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Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
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PrettyPeonies
GAW my baby boy <3
Member since 8/10 3874 total posts
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Pino
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
I seriously think I saw a Law and Order episode very similar to this a few yrs ago!!!
What an insane woman! That poor child. Did they state what happened to her husband?
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Posted 3/31/11 2:48 PM  |
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Long Island Weddings
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MySunshine
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
Posted by bicosi
Posted by NYPD-Wife
Crazy!! Question though, doesn't saliva kill sperm? also was a DNA test taken??
I have no clue.. in either case, that must have been some load!   lol
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| Posted 3/31/11 2:50 PM |
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DancinBarefoot
06ers Rock!!
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
Posted by Blu-ize
I don't believe one word of this story.
You may not believe it, but it's real.
Philips v Irons
Plaintiff, Richard Phillips, appeals from the circuit court's dismissal of his complaint filed against defendant, Sharon Irons, in response to a parentage action brought previously by defendant against plaintiff. On appeal, plaintiff contends the court erred in dismissing his claims pursuant to section 2-615 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-615 (2004).
On May 23, 2003, plaintiff filed a three-count third amended complaint against defendant, seeking damages for (1) intentional infliction of emotional distress (IIED) (count I), (2) fraudulent misrepresentation (count II), and (3) conversion (count III). Plaintiff's complaint provides the following allegations. He and defendant began dating in January of 1999, prior to which time defendant informed plaintiff that she was divorced, her prior marriage having occurred one year earlier, and it was a “terrible mistake.” In a short period of time, plaintiff and defendant became engaged to be married. During their relationship, the parties discussed the possibility of having children only after they married. Plaintiff informed defendant he did not wish to have children prior to marriage, and intended to use a condom if and when they engaged in sexual intercourse. Defendant understood and agreed. During the entire course of their relationship, the parties engaged in intimate sexual acts three times, with two of those times occurring on the same date. Vaginal penetration never occurred; the parties engaged only in acts of oral sex. Defendant told plaintiff she did not want to have sexual intercourse due to her menses. On or around February 19, 1999, and March 19, 1999, defendant “intentionally engaged in oral sex with [plaintiff] so that she could harvest [his] semen and artificially inseminate herself,” and “did artificially inseminate herself.”
Plaintiff's complaint alleged further that in May of 1999, defendant confessed to plaintiff that she still was married to her former husband, Dr. Adebowale Adeleye. She told plaintiff she planned to get a divorce, and showed him a “Petition for Dissolution of Marriage,” which was filed on May 20, 1999. In the petition, defendant swore she was not pregnant. The parties' relationship terminated in May of 1999, upon plaintiff learning defendant was not divorced.
On November 21, 2000, defendant filed a “Petition to Establish Paternity and Other Relief” against plaintiff, claiming she and plaintiff had a sexual relationship eight to ten months before the birth of defendant's daughter, Serena, on December 1, 1999. DNA tests have confirmed plaintiff is Serena's biological father.FN1 Plaintiff's complaint asserted he had no knowledge of defendant's pregnancy nor the birth of the child until receiving defendant's petition to establish paternity. He also claimed defendant continued to live with Adeleye during her pregnancy, after which defendant led Adeleye and the public to believe Serena is Adeleye's daughter, as evinced by Adeleye's name on Serena's birth certificate. Plaintiff contends Serena still does not know he is her biological father.
FN1. At the time this case was before the circuit court, and as of the filing of plaintiff's original brief, plaintiff's paternity had not been established. Although the parties agree that plaintiff is Serena's biological father, no documentation is provided in the record on appeal.
*2 Following the filing of plaintiff's initial complaint, defendant successfully moved to dismiss under section 2-615. Plaintiff ultimately filed a third amended complaint, which was dismissed with prejudice, the circuit court finding each count “continues to lack sufficient facts” necessary to state a cause of action. Plaintiff timely appeals.
The question presented by a section 2-615 motion to dismiss is whether sufficient facts have been pled in the complaint which, if proved, would entitle plaintiff to relief. RBC Mortgage Co. v. National Union Fire Insurance Co., 349 Ill.App.3d 706, 711, 812 N.E.2d 728 (2004). All well-pleaded facts in the complaint and all reasonable inferences drawn therefrom are taken as true, and are construed in the light most favorable to plaintiff. Feltmeier v. Feltmeier, 207 Ill.2d 263, 267, 798 N.E.2d 795 (2003) ( Feltmeier ). A complaint is susceptible to dismissal under section 2-615 only when it clearly appears that no set of facts could be proved under the pleadings that would entitle plaintiff to relief, and where the circuit court can determine the relative rights of the parties solely from the pleadings. RBC, 349 Ill.App.3d at 711. To state a cause of action adequately, the claim must be sufficient both legally and factually, setting forth a legally recognized claim as its basis, as well as pleading facts which are cognizable legally. RBC, 349 Ill.App.3d at 711. A complaint dismissed under section 2-615 requires the reviewing court to apply a de novo standard of review. Vitro v. Mihelcic, 209 Ill.2d 76, 81, 806 N.E.2d 632 (2004).
