Tandra S. v. Tyrone W.

ELDRIDGE, Judge,

dissenting.

The majority decides that the judgment in a paternity case may not be vacated absent a showing of “fraud, mistake, or irregularity,” under the narrow definition of those terms set forth in Maryland case law, even though scientific evidence is later obtained which conclusively establishes that an “adjudged father” is not in fact the biological father of the child.1 Although I would agree that a judgment ordinarily should not be set aside unless the strict requirements of Maryland Rule 2-535(b) have been met, a paternity action differs significantly from other adjudications and merits different treatment.

As the Court of Special Appeals pointed out in Case No. 157, the unique nature of paternity actions, and the need for some flexibility in such actions, was recognized by the General Assembly in the paternity statute. Maryland Code (1984, 1991 Repl.Vol.), § 5-1007 of the Family Law Article, provides that “[a]ny rule of court or statute that relates to procedure applies to a proceeding under this subtitle only to the extent that the rule or statute is ... (1) practical under the circumstances----” This statutory provision furnished ample authority for the circuit courts’ decisions in. both cases. I would affirm.2

*327In a paternity action, unlike other lawsuits, a court is called upon to declare a scientific, biological fact, namely whether a particular individual is the biological father of a given child. Most other types of lawsuits, however, require a court to decide upon the appropriate remedy in a particular situation based upon society’s rules applicable to human conduct. While the judgments in ordinary lawsuits often depend upon the judicial system’s ascertainment of historical facts, the typical judicial fact-finding process is quite different from what a court is asked to do in a paternity action.

Moreover, the scientific processes for determining fatherhood have been rapidly improving. In addition to the red blood cell antigen test (RBC), “the first level of genetic systems tested,” there are available tests such as the human leukocyte antigens system (HLA) and the red cell enzymes and serum proteins which may be used to produce a high rate of exclusion. United States Department of Health and Human Services, Paternity Establishment, at 61 (3d ed. 1990). The “HLA has a very high probability of exclusion (95%), which can be increased to approximately 99% when combined with other tests for red cell antigens and enzymes, and plasma protein systems.” Sidney B. Schatkin, Disputed Paternity Proceedings, § 11.04, at 11-48 (4th ed. 1976). In addition, DNA testing can provide even more reliable information “since no two people, aside from identical twins, have the same genetic composition.” Id. § 11B.01 at 11B--3. “ ‘[Disputing [DNA] technology is like disputing the law of gravity’ ”. Id. § 11B.01 at 11B-41. See also Debra Cassens Moss, DNA— The New Fingerprints, A.B.A.J. 66 (May 1, 1988) (“In the family law area, [DNA testing] means a woman suing for paternity can establish conclusively whether the respondent is the father”). It is absurd, in the face of incontrovertible scientific evidence, for a court to treat as binding, for the future, a patently erroneous declaration of biological fact.

*328A judgment of paternity has continuing ramifications uncharacteristic of the typical judgment rendered by a court. In addition to providing the basis for child support, a paternity determination affects, inter alia, inheritance rights, citizenship, and the child’s knowledge of his or her medical history. See Locklear v. Sampson, 478 So.2d 1113, 1115 (Fla.App.1985); Crowder v. Com. Ex. Rel. Gregory, 745 S.W.2d 149, 151 (Ky.Ct.App.1988). Thus, accurate determinations of paternity are critical, not simply because a child is entitled to financial support from his or her father, but also because a child may later be in need of a blood transfusion or an organ transplant from a compatible family member. A child may face decisions about marriage and childbearing based on the risk of passing on what the child believes are inherited conditions.

Similar ramifications are not usually associated with ordinary tort or contract litigation. In an automobile injury case, for example, a factfinder might decide that the traffic light was green when the plaintiffs car entered the intersection. If later it were irrefutably established that the light had been red, the consequences of foreclosing the matter because of the earlier judgment, which would simply involve the effect on the parties of the award or non-award of damages, are less compelling than the consequences of a paternity declaration.

Incidental to the resolution of the dispute between the mother and the putative father, a paternity judgment affects the interests of third parties to a greater extent than other judgments. A child has an independent interest in receiving financial support from his or her true parents. Furthermore, a child has an interest in knowing his or her true heritage for medical and psychological reasons, inheritance, and other purposes. Likewise, the natural father is entitled to an accurate determination of paternity, not just in order to uphold his parental obligations, but also for psychological and emotional reasons.

