Davis v. Wicomico County Bureau
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Opinions
BATTAGLIA, J.
Justin Davis, Petitioner, twice sought to secure a paternity test years after he had executed an Affidavit of Parentage, in which he attested, shortly following the birth of twin boys in 2009, that he was their father. The Wicomico County Bureau [305]*305of Support Enforcement (“Bureau”), Respondent, in 2011, had filed a Complaint for Child Support against Mr. Davis, in which it alleged that Mr. Davis was responsible for support, because he had attested that he was the father of the twins; Mr. Davis, in turn, requested a paternity test and denied parentage of the children, alleging that his signature on the affidavit had been obtained through fraud or misrepresentation. Judge David B. Mitchell, then retired but specially sitting in the Circuit Court for Wicomico County, ordered Mr. Davis to pay child support; he also denied the request for a paternity test, because Mr. Davis had executed the affidavits of parentage and there was “nothing in this record and before this Court today that would even broach the subject of fraud, duress, or material mistake of fact.” Mr. Davis did not note an appeal.
Two years later, Mr. Davis, however, filed a “Complaint for Blood Test, to Challenge Finding of Paternity (By Affidavit of Parentage), and to Set Aside Child Support Order” in the Circuit Court for Wicomico County. Judge Donald C. Davis denied the request for a paternity test, concluding that “[Mr. Davis] has no absolute right to blood or genetic testing under FL § 5-1088; even if he did, he has waived his right by failing to appeal the trial judge’s decision in 2011; and there is no other meritorious basis asserted to grant [Mr. Davis] his requested relief,”
Mr. Davis then appealed to the Court of Special Appeals, which, in a reported opinion, affirmed.1 222 Md.App. 280, 112 A.3d 1024 (2015). Our brethren concluded that Mr. Davis’s claims were barred by res judicata, but also reached the merits. Judge Patrick L. Woodward, writing on behalf of the Court, in interpreting the statutes in issue, held that “the plain language and the legislative history of FL §§ 5-1028 and 5-[306]*3061038 support the trial court’s determination” that Mr. Davis “is not entitled to a blood or genetic test.” Id. at 246, 112 A.3d at 1033.
We granted certiorari, 444 Md. 638, 120 A.3d 766 (2015), to consider the following questions:
1. Is blood or genetic testing mandated when demanded by a putative father who, from the beginning of the legal process, presents evidence of fraudulent affidavits of parentage?
2. Does extrinsic evidence of fraud exist where the state’s attorney actively participates in the deception and fraud without disclosing it to the putative father or to the trial court during two trials? [2]
With respect to the seminal issue of res judicata as to whether the 2011 child support order from which Mr. Davis did not appeal precludes him from relitigating the same claims in 2013, we have defined res judicata as:
[A] judgment between the same parties and their privies is a final bar to any other suit upon the same cause of action, and is conclusive not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit....
Prince George’s County v. Brent, 414 Md. 334, 342, 995 A.2d 672, 677 (2010), quoting MPC, Inc. v. Kenny, 279 Md. 29, 32, 367 A.2d 486, 488-89 (1977). The requirements of the doctrine of res judicata are:
(1) that the parties in the present litigation are the same or in privity with the parties to the earlier dispute; (2) that the claim presented in the current action is identical to the one determined in the prior adjudication; and (3) that there was a final judgment on the merits.
[307]*307Colandrea v. Wilde Lake Community Ass’n, Inc., 361 Md. 371, 392, 761 A.2d 899, 910 (2000). Res judicata “avoids the expense and vexation attending multiple lawsuits, conserves the judicial resources, and fosters reliance on judicial action by minimizing the possibilities of inconsistent decisions.” Cochran v. Griffith Energy Services, Inc., 426 Md. 134, 140, 43 A.3d 999, 1002 (2012), quoting Anne Arundel County. Bd. of Educ. v. Norville, 390 Md. 93, 106-07, 887 A.2d 1029, 1037 (2005).
Mr. Davis does not dispute that the parties in the 2011 and 2013 cases are the same, nor that the claims were identical in both. Rather, he argues that res judicata should not bar his 2013 Complaint, because the equitable, remedial nature of paternity actions requires continuous vigilance by the judiciary, so that there cannot be a final judgment against which res judicata is measured.
A final judgment is “a judgment, decree, sentence, order, determination, decision, or other action by a court ... from which an appeal ... may be taken”, according to Section 12 — 101(f) of the Courts and Judicial Proceedings Article. We have stated that, “[a] ruling of the circuit court, to constitute a final judgment, must, among other things, be an ‘unqualified, final disposition of the matter in controversy.’ ” Addison v. Lochearn Nursing Home, LLC, 411 Md. 251, 262, 983 A.2d 138, 145 (2009), quoting Gruber v. Gruber, 369 Md. 540, 546, 801 A.2d 1013, 1016 (2002).
In the present case, Judge Mitchell’s order requiring Mr. Davis to pay child support and denying his request for a paternity test was a final judgment. Mr. Davis, of course, argues that because the Court continues to have jurisdiction over child support and parentage, that the order could not be final. Although we have specifically not opined about this subject, Judge Alan Wilner, then writing on behalf of the Court of Special Appeals, recognized that, “[a]n order establishing child support, or determining any other matter over which a continuing jurisdiction exists, if possessing all other required attributes of finality, is a judgment (see Md. Rule 1-[308]*308202( [o]))....” Haught v. Grieashamer, 64 Md.App. 605, 611, 497 A.2d 1182, 1185 (1985). Maryland Rule 1-202(o) defines judgment as “any order of court final in its nature entered pursuant to these rules.” Therefore, we agree with the Court of Special Appeals that res judicata would have barred the 2013 action.
The dissent, however, raises an argument never raised below before Judge Davis in 2013, nor before the Court of Special Appeals, that res judicata would not have barred the 2013 action, because Judge Mitchell in 2011 allegedly never addressed Mr.
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BATTAGLIA, J.