I
Plaintiff argues the circuit court erred in dismissing count I of his complaint for intentional infliction of emotional distress. He claims defendant's conduct was “extreme and outrageous,” when she lied about being unable to engage in intercourse or to conceive due to her menses and agreed to prevent conception of children prior to marriage, but then intentionally engaged in oral sex so she could harvest his semen to artificially inseminate herself.FN2 Plaintiff asserts defendant falsely claimed not to be pregnant in her petition for dissolution, yet in her response to plaintiff's “Demand for Bill of Particulars” in the pending paternity suit, defendant informed the circuit court she “began to suspect that [she] was pregnant during the week of April 5, 1999.” FN3
FN2. Although the legal issues involved are dissimilar from those presented in the case sub judice, there are at least two cases dealing with self-insemination. In Jhordan C. v. Mary K., 179 Cal.App.3d 386 (Cal.Ct.App.1986), an unmarried woman artificially inseminated herself at home with the semen of a known donor and gave birth to a child she intended to raise jointly with a close woman friend. The donor filed an action to establish paternity and visitation rights. With regard to the mother's ability to inseminate herself, the Court of Appeal of California stated “[i]t is true that nothing inherent in artificial insemination requires the involvement of a physician. Artificial insemination is, as demonstrated here, a simple procedure easily performed by a woman in her own home.” Jhordan C., 179 Cal.App.3d at 393-94.In State v. Frisard, 694 So.2d 1032 (La.Ct.App.1997), the child's mother filed a paternity suit against the father, who denied having sexual intercourse with the mother, to whom he was not married. He alleged she, a nursing assistant, performed oral sex on him in a hospital, made him wear a condom, and used his sperm to inseminate herself in a nearby bathroom with a “red looking bulb with a glass tube.” Frisard, 694 So.2d at 1035. In addition to DNA results and plaintiff's affidavit, in which she stated she had sexual intercourse with defendant and did not have intercourse with any other man 30 days before or after the date of conception, the Court of Appeal of Louisiana explained that defendant's “testimony showed that he had some sort of sexual contact with plaintiff around the time frame of alleged conception, although he denied that they had sexual intercourse.” Frisard, 694 So.2d at 1035-36.
FN3. Plaintiff has not included this pleading in the record on appeal.
Plaintiff asserts defendant “intended to inflict emotional distress on plaintiff or knew there was a high probability that her conduct would do so.” He claims defendant, as a physician and clinical professor of internal medicine, is well versed in: the functions of the female body; the fact that the mouth is a suitable environment to house live sperm; and the art of artificial insemination. Given defendant's awareness of the circumstances, plaintiff contends defendant knew, or should have known, that filing her petition for paternity would shock him and inflict severe emotional distress.
*3 Plaintiff alleges defendant “actually caused severe emotional distress,” as manifested in his nausea; inability to eat; difficulty concentrating and sleeping; feelings of being trapped in a nightmare; diminished ability to trust; and headaches.
Without commenting on the veracity of plaintiff's allegations, defendant claims that even if his assertions are true, his symptoms are insufficient to support an action for IIED. She argues further that a cause of action for an intentional tort cannot be based on the filing of a law suit.FN4
FN4. Defendant cites generally Gibson v. Chemical Card Services Corp., 157 Ill.App.3d 211, 510 N.E.2d 37 (1987), citing Public Finance Corp. v. Davis, 66 Ill.2d 86, 360 N.E.2d 765 (1976); however, this authority does not stand for the proposition for which it is cited by defendant. In Gibson, plaintiff alleged she incurred severe emotional distress during a criminal investigation in which she was suspected of stealing credit cards from defendant corporation. Gibson, 157 Ill.App.3d at 212. In Public Finance, defendant collectors harassed plaintiff debtor and induced her to write a bad check. Gibson, 157 Ill.App.3d at 217.
Plaintiff responds that defendant's filing of a parentage action against him “does not stand alone in provoking distress but is augmented by the realization of a more calculated, profound, personal betrayal which took place nearly [two] years before but to which he was unaware.”
Three elements are needed to state a cause of action for IIED: (1) the conduct involved must be truly extreme and outrageous; (2) the actor must either intend that his or her conduct inflict severe emotional distress, or know that there is at least a high probability that it will cause severe emotional distress; and (3) the conduct must, in fact, cause severe emotional distress. Feltmeier, 207 Ill.2d at 268-69. To state an action for IIED, the complaint must be specific and detailed, beyond what is normally considered permissible in pleading a tort action. Welsh v. Commonwealth Edison Co., 306 Ill.App.3d 148, 155, 713 N.E.2d 679 (1999) ( Welsh ).
First, it must be determined whether plaintiff alleged sufficient facts to show defendant's “extreme and outrageous” conduct. Whether conduct is extreme and outrageous is evaluated on an objective standard based on all of the facts and circumstances. McGrath v. Fahey, 126 Ill.2d 78, 90, 533 N.E.2d 806 (1988) ( McGrath ). Mere insults, indignities, threats, annoyances, petty oppressions or other trivialities do not qualify as outrageous conduct. Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 20-21, 607 N.E.2d 201 (1992). Rather, the nature of defendant's conduct must be so extreme as to go beyond all possible bounds of decency, and to be regarded as intolerable in a civilized community. Kolegas, 154 Ill.2d at 21, quoting Restatement (Second) of Torts § 46, Comment d, at 73 (1965) (“recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!” ’).
In the case sub judice, if proved, defendant's actions would constitute “extreme and outrageous” conduct. Defendant is accused of deliberately misleading plaintiff to believe she did not want to conceive children until after marriage and could not become pregnant due to her menstrual cycle, but deceitfully engaged in sexual acts, which no reasonable person would expect could result in pregnancy, to use plaintiff's sperm in an unorthodox, unanticipated manner yeilding extreme consequences. Under these facts, it is cognizable that if an average member of the parties' community were told of these circumstances, a reasonable response could be, “outrageous!”
*4 Next, it must be determined whether plaintiff alleged sufficient facts to establish defendant intended that her conduct inflict severe emotional distress, or knew there is at least a high probability that it would. In support of this element, plaintiff argues that defendant used her scientific knowledge to procure his sperm to impregnate herself successfully, while plaintiff believed conception was physically impossible and against defendant's wishes.