As previously mentioned, the General Assembly in the paternity statute itself recognized the unique nature of paternity actions and the need for flexibility in applying procedural *329rules to paternity actions. Section 5-1007 of the Family Law Article provides as follows:

Ҥ 5-1007. Inconsistent statutes or rules.
Any rule of court or statute that relates to procedure applies to a proceeding under this subtitle only to the extent that the rule or statute is:
(1) practical under the circumstances; and
(2) not inconsistent with this subtitle.”

Maryland Rule 2-535(b) is plainly a procedural rule which should be relaxed upon the type of showing that was made in these cases. Under the circumstances, it is not “practical” to apply Rule 2-535(b). Consequently, as the Court of Special Appeals held, § 5-1007 plainly authorized the decisions of the circuit courts in these two cases.

The majority opinion’s answer to the Court of Special Appeals’ reliance on § 5-1007 is simply to say that “[a] harsh result or an unfair decision is not equivalent to impracticality.” No explanation or reasoning is offered in support of the majority’s ipse dixit. It is reasonable to assume that harsh or unfair results, because of a rigid application of procedural rules, is exactly what the Legislature had in mind when it enacted § 5-1007. Moreover, it would certainly seem that requiring continuing adherence, by all persons, to an erroneous declaration of an objectively ascertainable scientific fact, is not “practical.”

The majority opinion also relies on § 5-1038(b) of the Family Law Article. The entire § 5-1038, however, provides as follows:

Ҥ 5-1038. Finality; modification.
(a) Declaration of paternity final.—Except 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, a declaration of paternity in an order is final.
(b) Other orders subject to modification.—Except for a declaration of paternity, the court may modify or set aside *330any 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.”

While today there are no separate “equity court[s]” and Rule 2-535(b) ordinarily applies to all actions in the same manner, the Legislature’s specific reference to “equity” in § 5-1038 indicates an intent that declarations of paternity be subject to revision based on equitable principles. The Court of Special Appeals in Case No. 157 pointed out that

Ҥ 5-1038(a) expands the revisory powers set forth in Rule 2-535 ... by allowing modification of a paternity decree to the extent that the decree is subject to established equity principles.
“ ‘It is a well established principle that courts of equity will not permit the forms of law to be made the instruments of injustice, but will interpose against parties attempting to avail themselves of the rigid rules of law for unfair purposes.’ Hyatt v. Romero, 190 Md. 500, 505 [58 A.2d 899] (1948). Appellants’ assertion, that the limitations set forth in Rule 2-535 ... preclude the modification of the decree, permits the forms of law to triumph over equity. To compel a person, who is not the father of a child, to continue paying support for that child when the child’s mother, the child’s biological father, and the alleged father agree on the issue of paternity, and the child’s birth certificate and name have been changed to reflect his true parentage, perpetuates injustice and defines common sense.”

In light of the basic differences between paternity judgments and the judgments in other types of lawsuits, the majority’s holding today, in the words of the Court of Special Appeals, “defies common sense.” Undoubtedly society has a strong interest in ending disputes at some point in time, and normally other interests must yield to the limitations on a court’s revisory powers. Nevertheless, a completely rigid adherence to the shibboleth that “in today’s highly litigious society, there must be some point in time when a judgment becomes final,” in the face of irrefutable scientific evidence *331that a particular individual did not father a given child, with all of the attendant ramifications of such decree, is absurd. Under the majority's view, presumably if the Provincial Court of Maryland in the 1600’s had issued a decree that the earth was flat, the absence of “fraud, mistake or irregularity,” as narrowly defined by this Court, would make that Provincial Court decree sacrosanct. Or, if Rule 2-535(b) were to be given extra-territorial effect, presumably the March 5, 1616, decree by a tribunal in Rome, aimed at Galileo Galilei, and declaring that Copernicanism is erroneous and that the planet earth is the center of the universe, would be given conclusive effect. Like the courts below, I do not believe that all common sense must be abandoned in the name of Rule 2-535(b).

Judge RAKER has authorized me to state that she concurs with the views expressed herein.

. In Case No. 144, the scientific evidence consisted of the blood tests ordered by the circuit court nearly two and one-half years after the paternity adjudication. The results of these tests excluded Tyrone as a potential father.

In Case No. 157, Vandella H., the mother of the child whose paternity was at issue, testified that she last had sexual relations with John S., the child’s adjudged father, approximately one year before her child was born. It is, I believe, scientifically well-established that human beings have a nine-month, not a twelve-month, period of gestation.

. Although the issue was not raised by any party, I also question the standing of the Attorney General of Maryland to file petitions for writs of certiorari in these two cases. The Attorney General’s lack of standing is a matter which this Court may appropriately notice sua sponte, *327and which should result in a dismissal of certiorari. See County Council v. Md. Reclamation, 328 Md. 229, 614 A.2d 78 (1992).