Justin Davis, Petitioner, twice sought to secure a paternity test years after he had executed an Affidavit of Parentage, in which he attested, shortly following the birth of twin boys in 2009, that he was their father. The Wicomico County Bureau [305]*305of Support Enforcement (“Bureau”), Respondent, in 2011, had filed a Complaint for Child Support against Mr. Davis, in which it alleged that Mr. Davis was responsible for support, because he had attested that he was the father of the twins; Mr. Davis, in turn, requested a paternity test and denied parentage of the children, alleging that his signature on the affidavit had been obtained through fraud or misrepresentation. Judge David B. Mitchell, then retired but specially sitting in the Circuit Court for Wicomico County, ordered Mr. Davis to pay child support; he also denied the request for a paternity test, because Mr. Davis had executed the affidavits of parentage and there was “nothing in this record and before this Court today that would even broach the subject of fraud, duress, or material mistake of fact.” Mr. Davis did not note an appeal.
Two years later, Mr. Davis, however, filed a “Complaint for Blood Test, to Challenge Finding of Paternity (By Affidavit of Parentage), and to Set Aside Child Support Order” in the Circuit Court for Wicomico County. Judge Donald C. Davis denied the request for a paternity test, concluding that “[Mr. Davis] has no absolute right to blood or genetic testing under FL § 5-1088; even if he did, he has waived his right by failing to appeal the trial judge’s decision in 2011; and there is no other meritorious basis asserted to grant [Mr. Davis] his requested relief,”
Mr. Davis then appealed to the Court of Special Appeals, which, in a reported opinion, affirmed.1 222 Md.App. 280, 112 A.3d 1024 (2015). Our brethren concluded that Mr. Davis’s claims were barred by res judicata, but also reached the merits. Judge Patrick L. Woodward, writing on behalf of the Court, in interpreting the statutes in issue, held that “the plain language and the legislative history of FL §§ 5-1028 and 5-[306]*3061038 support the trial court’s determination” that Mr. Davis “is not entitled to a blood or genetic test.” Id. at 246, 112 A.3d at 1033.
We granted certiorari, 444 Md. 638, 120 A.3d 766 (2015), to consider the following questions:
1. Is blood or genetic testing mandated when demanded by a putative father who, from the beginning of the legal process, presents evidence of fraudulent affidavits of parentage?
2. Does extrinsic evidence of fraud exist where the state’s attorney actively participates in the deception and fraud without disclosing it to the putative father or to the trial court during two trials? [2]
With respect to the seminal issue of res judicata as to whether the 2011 child support order from which Mr. Davis did not appeal precludes him from relitigating the same claims in 2013, we have defined res judicata as:
[A] judgment between the same parties and their privies is a final bar to any other suit upon the same cause of action, and is conclusive not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit....
Prince George’s County v. Brent, 414 Md. 334, 342, 995 A.2d 672, 677 (2010), quoting MPC, Inc. v. Kenny, 279 Md. 29, 32, 367 A.2d 486, 488-89 (1977). The requirements of the doctrine of res judicata are:
(1) that the parties in the present litigation are the same or in privity with the parties to the earlier dispute; (2) that the claim presented in the current action is identical to the one determined in the prior adjudication; and (3) that there was a final judgment on the merits.
[307]*307Colandrea v. Wilde Lake Community Ass’n, Inc., 361 Md. 371, 392, 761 A.2d 899, 910 (2000). Res judicata “avoids the expense and vexation attending multiple lawsuits, conserves the judicial resources, and fosters reliance on judicial action by minimizing the possibilities of inconsistent decisions.” Cochran v. Griffith Energy Services, Inc., 426 Md. 134, 140, 43 A.3d 999, 1002 (2012), quoting Anne Arundel County. Bd. of Educ. v. Norville, 390 Md. 93, 106-07, 887 A.2d 1029, 1037 (2005).
Mr. Davis does not dispute that the parties in the 2011 and 2013 cases are the same, nor that the claims were identical in both. Rather, he argues that res judicata should not bar his 2013 Complaint, because the equitable, remedial nature of paternity actions requires continuous vigilance by the judiciary, so that there cannot be a final judgment against which res judicata is measured.
A final judgment is “a judgment, decree, sentence, order, determination, decision, or other action by a court ... from which an appeal ... may be taken”, according to Section 12 — 101(f) of the Courts and Judicial Proceedings Article. We have stated that, “[a] ruling of the circuit court, to constitute a final judgment, must, among other things, be an ‘unqualified, final disposition of the matter in controversy.’ ” Addison v. Lochearn Nursing Home, LLC, 411 Md. 251, 262, 983 A.2d 138, 145 (2009), quoting Gruber v. Gruber, 369 Md. 540, 546, 801 A.2d 1013, 1016 (2002).
In the present case, Judge Mitchell’s order requiring Mr. Davis to pay child support and denying his request for a paternity test was a final judgment. Mr. Davis, of course, argues that because the Court continues to have jurisdiction over child support and parentage, that the order could not be final. Although we have specifically not opined about this subject, Judge Alan Wilner, then writing on behalf of the Court of Special Appeals, recognized that, “[a]n order establishing child support, or determining any other matter over which a continuing jurisdiction exists, if possessing all other required attributes of finality, is a judgment (see Md. Rule 1-[308]*308202( [o]))....” Haught v. Grieashamer, 64 Md.App. 605, 611, 497 A.2d 1182, 1185 (1985). Maryland Rule 1-202(o) defines judgment as “any order of court final in its nature entered pursuant to these rules.” Therefore, we agree with the Court of Special Appeals that res judicata would have barred the 2013 action.
The dissent, however, raises an argument never raised below before Judge Davis in 2013, nor before the Court of Special Appeals, that res judicata would not have barred the 2013 action, because Judge Mitchell in 2011 allegedly never addressed Mr. Davis’s claim for genetic testing. In the 2011 action, however, there were two issues queued up for decision by Judge Mitchell: one brought on behalf of the twins as to whether Mr. Davis should be ordered to pay child support and the other raised by Mr. Davis, as to whether Mr. Davis should have been afforded a genetic test because of alleged fraud in Section 5 — 1028(d)(2)(i) governing whether an affidavit of parentage was subject to attack. With respect to Mr. Davis’s claim, he repeatedly argued that he had been the victim of fraud and requested genetic testing:
[BUREAU]: But it’s my understanding Mr. Davis would like to present argument to the Court today to challenge the validity of those Affidavits under the Paternity Statute. * * *
[MR. DAVIS]: This is the whole reason we are here. The only thing I’m asking for is a paternity test to prove that I actually have an obligation to these children legally.