Under these circumstances, even if defendant intended to accomplish only conception and procreation, she knew there was at least a high probability that her manner of so doing would inflict severe emotional distress on plaintiff. According to plaintiff, defendant was aware of his desire to have children only after marriage. Further, plaintiff believed defendant could not become pregnant, not only due to the nature of the sexual acts, but because he believed she was infertile at the time as a result of her menstrual cycle. Months later, however, defendant informed plaintiff he fathered her child. From these facts, if proved, it may be inferred reasonably that defendant knew manipulating plaintiff into unwittingly conceiving a child out of wedlock would inflict severe emotional distress. Further, contrary to defendant's assertion, plaintiff is not claiming the act of filing the paternity suit itself caused him severe emotional distress; it was the result of defendant's actions in their entirety.
Last, it must be determined whether plaintiff set forth sufficient facts to allege “severe” emotional distress. Plaintiff claims he “often finds himself nauseated and unable to eat, especially when-as a family practitioner-he treats small children who are the same age as the child he allegedly fathered.” He states that his continued thoughts of this child have caused him difficulty sleeping and has interfered with his professional obligations and personal activities. He feels “as if he is trapped in a terrible nightmare,” he is “burdened with feelings of betrayal,” and “his ability to trust has been greatly diminished,” which has “greatly affected his social life.”
Plaintiff must allege some facts which, if true, would support the conclusion that the emotional distress actually suffered as a proximate result of defendant's conduct was severe; however, merely characterizing emotional distress as severe is insufficient. Welsh, 306 Ill.App.3d at 155-56. It is the degree of emotional distress actually suffered by plaintiff which separates the actionable from the non-actionable. Welsh, 306 Ill.App.3d at 155. “The intensity and duration of the distress are factors to be considered in determining its severity.” McGrath, 126 Ill.2d at 86.
Here, plaintiff has not stated merely that his distress is severe, but has illustrated with examples the effect of defendant's actions on him. As plaintiff's claim involves a physically and psychologically manipulated non-consensual pregnancy, it is cognizable that the intensity of his emotional distress is great and its duration long-lasting. Despite defendant's contentions that plaintiff's symptoms are insufficient in law to support an action for IIED, in “Illinois, unlike some other jurisdictions, physical injury or disability is not required to accompany, or result from, the psychic trauma.” McCaskill v. Barr, 92 Ill.App.3d 157, 159, 414 N.E.2d 1327 (1980) ( McCaskill ), citing Knierim v. Izzo, 22 Ill.2d 73, 83, 174 N.E.2d 157 (1961).FN5
FN5. The court noted further, “[w]ithout any physical manifestation to be objectively observed, it is more important than ever that the [trier of fact] possess sufficient factual data in order to say that the events would lead an ordinarily reasonable person into a state of mental distress.” McCaskill, 92 Ill.App.3d at 159.
*5 At this stage plaintiff is not required to prove his case: “[a]lthough a complaint is deficient when it fails to allege the facts necessary for recovery, [ ] plaintiff is not required to set out evidence; only the ultimate facts to be proved should be alleged, not the evidentiary facts tending to prove such ultimate facts.” Chandler v. Illinois Central R.R., 207 Ill.2d 331, 348, 798 N.E.2d 724 (2003). Whether plaintiff will prevail on the elements of his claim for IIED is a quintessential question of fact to be resolved by the trier of fact. Accordingly, the circuit court erred in dismissing count I of plaintiff's complaint.
II
Plaintiff contends next the circuit court erred in dismissing count II of his complaint for fraudulent misrepresentation, arguing the facts presented satisfy each requisite element.
The elements of a claim for fraudulent misrepresentation are: (1) a false statement of material fact; (2) known or believed to be false by the party making it; (3) intent to induce plaintiff to act; (4) action by plaintiff in justifiable reliance on the truth of the statement; and (5) damage to plaintiff resulting from such reliance. Board of Education of City of Chicago v. A. C & S. Inc., 131 Ill.2d 428, 452, 546 N.E.2d 580 (1989). Facts constituting an alleged fraudulent misrepresentation must be pleaded with specificity and particularity. Board of Education, 131 Ill.2d at 457.
In this case, it is unnecessary to examine sufficiency of the facts presented in the complaint, as this claim is not of the type sustainable under the instant circumstances. The tort of fraudulent misrepresentation historically has been limited to cases involving business or financial transactions where plaintiff has suffered a pecuniary harm. Neurosurgery & Spine Surgery, S.C. v. Goldman, 339 Ill.App.3d 177, 185-86, 790 N.E.2d 925 (2003), citing W. Prosser, Torts, § 105 (4th ed.1971). Fraudulent misrepresentation is a tort distinct from the general milieu of negligent and intentional wrongs; it is an economic tort under which one may recover only monetary damages. Neurosurgery, 339 Ill.App.3d at 186. Therefore, plaintiff may not recover on allegations of physical and emotional distress. Neurosurgery, 339 Ill.App.3d at 187. The circuit court did not err in dismissing plaintiff's claim for fraudulent misrepresentation.
III
Plaintiff argues last that the circuit court erred in dismissing count III of his complaint for conversion. He asserts that defendant committed the tort when she took his “semen, sperm, and genetic material without his permission, for the purpose of conceiving a child, purportedly within the bounds of her marriage to Adeleye.”
Defendant responds that where plaintiff did not loan or lease his sperm, where there was no agreement that the original deposit would be returned upon request, or where the transaction did not create a bailment, a claim for conversion cannot be sustained. She asserts that when plaintiff “delivered” his sperm to defendant it was a gift-an absolute and irrevocable transfer of title to property from a donor to donee. Plaintiff's donative intent was clear, she argues, “had he not-intended to deliver his sperm to [her], he would have used a condom and kept it and its contents.”
