Walter v. Gunter

BELL, Chief Judge,

concurring.

In Langston v. Riffe, 359 Md. 396, 754 A.2d 389 (2000), this Court, in a four to three decision, held that Md.Code (1984, 1999 Repl. Vol.), § 5-1038(a) of the Family Law Article was enacted by the Legislature

“to be applied to all paternity cases, whenever initiated. Thus, anyone who has a paternity declaration entered against him prior to October 1, 1995, without blood and genetic testing, generally may initiate proceedings to modify or set aside that declaration under section 5-1038(a)(2)(i)2 of the Family Law Article. In those proceedings, the putative father may, by motion, request a blood or genetic test, pursuant to section 5-1029, in order to confirm or deny paternity, which is admissible in evidence under the provi*404sions of that statute. A determination of the best interests of the child in ordering the requested testing, or in the consideration of paternity, whether original or revised, is inappropriate. Our holding today applies only to proceedings to modify or set aside a paternity declaration; an attempt to modify or set aside any other order resulting from an original paternity declaration is governed by section 5-1038(b).”

359 Md. at 437, 754 A.2d at 411. I was one of the dissenters, registering my views “as forcefully as possible.” Id. at 459, 754 A.2d at 423. Today, we hold, and again it is a sharply divided Court, again a four-three margin, that a man who consented to a judgment of paternity, without taking a blood test, is not liable as a matter of law, for the child support arrearages accrued on that judgment once a blood test, obtained in accordance with the Riffe interpretation of § 5-1038(a), excluded him as the father of the child whose paternity he had admitted and, as a result of which, that judgment has been vacated. In this case, I join the majority and, indeed, provide the margin. Because the result in this case is a consequence of the decision in Riffe, in which I was so vociferous in my disagreement with the majority in that case, I write separately to explain my vote and its consistency.

Although a four to three decision on the bottom line, there were six judges who subscribed to the interpretation of § 5-1038(a)(2) set out in the majority opinion in Riffe. Two of the dissenters took the position that the section simply applied prospectively only. See 359 Md. at 460, 754 A.2d at 423 (Wilner, J. dissenting). Five judges, including me, see 359 Md. at 438, n. 1, 754 A.2d at 412 n. 1 (Bell, C.J. dissenting), believed that the intent of the Legislature was to have the statutory amendment, whether interpreted as I suggested or as the eventual majority espoused, apply retrospectively, not just to future cases. Although the majority engaged in a detailed and painstaking analysis of the retrospectivity issue, I did not join that debate, noting simply and concisely what I believed, and still believe, motivated the Legislature’s action and, thus, informed its intent with respect to others similarly *405situated: “I agree that the Legislature intended the amendment to be retroactive. Having acted with the dispatch that it did, it is inconceivable that it would intend that any meritorious case would be left without a remedy.” Id. Like the majority, I was convinced by the circumstances and the reasons given for the legislation that the Legislature was intent on avoiding a repetition of the situation that was presented in, or the perception that was generated by, Tandra S. v. Tyrone W., 336 Md. 303, 648 A.2d 439 (1994), the case that the legislation was designed to, and did, overrule.

In Tandra S., we held that the rule of finality was sacrosanct, prevailing over a blood test that excluded the putative father and the mother’s admission that the putative father was not the child’s father by changing the child’s name shortly after the paternity decree had been issued to that of a man, whom she identified as the child’s father, 336 Md. at 322-23, 648 A.2d at 448, and without regard to whether the adjudicated fathers acted in good faith or with ordinary diligence. Thus, the petitioners, who were excluded as fathers were not entitled to modification of the paternity judgments because the blood test results, however accurate scientifically,1 and the admission of the mother2 did not establish fraud, mistake or *406irregularity. It was to this rigidity, characterized as lacking common sense, and perceived unfairness to which the dissenters, initially, see 336 Md. at 329-31, 648 A.2d at 451-52 (Eldridge, J. dissenting), and the Legislature, later, reacted and which resulted in the amendment of § 5-1038(a) to its present form.

In their opinion, the dissenters castigated the majority for the rigidity of its analysis and the construction it gave § 5-1038, as well as for the unfairness that generated, concluding:

“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 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 that a particular individual did not father a given child, with *407all 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).”