[THE COURT]: All right.
[MR. DAVIS]: That’s the only thing I’m asking for. I’m not asking for anything else. I’m just asking for a paternity test to actually prove paternity. That’s the only thing I want, Judge.
* # *
[MR. DAVIS]: I’m not sure — I’m not sure on the actual timing. The only thing that I think is relevant here is the fact that I’m just asking for a paternity test. That’s it. I’m [309]*309not trying to get out of any — I just want a paternity test so you guys can see if I’m actually the father.
[MR. DAVIS]: She could have deceived me when we were together. I’m not — I wasn’t with her 24/7. The only thing I’m asking for once again, I reiterate is — is a paternity test.
[MR DAVIS]: I just want a paternity test to prove in front of the Judge and the eyes of the law to make it legal that I am the father — if you prove to me legally that I’m the father, you can bring me back in here and I will pay all the child support you want____That’s — I just want a paternity test. I’m not asking to get out of something. I want — can you just prove to me that they’re my children?
* * *
[MR. DAVIS]: So in this case, I’m just asking for a paternity test. That’s it. I’m asking for a paternity test to actually prove paternity.
Judge Mitchell specifically responded to Mr. Davis’s repeated requests for a paternity test when he denied the existence of fraud at the time Mr. Davis executed the affidavit:
Thank you .... The statute authorizing the creation of these affidavits is found in Family Law Article Section 5-1028. In essence, for a period of 60 days after you sign the affidavit, you have the right to rescind it. You can rescind it in writing, or you can rescind it in a judicial proceeding provided that proceeding occurs within 60 days of the birth of the child or the execution of the affidavit. Beyond that 60-day period of time, the statute provides that you may rescind the Affidavit of Paternity and its contents only upon a showing of fraud, duress, or a material mistake of fact.
The issue in this case is not the fatherhood of the child. The issue in this ease is whether there is the presence of fraud, mistake, or duress that would justify the rescission of an Affidavit signed by you and acknowledged to be signed [310]*310by the defendant wherein he confesses to the paternity of these two children.
There is no dispute that the mother and the defendant executed these documents. There is no suggestion of the presence of any fraud or any duress at the time they executed the document.
There is testimony from the mother before the Court that she advised the defendant prior, seven months actually, prior to the birth of the children that he was not the biological father. That’s interesting but irrelevant. It’s irrelevant because the defendant armed with whatever knowledge he had chose to voluntarily execute an affidavit establishing him as the father of these children. We have heard nothing in this record and before this Court today that would even broach the subject of fraud, duress or material mistake of fact ....
We don’t slip in and slip out. You were clearly — you meaning, both mother and father, were clearly advised, don’t sign if you have a doubt. You can get assistance if you want because you don’t understand what you’re about to sign. But the moment you affix your pen to that paper and sign your name, you have obligated yourself to these children. And it is the finding of this Court that there is no fraud, duress, or mistake of material fact that would justify the rescission of the Affidavits of Parentage properly executed. These are your children by law, and that’s the end of the story.
Although the dissent argues that res judicata would not apply because genetic testing was not a specific claim in issue, Mr. Davis’s suit in 2013 for paternity testing to challenge the finding of paternity was barred, either under claim preclusion 3 or issue preclusion,4 because the issue was litigated in 2011.
[311]*311In a case analogous to the instant case, Hardy v. Hardy, 2011 Ark. 82, 380 S.W.3d 354 (2011), Mr. Hardy sought to set aside a divorce decree, which included provisions addressing child custody and his support of the children, on a theory of fraud. In the divorce proceedings, his wife’s complaint alleged that two children had been born of the marriage. Id. at 355. Mr. Hardy denied paternity of one of the children who had been conceived prior to, but born during, the marriage, and asked for a paternity test. Id. The trial court denied Mr. Hardy’s request for a paternity test, awarded him visitation, and ordered him to pay child support. Id. at 358. Mr. Hardy did not appeal from “the denial of his motion for paternity testing or from the divorce decree that required him to make child-support payments for [the child].” Id.
Mr. Hardy, however, years later, moved to set aside the divorce decree, arguing that he was not the father of the child based on a paternity test he had commissioned. Id. The trial court denied Mr. Hardy’s motion for declaratory judgment, and Mr. Hardy appealed, arguing that res judicata did not bar the second proceeding because the divorce proceeding did not involve “an express finding that he was the father of [the child].” Id. The Arkansas Supreme Court determined, as we do here with respect to Mr. Davis, that Mr. Hardy’s relitigation of the issue of paternity was barred by the claim preclusion aspect of res judicata because the “case is based on the same events as the subject matter of the previous lawsuit.” Id. at 358. The court reasoned that, “the issue of paternity was clearly litigated in the divorce proceeding”, there was a final judgment and Mr. Hardy’s failure to appeal the rulings in the divorce proceeding “foreclose^] his present collateral attack upon the finding of paternity.” Id. at 358-60.
[312]*312We, however, did not take this case to address res judicata, but, rather, to determine whether a paternity test is mandated when “demanded” four years after the birth of twins by a father who had executed an affidavit of parentage when the children were bom.
When Mr. Davis executed the Affidavit of Parentage, Section 5-1028 of the Family Law Article of the Maryland Code (1984, 2006 Repl. Vol.)5 governed and provided then, as it does now, that:
(a) An unmarried father and mother shall be provided an opportunity to execute an affidavit of parentage in the manner provided under § 4-208 of the Health — General Article.
(b) The affidavit shall be completed on a standardized form developed by the Department.
(c)(1) The completed affidavit of parentage form shall contain:
(i) in ten point boldface type a statement that the affidavit is a legal document and constitutes a legal finding of paternity;
(ii) the full name and the place and date of birth of the child;
(iii) the full name of the attesting father of the child;
(iv) the full name of the attesting mother of the child;
(v) the signatures of the father and the mother of the child attesting, under penalty of perjury, that the information provided on the affidavit is true and correct;
(vi) a statement by the mother consenting to the assertion of paternity and acknowledging that her cosignatory is the only possible father;
(vii) the Social Security numbers provided by each of the parents.
[313]*313(2) Before completing an affidavit of parentage form, the unmarried mother and the father shall be advised orally and in writing of the legal consequences of executing the affidavit and of the benefit of seeking legal counsel.