*6 Conversion is an unauthorized act that deprives a person of his property permanently or for an indefinite time. In re Thebus, 108 Ill.2d 255, 259, 483 N.E.2d 1258 (1985). “It must be shown that the money claimed, or its equivalent, at all times belonged to [ ] plaintiff and that [ ] defendant converted it to his own use. [Citation.]” Thebus, 108 Ill.2d at 261. The elements of a claim for conversion are: (1) plaintiff's right in the property; (2) plaintiff's right to immediate, absolute, and unconditional possession of the property; (3) defendant's unauthorized and wrongful assumption of control, dominion, or ownership over the property; and (4) plaintiff's demand for possession. Stathis v. Geldermann, Inc., 295 Ill.App.3d 844, 856, 692 N.E.2d 798 (1998).
In this case, no set of facts could be proved under the pleadings that would entitle plaintiff to relief for conversion, as he cannot satisfy the requisite elements. Cases from other jurisdictions have recognized the existence of a “property right” in materials derived from the human body (see e.g. Kurchener v. State Farm Fire and Casualty Co., 858 So.2d 1220 (Fla.Ct.App.2003); Hecht v. Superior Court, 16 Cal.App. 4th 836 (Cal.App.1993); Moore v. Regents of University of California, 51 Cal.3d 120 (Cal.1989); York v. Jones, 717 F.Supp. 421 (E.D.Va.1989)); however, plaintiff cannot show he had the “right to immediate, absolute, and unconditional possession” of his sperm. Plaintiff presumably intended, and he does not claim otherwise, that defendant discard his semen, not return it to him. “The essence of conversion is the wrongful deprivation of one who has a right to the immediate possession of the object unlawfully held.” Bender v. Consolidated Mink Ranch, Inc., 110 Ill.App.3d 207, 213, 441 N.E.2d 1315 (1982). Plaintiff is unable to satisfy the second element needed to state a claim for conversion. In light of the foregoing, the third and fourth elements of conversion need not be addressed.
For the reasons set forth above, the judgment of the circuit court of Cook County is affirmed as to counts II and III, reversed as to count I, and the cause is remanded.
Affirmed in part and reversed in part; cause remanded.
HARTMAN, J., with HOFFMAN and SOUTH, J.J., concurring.
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| Posted 3/31/11 2:52 PM |
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browneyes
All moms are working mothers!
Member since 8/08 4311 total posts
Name:
Super Mom
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
This is crazy!!! What in the worlld is this place coming to!
Hes basically a sperm donor he should not have to pay any child support. Poor Kid crazy mom n father that had no intentions on having a child.. 
Message edited 3/31/2011 2:58:51 PM.
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| Posted 3/31/11 2:58 PM |
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Mrs213
????????
Member since 2/09 18986 total posts
Name:
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
that is sick in the head but I have to say I didn't think it was possible, I thought the sperm died once they hit the air or something lol
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| Posted 3/31/11 3:00 PM |
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imagin916
LIF Adult
Member since 6/05 1826 total posts
Name:
Valerie
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
I guess the thing is, is the woman claiming that they actually did have sex or did she admit that she took his sperm and inseminated herself?
If she is disputing this claim that its her word against his. Regardless, if she really did this she is seriously messed up and should be punished somehow.
I would hate to see what kind of precedent this will set though, I'm sure there will be plenty of losers out there who will claim that they never had sex with the woman who is suing for child support just to get out of paying 
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| Posted 3/31/11 3:03 PM |
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jambalady
Is it summer yet?
Member since 8/06 7392 total posts
Name:
Holly
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
That woman is a wack-a-doo!!
She should have the child taken away from her for being that crazy!!!
I understand the court has to look at the best interest of the child in child support cases, but that poor man.
And, what is this poor child going to think when she is old enough to find out how she is conceived.
This story is just YUCKY!
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| Posted 3/31/11 3:09 PM |
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jilliibabii
Mrs. O'Connor
Member since 6/10 12821 total posts
Name:
Jillian
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
Posted by staceyums81
that is sick in the head but I have to say I didn't think it was possible, I thought the sperm died once they hit the air or something lol
I always thought so, too, but I don't know WHY I thought that. I mean if you think about it, a regular sperm donor has to ejaculate into a cup and it hits the air then. But they still can use it for in vitro fertilization.
On a side note, has anyone seen the movie The Switch with Jason Bateman and Jennifer Anniston? Kind of a parallel to this story!
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| Posted 3/31/11 3:09 PM |
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VanderZwang
LIF Adolescent
Member since 2/11 740 total posts
Name:
Gail
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
+  = 
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| Posted 3/31/11 3:33 PM |
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01ellie
LIF Adult
Member since 9/10 2245 total posts
Name:
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
OMG my friend told me about this story last week and it sounded so outrageous that it couldnt be true!! but i guess it is!!
he shouldnt have to pay child support...
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| Posted 3/31/11 3:44 PM |
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01ellie
LIF Adult
Member since 9/10 2245 total posts
Name:
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
Posted by bicosi
Posted by NYPD-Wife
Crazy!! Question though, doesn't saliva kill sperm? also was a DNA test taken??
I have no clue.. in either case, that must have been some load! lol
on the TTC board we talk about "sperm friendly" lube and using Preseed lube instead of saliva...and here is this woman just spitting it out, inseminating herself and actually getting pregnant!! crazy stuff
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| Posted 3/31/11 3:48 PM |
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RocPin
Life's Beachy <3
Member since 2/08 6765 total posts
Name:
Heather
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
Posted by bicosi
Posted by NYPD-Wife
Crazy!! Question though, doesn't saliva kill sperm? also was a DNA test taken??
I have no clue.. in either case, that must have been some load! lol
Fa real!
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| Posted 3/31/11 3:48 PM |
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MrsBurtch525
Year for change!
