another individual -- Ryan D. Schrader -- was also the son of Mark Kaull. Kaull refused and was held in contempt of court. He thereafter appealed, claiming that there was no no "clear and persuasive evidence" to support the trial court's order for him to submit to DNA testing.

The Appellate Court of Illinois disagreed, noting that Kaull had made several statements indicating that he was Schrader's father and also submitted a note to the Texas Department of Human Services, stating

"I, Mark M. Kaull, am giving Elida Schrader $500 per month for the support of our son Ryan D. Schrader. Sincerely, Mark Kaull."

This caused the court to reject Mark James's argument, concluding that

although a movant's relevancy showing need not be based upon evidence that would be admissible at trial, the statements attributed to Mark Kaull, as well as his note to the Texas Department of Human Services wherein he claimed to be Ryan's father, fell under Illinois Rule of Evidence 804(b)(4).

-CM