(d)(1) An executed affidavit of parentage constitutes a legal finding of paternity, subject to the right of any signatory to rescind the affidavit:
(1) in writing within 60 days after execution of the affidavit; or
(ii) in a judicial proceeding relating to the child:
1. in which the signatory is a party; and
2. that occurs before the expiration of the 60-day period.
(2)(i) After the expiration of the 60-day period, an executed affidavit of parentage may be challenged in court only on the basis of fraud, duress, or material mistake of fact.
(ii) The burden of proof shall be on the challenger to show fraud, duress, or material mistake of fact.
(iii) The legal responsibilities of any signatory arising from the affidavit, including child support obligations, may not be suspended during the challenge, except for good cause shown.
(e) The Administration shall prepare written information to be furnished to unmarried mothers under § 4-208 of the Health — General Article concerning the benefits of having the paternity of their children established, including the availability of child support enforcement services.
(f) The Department shall make the standardized affidavit forms available to all hospitals in the State.
(g) The Secretary, in consultation with the Department of Health and Mental Hygiene and the Maryland Hospital Association, shall adopt regulations governing the provisions of this section and § 4-208 of the Health — General Article.
The Affidavit of Parentage executed by Mr. Davis and the mother of the twin boys in the hospital two days after the [314]*314twins were born6 was on a form developed by the Department of Health and Mental Hygiene; its front, in full, recited the following:
Rights and Responsibilities
1. You have a right to obtain genetic testing. If you have any doubts as to the paternity of this child, you should request genetic testing before signing the Affidavit. If you would like more information about genetic testing, please call the Maryland Child Support Enforcement Administration at (410) 767-7034.
2. A complete and signed Affidavit of Parentage creates a legal finding of paternity. No further legal action is required to establish paternity. The father’s name will be placed on the child’s birth certificates.
3. The legal parents of the minor child are the joint natural guardians of their minor child. This means that both parents are jointly responsible for the support of their child. It also means that the child will be able to benefit from the parents’ health care coverage, receive inheritance, or receive Social Security or Veterans’ dependent or surviv- or benefits, if eligible.
4. Once this Affidavit is signed by both parties, the father will have equal rights to custody of the child. If a dispute [315]*315arises concerning issues of custody, visitation and child support, a court may use this Affidavit as evidence to resolve the dispute.
5. The personal information requested is required to establish paternity and/or to enable the Division of Vital Records to contact a parent in the event that the information provided on the Affidavit is insufficient.
6. The Affidavit will be filed with the Division of Vital Records, and will be available upon request to the parents, the legal guardian, and the Child Support Enforcement Administration. The information provided in the Affidavit may be used by the Child Support Enforcement Administration to assist in providing child support services to either parent.
7. The legal finding of paternity, established by completion of the Affidavit, can be reversed only if:
a. Within 60 days of signing, either party named in the Affidavit signs a written rescission. (You may obtain a rescission form by calling the Maryland Department of Health and Mental Hygiene, Division of Vital Records at 410-764-3182);
b. Within 60 days of signing, either party named in the Affidavit appears in court in a proceeding related to the child and informs the court of his or her decision to rescind; or
c. After the expiration of the 60 day period, a court orders a rescission after the party challenging the Affidavit proves fraud, duress or material mistake of fact.
8. Rescission of the Affidavit will terminate the father/child relationship, but court action will be necessary to remove the man’s name from the birth certificate.
9. If you challenge the Affidavit in court after the 60 day period, your legal responsibilities for the child, including child support obligations, will continue unless and until a court relieves you of those responsibilities.
The reverse side of the affidavit contained additional statements, which included:
[316]*3161. A complete Affidavit of Parentage is a legal document and constitutes a legal finding of paternity.
2. Completion of the Affidavit is voluntary. Do not complete this Affidavit until you have read or have had read to you, the instructions for completion and the notice regarding your rights and responsibilities.
3. The Affidavit may not be signed by the biological mother if she was legally married at the time of conception or birth of the child. The Affidavit may be signed by the father regardless of his marital status.
4. If either of you is not sure that the man signing the Affidavit is the biological father of the child, you should not complete the Affidavit at this time. You should first have a genetic test. Genetic testing can provide certainty if you have any doubts regarding the parentage of the child.
5. If you are under the age of eighteen (18), you may complete the Affidavit without the permission of an adult or legal guardian. You may want to seek the advice of a parent or legal guardian before signing this form.
6. This Affidavit creates legal rights and obligations relating to your child, and may impact custody, child support and visitation. Therefore, it may be beneficial to talk to a lawyer before signing the Affidavit.
(Emphasis in original). The form, thereafter, contained Mr. Davis’s name, address, date of birth, social security number, phone number, and his signature; printed above his signature were the following statements:
I acknowledge that I am the natural father of the child named above. I solemnly affirm under penalties of perjury that the contents of this affidavit are true and correct to the best of my knowledge, information and belief. I understand that this affidavit will establish paternity of the child and will authorize the entry of my name on the child’s birth certificate. I have read or had read to me the notice regarding the legal rights and obligations resulting from acknowledging paternity. I understand that I am free to refuse to sign this admission of paternity.
[317]*317The mother’s signature appears on the form under a similar advisement.
Mr. Davis’s Affidavit of Parentage, thus, notified him of the creation of legal rights and obligations. Pursuant to Section 5-1028 of the Family Law Article, Mr. Davis did not, however, rescind the affidavit within 60 days of its execution, nor did he appeal the 2011 judgment that determined that the affidavit of parentage was not procured through fraud, duress or material mistake of fact.
Mr. Davis, nevertheless, argues that he is entitled to a blood or genetic test as a result of his attempt to modify his paternity attestation, pursuant to our holding in Langston v. Riffe, 359 Md. 396, 754 A.2d 389 (2000), which involved declarations of paternity entered by the circuit court and the effect of Section 5-1038 of the Family Law Article when a putative father requests modification or abdication of the order. Section 5-1038 states:
(a)(1) Except as provided in paragraph (2) of this subsection, a declaration of paternity in an order is final.