Member since 1/09 6017 total posts
Name:
Taryn
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
Posted by heathergirl
(no pun intended).
That is crazy!!!! I mean, for all intents and purposes the child is his, and he should support her, but the way in which she did this is beyond devious!
Agreed! Couldn't have said it better myself!
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| Posted 3/31/11 3:57 PM |
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evnme
My little lamb
Member since 8/05 12633 total posts
Name:
aka momma2b
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
OMG! that's crazy!
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| Posted 3/31/11 4:05 PM |
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NervousNell
Just another chapter in life..
Member since 11/09 54921 total posts
Name:
..being a mommy and being a wife!
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
Posted by jilliibabii
Posted by staceyums81
that is sick in the head but I have to say I didn't think it was possible, I thought the sperm died once they hit the air or something lol
I always thought so, too, but I don't know WHY I thought that. I mean if you think about it, a regular sperm donor has to ejaculate into a cup and it hits the air then. But they still can use it for in vitro fertilization.
On a side note, has anyone seen the movie The Switch with Jason Bateman and Jennifer Anniston? Kind of a parallel to this story!
I think they say that the AIDS virus dies when it hits the air.
Maybe that is where the confusion lies...?
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| Posted 3/31/11 4:08 PM |
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Blu-ize
Plan B is Now Plan A
Member since 7/05 32475 total posts
Name:
Susan
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
Posted by DancinBarefoot
Posted by Blu-ize
I don't believe one word of this story.
You may not believe it, but it's real.
Philips v Irons
Plaintiff, Richard Phillips, appeals from the circuit court's dismissal of his complaint filed against defendant, Sharon Irons, in response to a parentage action brought previously by defendant against plaintiff. On appeal, plaintiff contends the court erred in dismissing his claims pursuant to section 2-615 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-615 (2004).
On May 23, 2003, plaintiff filed a three-count third amended complaint against defendant, seeking damages for (1) intentional infliction of emotional distress (IIED) (count I), (2) fraudulent misrepresentation (count II), and (3) conversion (count III). Plaintiff's complaint provides the following allegations. He and defendant began dating in January of 1999, prior to which time defendant informed plaintiff that she was divorced, her prior marriage having occurred one year earlier, and it was a “terrible mistake.” In a short period of time, plaintiff and defendant became engaged to be married. During their relationship, the parties discussed the possibility of having children only after they married. Plaintiff informed defendant he did not wish to have children prior to marriage, and intended to use a condom if and when they engaged in sexual intercourse. Defendant understood and agreed. During the entire course of their relationship, the parties engaged in intimate sexual acts three times, with two of those times occurring on the same date. Vaginal penetration never occurred; the parties engaged only in acts of oral sex. Defendant told plaintiff she did not want to have sexual intercourse due to her menses. On or around February 19, 1999, and March 19, 1999, defendant “intentionally engaged in oral sex with [plaintiff] so that she could harvest [his] semen and artificially inseminate herself,” and “did artificially inseminate herself.”
Plaintiff's complaint alleged further that in May of 1999, defendant confessed to plaintiff that she still was married to her former husband, Dr. Adebowale Adeleye. She told plaintiff she planned to get a divorce, and showed him a “Petition for Dissolution of Marriage,” which was filed on May 20, 1999. In the petition, defendant swore she was not pregnant. The parties' relationship terminated in May of 1999, upon plaintiff learning defendant was not divorced.
On November 21, 2000, defendant filed a “Petition to Establish Paternity and Other Relief” against plaintiff, claiming she and plaintiff had a sexual relationship eight to ten months before the birth of defendant's daughter, Serena, on December 1, 1999. DNA tests have confirmed plaintiff is Serena's biological father.FN1 Plaintiff's complaint asserted he had no knowledge of defendant's pregnancy nor the birth of the child until receiving defendant's petition to establish paternity. He also claimed defendant continued to live with Adeleye during her pregnancy, after which defendant led Adeleye and the public to believe Serena is Adeleye's daughter, as evinced by Adeleye's name on Serena's birth certificate. Plaintiff contends Serena still does not know he is her biological father.
FN1. At the time this case was before the circuit court, and as of the filing of plaintiff's original brief, plaintiff's paternity had not been established. Although the parties agree that plaintiff is Serena's biological father, no documentation is provided in the record on appeal.
*2 Following the filing of plaintiff's initial complaint, defendant successfully moved to dismiss under section 2-615. Plaintiff ultimately filed a third amended complaint, which was dismissed with prejudice, the circuit court finding each count “continues to lack sufficient facts” necessary to state a cause of action. Plaintiff timely appeals.
The question presented by a section 2-615 motion to dismiss is whether sufficient facts have been pled in the complaint which, if proved, would entitle plaintiff to relief. RBC Mortgage Co. v. National Union Fire Insurance Co., 349 Ill.App.3d 706, 711, 812 N.E.2d 728 (2004). All well-pleaded facts in the complaint and all reasonable inferences drawn therefrom are taken as true, and are construed in the light most favorable to plaintiff. Feltmeier v. Feltmeier, 207 Ill.2d 263, 267, 798 N.E.2d 795 (2003) ( Feltmeier ). A complaint is susceptible to dismissal under section 2-615 only when it clearly appears that no set of facts could be proved under the pleadings that would entitle plaintiff to relief, and where the circuit court can determine the relative rights of the parties solely from the pleadings. RBC, 349 Ill.App.3d at 711. To state a cause of action adequately, the claim must be sufficient both legally and factually, setting forth a legally recognized claim as its basis, as well as pleading facts which are cognizable legally. RBC, 349 Ill.App.3d at 711. A complaint dismissed under section 2-615 requires the reviewing court to apply a de novo standard of review. Vitro v. Mihelcic, 209 Ill.2d 76, 81, 806 N.E.2d 632 (2004).