Id. at 330-31, 648 A.2d at 452.

Judging from the presence of the above quoted portion of the dissenting opinion in the bill file, see 359 Md. at 412, 754 A.2d at 397, and the General Assembly’s emphasis on “a fairness issue at stake here,” described by one of the sponsors of the legislation as “the inequality exhibited in the recent publicized cases of 2 men who accepted paternity and child support only to discover they were not the biological father, yet had to continue support payments,” testimony of Senator Paula Hollinger before the House Judiciary Committee,3 the *408same focus apparently guided the General Assembly to overrule our decision in Tandra S. See 359 Md. at 412, 754 A.2d at 397. Clearly, the amendment of § 5-1038(a) was meant to overturn the result in that case.

Noting the likelihood that “the Legislature agreed with the various criticisms of Tandra S. in the media and with Judge Eldridge’s and Judge Raker’s claim that the decision defied ‘common sense,’ ” id. at 412-13, 754 A.2d at 397-98, the Riffe majority concluded that “it would equally abandon common sense to deny, once again, a putative father the ability to challenge a paternity declaration simply because he has the misfortune of having the declaration entered against him prior to October 1, 1995.” Id. With that analysis, I agreed, and still do agree. “Clearly,” as the Riffe majority stated, “the perceived injustices to putative fathers in situations similar to the putative fathers in the Tandra S. case could not be remedied by legislation with a strictly prospective effect.” 359 Md. at 412, 754 A.2d at 397.

Although accurately characterizing the issue to be decided in that case, i.e. “whether the changes implemented by Chapter 248 extend to paternity declarations entered prior to the effective date of the statute,” id. at 406, 754 A.2d at 394, the majority in Riffe proceeded to hold: “given the legislative history behind Chapter 248, ... the Legislature intended for blood or genetic tests to be made available, upon a motion, to any putative father seeking to challenge a paternity declaration previously entered against him in which such blood or genetic test evidence was not introduced.” Id. at 427-28, 754 A.2d at 406. It, consequently, gave the amendment quite a broad interpretation. By that interpretation, putative fathers were relieved from the effects of Tandra S. because the Legislature expanded the procedure for remedying the perceived problem by expanding the equitable grounds available for challenging a paternity judgment, by “providing putative *409fathers with an additional procedure or remedy to challenge prior paternity declarations.” Id. at 417-18, 754 A.2d at 400.

That is where the Riffe majority and I parted company. I would have given the subject amendment a narrow construction, only broad enough to answer the fairness, common sense and rigidity issues generated by Tandra S. See 359 Md. at 439-59, 754 A.2d at 412-23 (Bell, C.J. dissenting). Thus, to be entitled to modification under § 5-1038(a), I would have required the production, by the moving party, of the reliable evidence prescribed in that section, that the paternity judgment was in error, naming the wrong person as the father of the child who is its subject. I would not have expanded the equitable grounds for challenging paternity or assisted the moving party to gather the evidence necessary to challenge the judgment. Neither, in my view, was mandated by the amendment of § 5-1038(a). That section requires, I submitted, id. at 446, 754 A.2d at 416 (Bell, C.J. dissenting), as a prerequisite to the modification or setting aside of a paternity decree, reliable evidence sufficient to set aside other orders or decrees of an equity court, subsection (a)(2)(i)(l), or a blood or genetic test, “done in accordance with § 5-1029,” that excludes the person named in the order as the father. Subsection (a)(2)(i)(2). So interpreted, the amendment provides a mechanism, which, if properly applied, avoids the harsh result in Tandra S.

“Most assuredly, the amendment does not deal with entitlement of a person named in a paternity decree to a blood or genetic test under § 5-1029 or provide any support for the notion ... that blood or genetic tests may now be ordered on demand, in aid of a requested modification of a paternity order, for any, or no, reason, other than the uncertainty that the man may now have concerning his paternity of a child as to whom the court entered the paternity order.”

Id. at 446, 754 A.2d at 416 (Bell, C.J., dissenting).