(2)(i) A declaration of paternity may be modified or set aside:
1. in the manner and to the extent that any order or decree of an equity court is subject to the revisory power of the court under any law, rule, or established principle of practice and procedure in equity; or
2. if a blood or genetic test done in accordance with § 5-1029[7] of this subtitle establishes the exclusion of the individual named as the father in the order.
[318]*318(ii) Notwithstanding subparagraph (i) of this paragraph, a declaration of paternity may not be modified or set aside if the individual named in the order acknowledged paternity knowing he was not the father.
(b) Except for a declaration of paternity, the court may modify or set aside any order or part of an order under this subtitle as the court considers just and proper in light of the circumstances and in the best interests of the child.
Essentially, Mr. Davis urges that his attestation of paternity under Section 5-1028 is equivalent to a declaration of paternity entered by a circuit court under Section 5-1038 so that he is entitled to a blood or genetic test. The Bureau, conversely, argues that there are significant distinctions between the statutory sections, evidenced by their plain language and history. The Court of Special Appeals concurred with the Bureau when it stated:
We agree with the trial court that the plain language of the statutes shows that the only way for [Mr. Davis] to set aside the finding of paternity established by his affidavit of parentage under FL § 5-1028 is fraud, duress, or material mistake of fact, and not by a blood test as requested by [Mr. Davis].
Davis v. Wicomico County Bureau of Support Enforcement, 222 Md.App. 230, 244, 112 A.3d 1024, 1032 (2015).
The plain language of Sections 5-1028 and 5-1038 differs significantly. Most importantly, Section 5-1028 permits rescission of the affidavit of parentage only “on the basis of fraud, duress, or material mistake of fact.” To permit Mr. [319]*319Davis to pursue blood or genetic testing in the face of the self-limiting language totally eviscerates the word “only.” We, however, augment plain meaning analysis with the legislative history of the two statutes, which cements our conclusion that Mr. Davis cannot seek blood or genetic testing.
The historical origins of Section 5-1038 emanate from criminal statutes regarding bastardy and fornication, which, as early as 1781, provided:
Be it enacted, by the general assembly of Maryland, that from and after the end of this present session of assembly, it shall and may be lawful for any justice of the peace within this state, as often as he shall be informed of any female person having an illegitimate child, to issue his warrant to the constable of the hundred in which such person resides, who is hereby required to carry such person before some justice of the peace of the county, who shall call on her for security to indemnify the county from any charge that may accrue by means of such child, and, upon neglect or refusal, to commit her to the custody of the sheriff of the county, to be by him safely kept until she shall give such security, but in case she shall on oath discover the father, then the said justice is hereby required to discharge her from such warrant, and directed to call such father, if a resident of the county, before him, and shall cause him to give security in the sum of thirty pounds current money, to indemnify the county from all charges that may arise for the maintenance of such child; but in case the father be a resident of any other county within this state, then the justice shall transmit, under his hand and seal, a copy of the proceedings in such case had, and the justices to whom the said proceedings shall be sent, shall forthwith proceed against the father in manner and form as is before directed.
Provided always, that in case any person charged with being the father of a bastard child should think himself aggrieved by the judgment aforesaid, it shall and may be lawful for the said justice, and he is hereby required, to cause such person to enter into recognizance for his appearance at the next county court; and the justices of the said county court are [320]*320hereby directed to take cognizance thereof, and such proceedings, shall thereupon be had as in other criminal cases; and if the person so charged be found guilty by the verdict of a jury, the court shall immediately order such person to give security to indemnify the county from any charges that may accrue for the maintenance of the said child; and if he shall neglect or refuse to give such security, he shall be committed to the custody of the sheriff until he comply; and any person swearing falsely in the premises shall suffer the same pains and penalties as persons guilty of willful and corrupt perjury.
1781 Maryland Laws, Chapter 13. Essentially, the mother of an illegitimate child was “arrested” and called upon to support the child, or in the alternative to identify the father, who was required to provide support or be successful in defeating the paternity claim after trial.
Bastardy proceedings continued until the early 1960s when the Commission to Study Problems of Illegitimacy among the Recipients of Public Welfare Monies in the Program for Aid to Dependent Children explored how to facilitate both the emotional and financial support of illegitimate children. The recommendations to the Legislature included the rejection of bastardy laws,8 which had survived since 1781, as well as the adoption of procedures to establish paternity, which would result in court orders after trial or after a settlement between the parties without the father having to admit paternity. Final Report of the Commission on the Problems of Illegitimacy 22-24 (December 6, 1961). Some of the pertinent language adopted by the Legislature in 1963 included the following:
66B
(a) Except as hereinafter provided, every bill or petition filed pursuant to Section 66 of this Article with respect to an illegitimate child shall be supported by the oath of the woman who is pregnant with or has been delivered of such [321]*321child, whether or not she is a formal party to said proceedings. If the woman is dead or otherwise physically or mentally incapable of making said oath or is she refuses to become the complainant or petitioner or to disclose the father of the child or to make such oath, the bill or petition may be filed without an oath, but the fact of the pregnancy or birth shall be verified by the complainant or petitioner and the woman if living, shall be made a party defendant.
(b) No bill or petition shall be filed or received by the Clerk of the Court unless there is attached thereto the consent or authorization of the State’s Attorney of the county or city where the same is to be filed, unless the Court directs otherwise after being satisfied by such affidavits and testimony as the Court deems sufficient that the complaint is bona fide and meritorious.
1963 Maryland Laws, Chapter 722. After a petition was filed, the court would hold a hearing in which the complainant had the burden of establishing that the putative father was in fact the father:
66F
(b) At any time after the birth of the child a hearing shall be held by the Court in which the bill or petition is filed without a jury, unless the defendant alleged to be the father of the child elects a jury trial as hereinafter provided. Both the mother and the putative father are competent to testify, but the defendant alleged to be the putative father shall not be compelled to give evidence and the burden is upon the petitioner or complainant to establish by the weight of evidence required in other civil cases, that the defendant is the father of the child or children in question ...