I
Plaintiff argues the circuit court erred in dismissing count I of his complaint for intentional infliction of emotional distress. He claims defendant's conduct was “extreme and outrageous,” when she lied about being unable to engage in intercourse or to conceive due to her menses and agreed to prevent conception of children prior to marriage, but then intentionally engaged in oral sex so she could harvest his semen to artificially inseminate herself.FN2 Plaintiff asserts defendant falsely claimed not to be pregnant in her petition for dissolution, yet in her response to plaintiff's “Demand for Bill of Particulars” in the pending paternity suit, defendant informed the circuit court she “began to suspect that [she] was pregnant during the week of April 5, 1999.” FN3
FN2. Although the legal issues involved are dissimilar from those presented in the case sub judice, there are at least two cases dealing with self-insemination. In Jhordan C. v. Mary K., 179 Cal.App.3d 386 (Cal.Ct.App.1986), an unmarried woman artificially inseminated herself at home with the semen of a known donor and gave birth to a child she intended to raise jointly with a close woman friend. The donor filed an action to establish paternity and visitation rights. With regard to the mother's ability to inseminate herself, the Court of Appeal of California stated “[i]t is true that nothing inherent in artificial insemination requires the involvement of a physician. Artificial insemination is, as demonstrated here, a simple procedure easily performed by a woman in her own home.” Jhordan C., 179 Cal.App.3d at 393-94.In State v. Frisard, 694 So.2d 1032 (La.Ct.App.1997), the child's mother filed a paternity suit against the father, who denied having sexual intercourse with the mother, to whom he was not married. He alleged she, a nursing assistant, performed oral sex on him in a hospital, made him wear a condom, and used his sperm to inseminate herself in a nearby bathroom with a “red looking bulb with a glass tube.” Frisard, 694 So.2d at 1035. In addition to DNA results and plaintiff's affidavit, in which she stated she had sexual intercourse with defendant and did not have intercourse with any other man 30 days before or after the date of conception, the Court of Appeal of Louisiana explained that defendant's “testimony showed that he had some sort of sexual contact with plaintiff around the time frame of alleged conception, although he denied that they had sexual intercourse.” Frisard, 694 So.2d at 1035-36.
FN3. Plaintiff has not included this pleading in the record on appeal.
Plaintiff asserts defendant “intended to inflict emotional distress on plaintiff or knew there was a high probability that her conduct would do so.” He claims defendant, as a physician and clinical professor of internal medicine, is well versed in: the functions of the female body; the fact that the mouth is a suitable environment to house live sperm; and the art of artificial insemination. Given defendant's awareness of the circumstances, plaintiff contends defendant knew, or should have known, that filing her petition for paternity would shock him and inflict severe emotional distress.
*3 Plaintiff alleges defendant “actually caused severe emotional distress,” as manifested in his nausea; inability to eat; difficulty concentrating and sleeping; feelings of being trapped in a nightmare; diminished ability to trust; and headaches.
Without commenting on the veracity of plaintiff's allegations, defendant claims that even if his assertions are true, his symptoms are insufficient to support an action for IIED. She argues further that a cause of action for an intentional tort cannot be based on the filing of a law suit.FN4
FN4. Defendant cites generally Gibson v. Chemical Card Services Corp., 157 Ill.App.3d 211, 510 N.E.2d 37 (1987), citing Public Finance Corp. v. Davis, 66 Ill.2d 86, 360 N.E.2d 765 (1976); however, this authority does not stand for the proposition for which it is cited by defendant. In Gibson, plaintiff alleged she incurred severe emotional distress during a criminal investigation in which she was suspected of stealing credit cards from defendant corporation. Gibson, 157 Ill.App.3d at 212. In Public Finance, defendant collectors harassed plaintiff debtor and induced her to write a bad check. Gibson, 157 Ill.App.3d at 217.
Plaintiff responds that defendant's filing of a parentage action against him “does not stand alone in provoking distress but is augmented by the realization of a more calculated, profound, personal betrayal which took place nearly [two] years before but to which he was unaware.”
Three elements are needed to state a cause of action for IIED: (1) the conduct involved must be truly extreme and outrageous; (2) the actor must either intend that his or her conduct inflict severe emotional distress, or know that there is at least a high probability that it will cause severe emotional distress; and (3) the conduct must, in fact, cause severe emotional distress. Feltmeier, 207 Ill.2d at 268-69. To state an action for IIED, the complaint must be specific and detailed, beyond what is normally considered permissible in pleading a tort action. Welsh v. Commonwealth Edison Co., 306 Ill.App.3d 148, 155, 713 N.E.2d 679 (1999) ( Welsh ).
First, it must be determined whether plaintiff alleged sufficient facts to show defendant's “extreme and outrageous” conduct. Whether conduct is extreme and outrageous is evaluated on an objective standard based on all of the facts and circumstances. McGrath v. Fahey, 126 Ill.2d 78, 90, 533 N.E.2d 806 (1988) ( McGrath ). Mere insults, indignities, threats, annoyances, petty oppressions or other trivialities do not qualify as outrageous conduct. Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 20-21, 607 N.E.2d 201 (1992). Rather, the nature of defendant's conduct must be so extreme as to go beyond all possible bounds of decency, and to be regarded as intolerable in a civilized community. Kolegas, 154 Ill.2d at 21, quoting Restatement (Second) of Torts § 46, Comment d, at 73 (1965) (“recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!” ’).
