Applying the doctrine of promissory estoppel, as articulated in Section 90(1) of the Restatement (Second) of Contracts, the Illinois Appellate Court affirmed an order that granted Eric P. Jones Sr.’s 2018 petition to vacate a 2008 “voluntary acknowledgement of paternity,” or VAP, for Arrie Green’s newborn son, M.J. — although paternity testing in 2012 proved he wasn’t the child’s father, and the two-year deadline for challenging the voluntary acknowledgement of paternity as having been induced by fraud started running when he found out the truth.

Green sued for support in 2012. But she reportedly admitted in court that Jones wasn’t M.J.’s father. Genetic testing confirmed her testimony, and she dropped the case in 2013 after allegedly telling Jones “that she would no longer seek child support from him.”

Jones, who didn’t have an attorney, didn’t petition to have the 2008 VAP vacated until 2018, after the Illinois Department of Healthcare and Family Services — asserting Green’s rights — sued for child support stretching back to 2008.

A new round of testing confirmed there was zero chance Jones was M.J.’s father. As a result, a Cook County judge vacated the VAP in 2018.

On appeal, the department argued that the two-year deadline for challenging the VAP started running in 2012 when Green admitted Jones wasn’t M.J.’s father and the first paternity test confirmed her testimony.

Affirming, the 1st District explained that promissory estoppel supported the decision to vacate the VAP because it was reasonable to expect that Jones would rely on Green’s 2012 promise that she would no longer seek support from Jones and “injustice can be avoided only by enforcement of the promise.” Illinois Department of Healthcare and Family Services v. Jones, 2019 IL App (1st) 182352-U (Nov. 26, 2019) (quoting Restatement (Second) of Contracts Sec. 90(1)).

Here are highlights of Justice Mary Ellen Coghlan’s Rule 23 decision (with light editing and omissions not noted):

M.J. was born to Arrie on Oct[.] 12, 2008. The following day, Eric and Arrie signed a VAP stating that Eric was M.J.’s father.

In 2012, Arrie filed a child support petition against Eric. During the course of those proceedings, Arrie admitted in court that Eric was not M.J.’s father. The trial court ordered genetic testing. The test results excluded Eric as M.J.’s biological father.

Arrie told Eric that she would no longer seek child support from him, and her petition was dismissed in June 2013.

On Aug[.] 7, 2017, the department filed a uniform support petition against Eric on behalf of Arrie, seeking current and retroactive child support for M.J.

At a hearing on Oct[.] 13, 2017, Eric appeared on his own behalf and informed the court that a court-ordered genetic test from 2012 established that he was not M.J.’s father. The trial court continued the matter for Eric to obtain the 2012 results. At Eric’s request, the court also ordered a second genetic test.

On Feb[.] 27, 2018, the DNA Diagnostics Center issued a report stating that the probability of Eric’s paternity was zero.

Later, on April 6, the trial court granted Eric leave to file a petition challenging the VAP, which he did on June 11. In his petition, Eric stated that the VAP should be vacated under Section 309(a) of the Illinois Parentage Act of 2015, which provides that a VAP may be challenged on grounds of fraud within two years of its effective date, excluding any time during which the ground for relief is fraudulently concealed.

Eric explained that when Arrie became pregnant with M.J., she falsely represented to him that he was the father, and her fraud induced him to sign the VAP. After he discovered the truth in 2012, Arrie agreed not to seek child support from him and her petition was dismissed.

Eric, who was acting pro se, believed the issue of M.J.’s paternity was thereby resolved. He did not realize he needed to challenge the VAP until the court granted him leave to do so on April 6, 2018. Thus, he asserted that his June 11, 2008 challenge was timely under Section 309(a).

A hearing on Eric’s petition was held on June 19, 2018. Eric, the sole testifying witness, testified consistently with the facts described above.

The department contended that Eric’s challenge to the VAP was untimely. It argued that the two-year statutory period to challenge the VAP began to run no later than 2012, when Eric became aware he was not M.J.’s father based on Arrie’s statements and the results of the 2012 genetic test.