1963 Maryland Laws, Chapter 722. The court was mandated to order the parties to submit to blood tests to determine whether the putative father could be excluded as the father, upon request by the putative father or upon the court’s own motion:
66G
[322]*322The Court, upon motion of the defendant alleged to be the putative father, or upon its own motion, shall order the mother and the child, as well as the defendant to submit to such blood tests as may be deemed necessary to determine whether or not the defendant can be excluded as being the father of the child____
1963 Maryland Laws, Chapter 722.
Once a paternity finding was entered, Section 66H(a) mandated that the Court declare “the defendant to be the father” and order him to pay child support for the maintenance of the child:
66H
(a) If the finding of the Court or jury, as the case may be, be against the defendant alleged to be the putative father, the Court shall pass an order declaring the defendant to be the father of said child and providing for the support and maintenance of the child. Such order shall specify the sum to be paid by the defendant weekly or otherwise until the child reaches the age of 21 years, dies, marries, or becomes self-supporting, which event first occurs; provided, that in any case where said child, having reached 21 years of age, is destitute of means and unable to support himself by reason of mental or physical infirmity, the Court shall have power to require payments to be made or continued during the continuance of such mental or physical infirmity. In addition to providing for the support and maintenance of the child, the order also may require the defendant to pay all or any part of the mother’s medical and hospital expense for her pregnancy, confinement, and recovery, and for the funeral expenses if the child has died or dies; and in addition thereto, may award counsel fees to the attorney representing the complainant or petitioner....
1963 Maryland Laws, Chapter 722. Section 66H(b) included other provisions to benefit the emotional well-being of the child:
[323]*323(b) The Court may include in the order any other provision, directed against any party to the proceeding, pertaining to the custody and guardianship of the child, visitation privileges with the child, the furnishing of bond, remaining in the State of Maryland, reporting changes of address, or any other matter which may be for the general welfare and best interests of the child, to the same extent and as fully as if the child were a legitimate child, all in accordance with the inherent jurisdiction of courts of equity over minors and the jurisdiction and power conferred by Section 66 of this Article and any provision of this subtitle.
The declaration of paternity could not be entered without due process. The order was a final order and subject only to the revisory power of the Court as provided by “statute, rule of court, or the established principals of practice and procedure in equity”:
(e) No order shall be entered against any person under this subtitle unless the person is or shall have been made a party to the proceedings and after reasonable notice to such party and an opportunity to be heard.
* ❖ X
(g) A declaration of paternity contained in any order is final and not subject to the revisory power of the Court except in the manner and to the extent that any other order or decree of a court of equity in this State may be subject to the revisory power of the Court by virtue of any statute, rule of court, or the established principals of practice and procedure in equity. All other orders or parts of orders in the proceedings are subject to the further order of the Court, and the Court, from time to time thereafter, may annul, vary or modify the orders as to the Court may seem just and proper in the light of the then existing circumstances and in the best interests of the child or children involved [324]*324therein and also in accordance with the power of modification as provided in Section 66 of this Article.
Section 66L recognized the efficacy of a settlement entered into by the alleged father of a child either before or after the filing of a petition to establish paternity. The settlement would incorporate terms for the child’s support and maintenance, which, after approval by the court, were to be incorporated in an order. Significantly, the alleged father did not have to admit paternity to enter into the agreement:
66L
Either before or after the filing of a bill or petition to establish paternity and to charge the putative father of an illegitimate child or children with his or their support and maintenance, the person alleged to be the father of the child or children, whether he admits or denies paternity, may propose to make a settlement with respect to his or their support and maintenance, either in a lump sum, installments, or otherwise. If the complainant or petitioner agrees to accept the settlement and the State’s Attorney is satisfied that the amount and terms of the settlement are fair and reasonable and that the complainant or petitioner has been properly advised in the premises and is competent to accept the settlement, an agreement shall be prepared and duly executed and submitted to the Court for approval. In the event the Court approves the agreement, the terms thereof shall be incorporated in an order to be passed by the Court, which order shall be enforceable in all respects and to the same extent as any other order passed after a hearing.
All of the cited provisions were enacted, among others, and ultimately included in the codification of Article 16 of the Annotated Code of Maryland and entitled “Paternity Proceedings.” Eventually, as part of the ongoing code revision process, in 1984, the provisions of Article 16 were recodified, without substantive change, as Sections 5-1001 et seq. of the [325]*325Family Law Article. See 1984 Maryland Laws, Chapter 296. Section 66H, specifically, was divided and recodified as Sections 5-1035, 5-1037 and 5-1038 of the Family Law Article. Section 66L became Section 5-1016 of the Family Law Article.
Section 5-1038 was amended in 1995 9 to permit a court to set aside or modify a declaration of paternity “in the manner and to the extent that any order or decree of an equity court is subject to the revisory power of the court” or “if a blood or genetic test done in accordance with § 5-1029” established the definite exclusion of the man named as the father in the order. The amendment also included the provision that “a declaration of paternity may not be modified or set aside if the individual named in the order acknowledged paternity knowing he was not the father.”
In Langston v. Riffe, 359 Md. 396, 754 A.2d 389 (2000), we had occasion to determine that the 1995 amendment should be applied retroactively. We also concluded in Langston that a putative father seeking a revision of a paternity order under Section 5-1038 could only do so were he afforded blood or genetic testing.
Langston had involved three paternity cases involving two fathers, Tyrone W. and William Carl Langston. Tyrone W. had entered into a paternity agreement with Danielle R. in which he acknowledged that he was the father of T.R., while Mr. Langston had entered into separate consent decrees of paternity for two children of two different mothers, although paternity had not been established by blood or genetic testing. The three paternity agreements led to the entry of three declarations of paternity in the circuit court, which subsequently led to the entry of orders of child support against Tyrone W. and Mr. Langston. Subsequently, Tyrone filed a [326]*326Complaint to Set Aside Declaration of Paternity, pursuant to Section 5-1038(a)(2)(i)2 of the Family Law Article, alleging that he was not the father of T.R.
In one of the two paternity cases involving Langston, the Circuit Court for Harford County ordered a blood test upon the request of the Harford County Department of Social Services, which was unaware that a declaration of paternity had been entered previously in the Circuit Court for Baltimore City. When the results of the blood test excluded Mr. Langston as the biological father, he filed a complaint to set aside the paternity declaration based on Section 5 — 1038(a)(2)(i)2 of the Family Law Article. In the second case, ultimately consolidated with the first, a show cause order had been issued to Mr. Langston for failure to pay child support.