That was my view then and it is my view now. Moreover, it is a view that had then, and has now, the advantage of *410implementing the Legislature’s desire to address a perceived inequity, while, at the same time, avoiding a wholesale disruption of the lives and best interests of children and the system established to promote their interests. It is, after all, the assistance given to those who would challenge the paternity decree after voluntarily agreeing to it and the numbers of those likely to seek such assistance that present the problem4 —only in the case of those who have amassed arrearages on a paternity decree that they voluntarily agreed to will the issue in this case arise. The numbers decline significantly when the blood, or other genetic test, is not an automatic entitlement just for the asking.

That said, if the six Judges who joined the Riffe decision are correct, the consequences to the system and to the young people who are affected cannot be avoided. It is the responsibility — a duty — of parents to support their children, Thrower v. State ex. rel. Bureau of Support Enforcement, 358 Md. 146, 159, 747 A.2d 634, 641 (2000); Middleton v. Middleton, 329 Md. 627, 631, 620 A.2d 1363, 1365 (1993); Carroll County v. Edelmann, 320 Md. 150, 170, 577 A.2d 14, 23 (1990), Knill v. Knill, 306 Md. 527, 531, 510 A.2d 546, 548 (1986); Bledsoe v. Bledsoe, 294 Md. 183, 193, 448 A.2d 353, 358-59 (1982); Kerr v. Kerr, 287 Md. 363, 367-368, 412 A.2d 1001, 1004 (1980); Brown v. Brown, 287 Md. 273, 281, 412 A.2d 396, 400 (1980); Rand v. Rand, 280 Md. 508, 510, 374 A.2d 900, 902 (1977); Speckler v. Speckler, 256 Md. 635, 637, 261 A.2d 466, 467; Johnson v. Johnson, 241 Md. 416, 419, 216 A.2d 914, 916 (1966); Bradford v. Futrell, 225 Md. 512, 518, 171 A.2d 493, 496, (1961); McCabe v. McCabe, 210 Md. 308, 314, 123 A.2d 447, 450 (1956); Kriedo v. Kriedo, 159 Md. 229-231, 150 A. 720, 721 (1930); Blades v. Szatai, 151 Md. 644, 647, 135 A. 841, *411842 (1927), not strangers who, when entering an agreement accepting the responsibility of parenthood, believed that they were parents. If, because of fairness and equity concerns, they are permitted, on whim, to look behind that agreement then, once it is determined that they are not the parents, the same, no, an even greater inequity or unfairness, results. The Legislature has decided, Riffe instructs, that the law is that post paternity decree blood tests may be had on demand by “fathers,” who have admitted to paternity and consented to a paternity decree. Otherwise, that case instructs, non-biological “fathers” would be required “to continue support payments,” with the resulting unfairness and assault on common sense. Neither equity nor common sense is furthered by a prospective only application of the § 5-1038(a) amendment. If it is inequitable, and defies common sense, for a non-biological “father” “to continue support payments” after his non-paternity has been determined conclusively, it is even more inequitable and downright unseemly to require that non-biological “father” to pay any arrearages that may have accrued under a decree that assumed he was the father and which, because of his exclusion, has been vacated. In addition to being as much continuing support payments as if the payments were required to be made currently — these payments were for the child’s support, after all — such a bifurcation would accentuate the unfairness and run contrary to not only common sense, but the law. Permitting a putative father to shed the title of father because the evidence proves that he is not, is simply a meaningless gesture if he must continue to discharge, or can be required to discharge, the responsibilities flowing from that title. Rather than overruling, and thus correcting, the Tandra S. decision, this perpetuates the worst of it without retaining the fiction which, at least, provided a basis for the obligation imposed and its discharge.

The bottom line is, whether the narrow interpretation I advocate is followed or the more expansive one that the Court adopted in Riffe, a result that requires a man whose paternity has been vacated because of scientific evidence proving that he did not father a child to continue to pay support for that child, *412albeit by way of arrearages accrued while the paternity decree was in effect, is even more inequitable and devoid of common sense than the decision that prompted the legislative action that is the basis for these proceedings. Aware of the Legislature’s concern for fairness and logic, I simply cannot, in conscience, embrace a result that does not even pay lip service to those concerns. That the system suffers by a logical and consistent application of the law, and children too, is a factor that I must assume the Legislature considered, especially after our decision in Riffe, and resolved, as it has not enacted legislation in response to Riffe. See generally, Prince George’s Co. v. Vieira, 340 Md. 651, 667 A.2d 898 (1995); Police Comm’r of Baltimore City v. Dowling, 281 Md. 412, 419, 379 A.2d 1007, 1011 (1977); Harden v. Mass Transit Admin., 277 Md. 399, 407, 354 A.2d 817, 821 (1976)(presuming the Legislature to have acted with respect to, full knowledge and information as to prior and existing law and legislation on the subject of the statute and the policy of the prior law).