In the case sub judice, if proved, defendant's actions would constitute “extreme and outrageous” conduct. Defendant is accused of deliberately misleading plaintiff to believe she did not want to conceive children until after marriage and could not become pregnant due to her menstrual cycle, but deceitfully engaged in sexual acts, which no reasonable person would expect could result in pregnancy, to use plaintiff's sperm in an unorthodox, unanticipated manner yeilding extreme consequences. Under these facts, it is cognizable that if an average member of the parties' community were told of these circumstances, a reasonable response could be, “outrageous!”
*4 Next, it must be determined whether plaintiff alleged sufficient facts to establish defendant intended that her conduct inflict severe emotional distress, or knew there is at least a high probability that it would. In support of this element, plaintiff argues that defendant used her scientific knowledge to procure his sperm to impregnate herself successfully, while plaintiff believed conception was physically impossible and against defendant's wishes.
Under these circumstances, even if defendant intended to accomplish only conception and procreation, she knew there was at least a high probability that her manner of so doing would inflict severe emotional distress on plaintiff. According to plaintiff, defendant was aware of his desire to have children only after marriage. Further, plaintiff believed defendant could not become pregnant, not only due to the nature of the sexual acts, but because he believed she was infertile at the time as a result of her menstrual cycle. Months later, however, defendant informed plaintiff he fathered her child. From these facts, if proved, it may be inferred reasonably that defendant knew manipulating plaintiff into unwittingly conceiving a child out of wedlock would inflict severe emotional distress. Further, contrary to defendant's assertion, plaintiff is not claiming the act of filing the paternity suit itself caused him severe emotional distress; it was the result of defendant's actions in their entirety.
Last, it must be determined whether plaintiff set forth sufficient facts to allege “severe” emotional distress. Plaintiff claims he “often finds himself nauseated and unable to eat, especially when-as a family practitioner-he treats small children who are the same age as the child he allegedly fathered.” He states that his continued thoughts of this child have caused him difficulty sleeping and has interfered with his professional obligations and personal activities. He feels “as if he is trapped in a terrible nightmare,” he is “burdened with feelings of betrayal,” and “his ability to trust has been greatly diminished,” which has “greatly affected his social life.”
Plaintiff must allege some facts which, if true, would support the conclusion that the emotional distress actually suffered as a proximate result of defendant's conduct was severe; however, merely characterizing emotional distress as severe is insufficient. Welsh, 306 Ill.App.3d at 155-56. It is the degree of emotional distress actually suffered by plaintiff which separates the actionable from the non-actionable. Welsh, 306 Ill.App.3d at 155. “The intensity and duration of the distress are factors to be considered in determining its severity.” McGrath, 126 Ill.2d at 86.
Here, plaintiff has not stated merely that his distress is severe, but has illustrated with examples the effect of defendant's actions on him. As plaintiff's claim involves a physically and psychologically manipulated non-consensual pregnancy, it is cognizable that the intensity of his emotional distress is great and its duration long-lasting. Despite defendant's contentions that plaintiff's symptoms are insufficient in law to support an action for IIED, in “Illinois, unlike some other jurisdictions, physical injury or disability is not required to accompany, or result from, the psychic trauma.” McCaskill v. Barr, 92 Ill.App.3d 157, 159, 414 N.E.2d 1327 (1980) ( McCaskill ), citing Knierim v. Izzo, 22 Ill.2d 73, 83, 174 N.E.2d 157 (1961).FN5
FN5. The court noted further, “[w]ithout any physical manifestation to be objectively observed, it is more important than ever that the [trier of fact] possess sufficient factual data in order to say that the events would lead an ordinarily reasonable person into a state of mental distress.” McCaskill, 92 Ill.App.3d at 159.
*5 At this stage plaintiff is not required to prove his case: “[a]lthough a complaint is deficient when it fails to allege the facts necessary for recovery, [ ] plaintiff is not required to set out evidence; only the ultimate facts to be proved should be alleged, not the evidentiary facts tending to prove such ultimate facts.” Chandler v. Illinois Central R.R., 207 Ill.2d 331, 348, 798 N.E.2d 724 (2003). Whether plaintiff will prevail on the elements of his claim for IIED is a quintessential question of fact to be resolved by the trier of fact. Accordingly, the circuit court erred in dismissing count I of plaintiff's complaint.
II
Plaintiff contends next the circuit court erred in dismissing count II of his complaint for fraudulent misrepresentation, arguing the facts presented satisfy each requisite element.
The elements of a claim for fraudulent misrepresentation are: (1) a false statement of material fact; (2) known or believed to be false by the party making it; (3) intent to induce plaintiff to act; (4) action by plaintiff in justifiable reliance on the truth of the statement; and (5) damage to plaintiff resulting from such reliance. Board of Education of City of Chicago v. A. C & S. Inc., 131 Ill.2d 428, 452, 546 N.E.2d 580 (1989). Facts constituting an alleged fraudulent misrepresentation must be pleaded with specificity and particularity. Board of Education, 131 Ill.2d at 457.
In this case, it is unnecessary to examine sufficiency of the facts presented in the complaint, as this claim is not of the type sustainable under the instant circumstances. The tort of fraudulent misrepresentation historically has been limited to cases involving business or financial transactions where plaintiff has suffered a pecuniary harm. Neurosurgery & Spine Surgery, S.C. v. Goldman, 339 Ill.App.3d 177, 185-86, 790 N.E.2d 925 (2003), citing W. Prosser, Torts, § 105 (4th ed.1971). Fraudulent misrepresentation is a tort distinct from the general milieu of negligent and intentional wrongs; it is an economic tort under which one may recover only monetary damages. Neurosurgery, 339 Ill.App.3d at 186. Therefore, plaintiff may not recover on allegations of physical and emotional distress. Neurosurgery, 339 Ill.App.3d at 187. The circuit court did not err in dismissing plaintiff's claim for fraudulent misrepresentation.