Langston v. Riffe, then, presented us with the issue of whether declarations of paternity, based on a paternity agreement, as well as two consent decrees, could be set aside,10 It was our decision in Langston to set aside the paternity declarations but, most especially our determination that “a blood or genetic test is to be triggered automatically when any party, including the putative father, moves to have testing conducted”, Langston, 359 Md. at 425, 754 A.2d at 404, upon which Mr. Davis relies to pursue a paternity test.
Mr. Davis’s reliance on Langston, however, is misplaced, because the statute governing affidavits of parentage, Section 5-1028, has a significantly different narrative rooted in federal mandates than the governing statute in Langston, Section 5-1038. The origins of Section 5-1028 can be found in the federal Omnibus Budget Reconciliation Act of 1993, which mandated that every state, in order to continue to receive [327]*327federal funds, establish a method by which unmarried fathers could voluntarily acknowledge paternity “during the period immediately before or after the birth of a child.” Pub.L. No. 103-66, § 13721, 107 Stat. 659 (1993), codified at 42 U.S.C. 666(a)(5).11 Congress had “previously tried to make evasion of paternity more difficult for non-custodial fathers”, and the voluntary paternity acknowledgment programs mandated by the Omnibus Budget Reconciliation Act were initiated to take advantage of the “magic moment” immediately after birth when “many unmarried fathers visit their children in the hospital — ”12 Pamela C. Ovwigho Catherine E. Born, & Shafali Srivastava, Maryland’s Paternity Acknowledgment Program: Participant Entries into the Public Child Support and Welfare Systems, Family Welfare Research and Training Group, 6-7 (October 2002), http://www.familywelfare. umaryland.edu/reports/ihoptanf.pdf [https://perma.cc/363W-8 YUC].13 The theory behind encouraging affidavits executed in [328]*328the “magic moment” was that “unwed fathers are typically more willing to acknowledge paternity shortly after the child’s birth, but that their willingness to do so usually subsides as the child grows older.” Id. at 7. Not only were financial costs of concern, however, but it was more likely that an earlier paternity acknowledgment would result in the child having “access to more emotional/psychological, social entitlement and financial resources than their peers without legal fathers.” Id. at 6. Initially, the Omnibus Budget Reconciliation Act, significantly, provided that a voluntary acknowledgment of paternity created a rebuttable presumption of paternity or, at the state’s option, a conclusive presumption of paternity. Pub.L. No. 103-66, § 13721, 107 Stat. 659 (1993).
In the same year, the Maryland General Assembly enacted Chapter 197 of the Maryland Laws of 1993, which originated as House Bill 459 (“H.B. 459”) and Senate Bill 350 (“S.B. 350”), and later became codified as Section 5-1028 of the Family Law Article. Chapter 197 provided:
(a) An unmarried father and mother shall be provided an opportunity to execute an affidavit of parentage in the manner provided under § 4-208 of the Health-General Article.
(b) The affidavit shall be completed on a standardized form developed by the department.
(c) The completed affidavit of parentage form shall contain:
(1) in ten point bold face type a statement that the affidavit is a legal document and constitutes rebuttable presumption of parentage in a paternity proceeding;
[329]*329(2) the full name and the place and date of birth of the child;
(3) the full name of the attesting father of the child;
(4) the full name of the attesting mother of the child;
(5) the signatures of the father and the mother of the child attesting, under penalty of perjury, that the information provided on the affidavit is true and correct;
(6) a statement by the mother consenting to the assertion of paternity and acknowledging that her cosignatory is the only possible father;
(7) a statement by the father that he is the natural father of the child[ ]
(8) the social security numbers provided by each of the parents.
(d) An executed affidavit of parentage constitutes a rebuttable presumption of parentage in a paternity proceeding.
(e) The Administration shall prepare written information to be furnished to unmarried mothers under § 4-208 of the Health — General Article concerning the benefits of having the paternity of their children established, including the availability of child support enforcement services.
(f) The Department shall make the standardized affidavit forms available to all hospitals in the state.
(g) The Secretary, in consultation with the Department of Health and Mental Hygiene and the Maryland Hospital Association, shall adopt regulations governing the provisions of this section and § 4-208 of the Health — General Article.
The purpose of the enactment of Chapter 197 was to take advantage of federal funding through the federal Omnibus Budget Reconciliation Act of 1993 and to “accelerate the collection of child support payments by three months.” See Revised Fiscal Note, Department of Fiscal Services, Bill File S.B. 350. Its supporters also posited that, “[establishing paternity at birth will eliminate the need for court ordered paternity establishment, thus releasing the court from the costly and time consuming responsibility of hearing these [330]*330cases.” Testimony of Meg Sollenberger of the Department of Human Resources, House Judiciary Committee.
Importantly, when Chapter 197 was enacted, a “rebuttable presumption of paternity” arose after the father completed the affidavit, in which he attested to his parentage. The rebuttable presumption, according to supporters of the bills, “could be set aside should blood or DNA test or other evidence show paternity is unlikely.” Letter to House Judiciary Committee, Bill File, S.B. 350. Chapter 197 was subsequently codified as Section 5-1028 of the Family Law Article.
Section 5-1028 importantly, however, was amended in 1997 to remove the rebuttable presumption of paternity and to replace that presumption with a more restricted ability to challenge the acknowledgment, temporally, 60 days, and thereafter, only upon proof of fraud, duress, or material mistake of fact. The amendment was enacted to adhere to federal mandates under the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996.14 The Personal Re[331]*331sponsibility and Work Opportunity Reconciliation Act of 1996 replaced the federal Aid to Families with Dependent Children program with a program of block grants to states for Temporary Assistance for Needy Families (“TANF”). A state’s participation in the Program is voluntary, although when a State chooses to participate it must comply with the Social Security Act’s Title IV-D’s provisions regarding child support enforcement, which requires states to establish procedures for a voluntary paternity acknowledgment that, when executed, is a “legal finding of paternity”:
(C) VOLUNTARY PATERNITY ACKNOWLEDGMENT.—
(i) Simple Civil Process
Procedures for a simple civil process for voluntarily acknowledging paternity under which the State must provide that, before a mother and a putative father can sign an acknowledgment of paternity, the mother and the putative father must be given notice, orally and in writing, of the alternatives to, the legal consequences of, and the rights (including, if one parent is a minor, any rights afforded due to minority status) and responsibilities that arise from, signing the acknowledgment.