The trial court disagreed, finding that Eric “testified with a high degree of credibility” that he relied on Arrie’s assurance that she would not seek child support for M.J. Thus, the court found the two-year period was tolled based on Eric’s detrimental reliance on Arrie’s promise.

Analysis

The Parentage Act of 2015 enables voluntary creation of a parent-child relationship by signing a VAP, which is “the equivalent of a judicial adjudication of parentage of the child.” 750 ILCS 46/302.

One who signs a VAP may rescind it within 60 days of its effective date, provided he has not been named as a party in a judicial or administrative proceeding relating to the child. After the 60-day window, a VAP may only be challenged as provided in Section 309(a):

“A voluntary acknowledgment … may be challenged only on the basis of fraud, duress or material mistake of fact by filing a verified petition under this section within [two] years after the effective date of the voluntary acknowledgment … Time during which the person challenging the voluntary acknowledgment … is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of [two] years.”

Here, Eric challenged the VAP on the basis of fraud, alleging that he signed the VAP only because of Arrie’s fraudulent representation to him that he was M.J.’s father. Eric also argued that Arrie’s fraudulent concealment of M.J.’s true parentage tolled the two-year period for filing a VAP.

The department does not dispute the foregoing contentions, but it argues that Arrie’s fraud ended no later than 2012, when she admitted that Eric was not M.J.’s father and her admission was corroborated by genetic testing. After that point, the department argues, Eric’s ground for relief was no longer concealed, and the two-year statute of limitations began to run; accordingly, Eric’s 2018 challenge to the VAP was untimely.

Under the facts of this case, we need not address the timeliness of Eric’s petition, because we find that Arrie (and therefore the department, bringing this suit on her behalf) is estopped from raising the statute of limitations against Eric. See Senior Housing Inc. v. Nakawatase, 192 Ill. App. 3d 766 (1989) (“Our decision that defendant is estopped by its actions from asserting the statute of limitations as a defense obviates the need to address the issue as to whether the statute of limitations had expired prior to plaintiff’s filing of its complaint.”).

Although the trial court did not explicitly reference estoppel in its ruling, it is well established that we may affirm the trial court for any reason apparent from the record. Tummelson v. White, 2015 IL App (4th) 150151; see also Jackson Jordan v. Leydig, 158 Ill. 2d 240 (1994) (considering issue of estoppel even where it was not properly preserved by the parties).

The doctrine of promissory estoppel, as expressed in the Restatement (Second) of Contracts, is as follows: “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” Restatement (Second) of Contracts Sec. 90(1) (1981); see Matthews v. Chicago Transit Authority, 2016 IL 117638 (acknowledging adoption of Section 90(1) in Illinois).

To establish promissory estoppel, a party must show that (1) the other party made an unambiguous promise to him; (2) he relied on that promise; (3) his reliance was expected and foreseeable; and (4) his reliance worked to his detriment. Newton v. Kubota, 233 Ill. 2d 46 (2009).

All these elements are present here.

Arrie promised not to seek child support from Eric, who relied on that promise and did not take legal action to vacate the VAP. Eric’s reliance was both expected and foreseeable under the circumstances, particularly since Arrie initially followed through on her promise by dismissing her child support petition. Finally, Eric’s reliance was detrimental, because it enabled the [d]epartment to file the present suit.

In this regard, this case is analogous to cases where a defendant is equitably estopped from asserting the statute of limitations because she misrepresented or concealed material facts, and the plaintiff reasonably relied on her misrepresentations in forbearing from suit. See, e.g., Jackson Jordan, 158 Ill. 2d at 251-53 (in legal malpractice suit, defendant firm was estopped from asserting statute of limitations where plaintiff’s delay in bringing malpractice suit was induced by firm’s actions, since “the client was lulled into a false sense of security by the firm’s soothing reassurances and advice”).

Here, Eric was lulled into a false sense of security, not by a misrepresentation of material fact, but by Arrie’s promise not to seek child support from him in the future. Under these circumstances, injustice can only be avoided by enforcement of Arrie’s promise not to seek child support from him.

Thus, the trial court acted properly in vacating the VAP and directing the department to withdraw its child support petition.