III
Plaintiff argues last that the circuit court erred in dismissing count III of his complaint for conversion. He asserts that defendant committed the tort when she took his “semen, sperm, and genetic material without his permission, for the purpose of conceiving a child, purportedly within the bounds of her marriage to Adeleye.”
Defendant responds that where plaintiff did not loan or lease his sperm, where there was no agreement that the original deposit would be returned upon request, or where the transaction did not create a bailment, a claim for conversion cannot be sustained. She asserts that when plaintiff “delivered” his sperm to defendant it was a gift-an absolute and irrevocable transfer of title to property from a donor to donee. Plaintiff's donative intent was clear, she argues, “had he not-intended to deliver his sperm to [her], he would have used a condom and kept it and its contents.”
*6 Conversion is an unauthorized act that deprives a person of his property permanently or for an indefinite time. In re Thebus, 108 Ill.2d 255, 259, 483 N.E.2d 1258 (1985). “It must be shown that the money claimed, or its equivalent, at all times belonged to [ ] plaintiff and that [ ] defendant converted it to his own use. [Citation.]” Thebus, 108 Ill.2d at 261. The elements of a claim for conversion are: (1) plaintiff's right in the property; (2) plaintiff's right to immediate, absolute, and unconditional possession of the property; (3) defendant's unauthorized and wrongful assumption of control, dominion, or ownership over the property; and (4) plaintiff's demand for possession. Stathis v. Geldermann, Inc., 295 Ill.App.3d 844, 856, 692 N.E.2d 798 (1998).
In this case, no set of facts could be proved under the pleadings that would entitle plaintiff to relief for conversion, as he cannot satisfy the requisite elements. Cases from other jurisdictions have recognized the existence of a “property right” in materials derived from the human body (see e.g. Kurchener v. State Farm Fire and Casualty Co., 858 So.2d 1220 (Fla.Ct.App.2003); Hecht v. Superior Court, 16 Cal.App. 4th 836 (Cal.App.1993); Moore v. Regents of University of California, 51 Cal.3d 120 (Cal.1989); York v. Jones, 717 F.Supp. 421 (E.D.Va.1989)); however, plaintiff cannot show he had the “right to immediate, absolute, and unconditional possession” of his sperm. Plaintiff presumably intended, and he does not claim otherwise, that defendant discard his semen, not return it to him. “The essence of conversion is the wrongful deprivation of one who has a right to the immediate possession of the object unlawfully held.” Bender v. Consolidated Mink Ranch, Inc., 110 Ill.App.3d 207, 213, 441 N.E.2d 1315 (1982). Plaintiff is unable to satisfy the second element needed to state a claim for conversion. In light of the foregoing, the third and fourth elements of conversion need not be addressed.
For the reasons set forth above, the judgment of the circuit court of Cook County is affirmed as to counts II and III, reversed as to count I, and the cause is remanded.
Affirmed in part and reversed in part; cause remanded.
HARTMAN, J., with HOFFMAN and SOUTH, J.J., concurring.
This doesn't mean it's true. I think it's crap.
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| Posted 3/31/11 5:19 PM |
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Alexandra17
Keep It Positive
Member since 4/09 6262 total posts
Name:
Alexandra (ali)
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
Posted by NervousNell
Posted by jilliibabii
Posted by staceyums81
that is sick in the head but I have to say I didn't think it was possible, I thought the sperm died once they hit the air or something lol
I always thought so, too, but I don't know WHY I thought that. I mean if you think about it, a regular sperm donor has to ejaculate into a cup and it hits the air then. But they still can use it for in vitro fertilization.
On a side note, has anyone seen the movie The Switch with Jason Bateman and Jennifer Anniston? Kind of a parallel to this story!
I think they say that the AIDS virus dies when it hits the air.
Maybe that is where the confusion lies...?
AIDS is dead when it hits air
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| Posted 3/31/11 6:25 PM |
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Lina
My angel is finally here
Member since 5/10 2559 total posts
Name:
Lindsay
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
Wow, this is crazy! I know a guy who caught his gf using a turkey baster, I'll let your imagination work on that, lol
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| Posted 3/31/11 6:26 PM |
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smdl
I love Gary too..on a plate!
Member since 5/06 32461 total posts
Name:
me
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
Did she actually officially said this is how she got PG?
I wish there would be a Law against this to protect both parties. That's insane!!!
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| Posted 3/31/11 6:28 PM |
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JoesWife628
Our family is complete :)
Member since 8/08 3934 total posts
Name:
Me
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
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| Posted 3/31/11 6:50 PM |
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maybebaby
LIF Adult
Member since 11/05 6870 total posts
Name:
Maureen
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
Finding out must have been tough on him. The truth can be hard to swallow!
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| Posted 3/31/11 6:57 PM |
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Peainapod
Peanuts are here!
Member since 1/09 13591 total posts
Name:
Diana
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
this sounds like a plot out of a soap opera..
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| Posted 3/31/11 7:04 PM |
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Jackie24
~We Did it~
Member since 7/06 6718 total posts
Name:
Jackie
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
Wow
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| Posted 3/31/11 7:56 PM |
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Deedlebugs
Blessed
Member since 12/05 10281 total posts
Name:
Kiki
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
Wow, that is some freaking super sperm to live through that! I have a really really really hard time believing this story.
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| Posted 3/31/11 8:56 PM |
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smdl
I love Gary too..on a plate!
Member since 5/06 32461 total posts
Name:
me
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Re: Man Who Received Oral Sex From His Ex-Girlfriend Must Now Pay Child Support.
Posted by Deedlebugs
Wow, that is some freaking super sperm to live through that! I have a really really really hard time believing this story.
I think she called the kid, MacGyver.
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| Posted 3/31/11 8:59 PM |
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