(D)(ii) Legal Finding of Paternity
Procedures under which a signed voluntary acknowledgment of paternity is considered a legal finding of paternity, subject to the right of any signatory to rescind the acknowledgment within the earlier of—
(I) 60 days; or
[332]*332(II) the date of an administrative or judicial proceeding relating to the child (including a proceeding to establish a support order) in which the signatory is a party.
(iii) Contest
Procedures under which, after the 60-day period referred to in clause (ii), a signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger, and under which the legal responsibility (including child support obligations) of any signatory arising from the acknowledgment may not be suspended during the challenge, except for good cause shown.
42 U.S.C. 666 (1996).
In Maryland, House Bill 1074 and Senate Bill 636 were introduced in 1997 in order to comply with the federal mandate. The Floor Report associated with Senate Bill 636 recognized that the “legal finding of paternity” standard replaced the earlier rebuttable presumption language:
Senate Bill 636 makes a number of changes in State law that are designed to bring Maryland into compliance with new federal child support enforcement requirements. These changes include the following: ... [establishing that an affidavit of parentage constitutes a legal finding of paternity, rather than a rebuttable presumption; [allowing a legal finding of paternity established by affidavit to be set aside only if it is rescinded within a specific time period and the party challenging it proves that the affidavit was executed because of fraud, duress, or a material mistake of fact
Enactment of Chapter 609 of the Laws of Maryland of 1997 as codified resulted in the version of Section 5-1028, which at the time Mr. Davis executed his affidavit (and now), provided:
(a) An unmarried father and mother shall be provided an opportunity to execute an affidavit of parentage in the manner provided under § 4-208 of the Health-General Article.
[333]*333(b) The affidavit shall be completed on a standardized form developed by the Department.
(e)(1) The completed affidavit of parentage form shall contain:
(1) in ten point boldface type a statement that the affidavit is a legal document and constitutes a legal finding of paternity;
(ii) the full name and the place and date of birth of the child;
(iii) the full name of the attesting father of the child;
(iv) the full name of the attesting mother of the child;
(v) the signatures of the father and the mother of the child attesting, under penalty of perjury, that the information provided on the affidavit is true and correct;
(vi) a statement by the mother consenting to the assertion of paternity and acknowledging that her cosignatory is the only possible father;
(vii) the Social Security numbers provided by each of the parents.
(2) Before completing an affidavit of parentage form, the unmarried mother and the father shall be advised orally and in writing of the legal consequences of executing the affidavit and of the benefit of seeking legal counsel.
(d)(1) An executed affidavit of parentage constitutes a legal finding of paternity, subject to the right of any signatory to rescind the affidavit:
(1) in writing within 60 days after execution of the affidavit; or
(ii) in a judicial proceeding relating to the child:
1. in which the signatory is a party; and
2. that occurs before the expiration of the 60-day period.
(2)(i) After the expiration of the 60-day period, an executed affidavit of parentage may be challenged in court only on the basis of fraud, duress, or material mistake of fact.
[334]*334(ii) The burden of proof shall be on the challenger to show fraud, duress, or material mistake of fact.
(iii) The legal responsibilities of any signatory arising from the affidavit, including child support obligations, may not be suspended during the challenge, except for good cause shown.
(e) The Administration shall prepare written information to be furnished to unmarried mothers under § 4-208 of the Health — General Article concerning the benefits of having the paternity of their children established, including the availability of child support enforcement services.
(f) The Department shall make the standardized affidavit forms available to all hospitals in the State.
(g) The Secretary, in consultation with the Department of Health and Mental Hygiene and the Maryland Hospital Association, shall adopt regulations governing the provisions of this section and § 4-208 of the Health — General Article.
1997 Maryland Laws, Chapter 609.
The legislative history of both Sections 5-1038 and 5-1028, thus, reflects that Section 5-1038 was amended in 1995 to weaken the finality of a paternity declaration even after a putative father had executed a paternity agreement, which did not require him to admit to paternity. The General Assembly, however, amended Section 5-1028 in 1997 to eviscerate the rebuttable presumption and replace it with the more constricting “legal finding of paternity” after the father executes an affidavit of parentage, thereby strengthening the finality of the affidavit of parentage. The basis of the latter was to comport with federal funding mandates, and most importantly, to limit the ability of a father who voluntarily acknowledged his paternity to thereafter, possibly years later, as in the instant case, obtain post-judgment blood or genetic testing.15
[335]*335The limitations of a father’s ability to challenge an affidavit of paternity only on the grounds of fraud, duress, or material mistake of fact was recognized by the Court of Special Appeals in Burden v. Burden, 179 Md.App. 348, 945 A.2d 656 (2008). Our intermediate appellate court held that the father could not disestablish paternity when his signing of the Affidavit did not involve fraud, duress, or material mistake of fact. Id. at 369, 945 A.2d at 669. Our conclusion also comports with the decision of the Supreme Court of Illinois in People ex rel. Dept. of Public Aid v. Smith, 212 Ill.2d 389, 289 Ill.Dec. 1, 818 N.E.2d 1204 (2004), when that court, interpreting the same language as our Section 5-1028, ruled out a challenge when a father, who had executed an affidavit of paternity, actually found out that he was not the father; the court was emphatic that “a man who voluntarily acknowledges paternity can later challenge the voluntariness of the acknowledgment if he can show that it was procured by fraud, duress, or material mistake of fact, but the Parentage Act does not allow him to challenge the conclusive presumption of paternity with con [336]*336trary evidence.” Id. 289 Ill.Dec. 1, 818 N.E.2d at 1213 (emphasis in original).
To conflate Sections 5-1038 and 5-1028, as Mr. Davis would have us do, violates the essence of Section 5-1028. It is clear that Sections 5-1028 and 5-1038 are not coterminous and that there are limited opportunities to challenge an Affidavit of Parentage under Section 5-1028, which Mr. Davis took but lost. Mr. Davis now is not entitled to a blood or genetic test to contest the parentage he established after execution of his Affidavit of Parentage.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.
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Cite This Page — Counsel Stack
135 A.3d 419, 447 Md. 302, 2016 Md. LEXIS 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-wicomico-county-bureau-md-2016.