. As to the blood tests, we stated:

“The blood tests, which the circuit court relied on in vacating the judgment, do not alter this result. Rule 2-535(b) provides a circuit court with very limited revisory powers. The results of the blood test did not change the unambiguous mandate that exists in the revisory rule. Therefore, the circuit court erred when it vacated the 1990 paternity judgment and left the child fatherless because, as the circuit court itself recognized, neither fraud, mistake, nor irregularity had occurred. The majority of decisions from other jurisdictions similarly reject attempts to reopen paternity judgments based on post-judgment blood tests.”

Tandra S. v. Tyrone W., 336 Md. 303, 320, 648 A.2d 439, 447 (1994).

. As to the admission by changing the child's name, the Court said:

"But this did not have the effect of nullifying the 1986 paternity judgment, which declared John to be the father; furthermore, it did not vest paternity in Randy. In regard to paternity and as to the parental relationship between John and the child, the name change was meaningless. See Carroll County v. Edelmann, 320 Md. 150, *406175-76, 577 A.2d 14 (1990) (a court has no authority to terminate a parental relationship other than through a decree of adoption or guardianship). Even if it was the mother’s intent to terminate John’s child support payments by changing her child's name, the result would be no different. In Stambaugh v. Child Support Enforcement Admin., 323 Md. 106, 591 A.2d 501 (1991), we made clear that one parent may not waive his or her child’s right to support from the other parent. Id. at 111-12, 591 A.2d 501. See also Stancill v. Stancill, 286 Md. 530, 535, 408 A.2d 1030 (1979) (a court may not be handcuffed in the exercise of its duty to act in the best interests of a child by any agreement between the parents). Therefore, the mother could not unilaterally release John from his support obligations by merely changing her child’s name. If the courts below concluded that the name change provided a basis for vacating the 1986 paternity judgment, we disagree.
"Moreover, if we were to uphold the lower court’s decision in this case, the ramifications could be potentially disastrous. For example, what if the mother in another five years changes her statement again and testifies that John is the father? Should a court at that juncture reinstate the original paternity judgment? In this regard, the policy of finality serves an important purpose — the parties understand their respective rights and need have no concern about future developments changing their rights.”

Tandra S., 336 Md. at 322-23, 648 A.2d at 448.

. Senator Hollinger’s testimony was as follows:

"I am not here today to testify for a bill dealing with women’s rights but rather, to take a stand for men's rights. A case was brought to my attention in the early part of October 1994 when the Court of Appeals handed down a 5-2 decision on a paternity case. The highest court in Maryland ruled that a man who agreed to pay child support but later found he was not the biological father must continue paying child support. The reason for the decision according to Chief Judge Robert C. Murphy's majority opinion was that if paternity cases were not final then children would be left “fatherless and without support”. Certainly no one would advocate for that situation; however, I believe there is a fairness issue at stake here and, if passed, SB 114 would amend the code to deal fairly with this issue by authorizing the court to modify or set aside a declaration of paternity under certain circumstances.
^
"... In light of the inequality exhibited in the recent publicized cases of 2 men who accepted paternity and child support only to discover *408they were not the biological father, yet had to continue support payments, I urge a favorable report on SB 114." 359 Md. at 411, 754 A.2d at 396-97.

. This case suggests the accuracy of my prediction in Langston v. Riffe, 359 Md. 396, 449 n. 4, 754 A.2d 389, 418 n. 4 (2000) (Bell, C.J. dissenting), "It is not inconceivable, and, indeed, quite probable, that there will be a number of requests for blood and genetic tests made by men who agreed to paternity, but, now, behind in payments or perhaps regretting the initial decision, will take a shot at obtaining a modification; after all, they have nothing to lose and everything to gain.”