Walter v. Gunter

HARRELL, Judge,

dissenting, joined by RAKER, J.

I dissent. Judge Battaglia, who had not yet joined the Court when it decided Langston v. Riffe, 359 Md. 396, 754 A.2d 389 (2000), has performed, in the Majority Opinion’s discussion of Langston (Maj. op. at 399-403), as capably as possible in explaining away the damning dicta1 from Lang-ston. I, on the other hand, hobbled by having joined the Majority in Langston, am unable to subscribe to her rationale. I know what it meant to me when I subscribed to Judge Cathell’s thoughtfully considered and essential-to-the-outcome reasoning when he explained why § 5-1038 of the Family Law Article (Chp. 248, Laws 1995) could be given retrospective effect in those combined cases because no vested or substantive rights would be interfered with:

A most natural definition of the term “vested” is “accrued” or, as dictionaries put it, “completed and consummated.” But in that sense, any claim or interest which has become into being and been perfected as “a right” would have to be said to be vested....
... Justice Holmes once remarked with reference to the problem of retroactivity that “perhaps the reasoning of the cases has not always been as sound as the instinct which directed the decisions,” and suggested that the criteria which really governed decisions are “the prevailing views of justice.” The problem is to comprehend what real considerations influence judgment in application of “the prevailing views of injustice.”
*415... It is impossible to discover the precise meaning of the term through which all of the decisions can be consistently explained. Most of the numerous attempts at definition are essentially circuitous in nature, as in the pronouncement that “a vested right, as that term is used in relation to constitutional guarantees, implies an interest which it is proper for the state to recognize and protect, and of which the individual may not be deprived arbitrarily without injustice.” Thus “vested right” means simply a right which under particular circumstances will be protected from legislative interference. Another definition notes that a vested right is an immediate right of present enjoyment or a present fixed right of future enjoyment.

2 [Norman J. Singer, Sutherland’s Statutory Construction] §§ 41.05, 41.06, at 369-70, 379 [(1999 Suppl.)] (footnotes omitted). See Washington Nat’l Arena Ltd. Partnership v. Treasurer, 287 Md. 38, 46 n. 4, 410 A.2d 1060, 1065 n. 4 (“[I]t has long been recognized that the term ‘vested right’ is conclusory — a right is vested when it has been so far perfected that it cannot be taken away by statute.”) (quoting Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L.Rev. 692, 696 (1960)), cert. denied, 449 U.S. 834, 101 S.Ct. 106, 66 L.Ed.2d 40 (1980).

Given these definitions, Chapter 248 does not appear to interfere with any substantive or vested rights in the cases sub judice.

* * * * *

Regarding “vested” rights, the Act does not appear to destroy or modify any vested right belonging to the children in these paternity cases. The State, on behalf of petitioner Danielle and appellees Riffe and Locklear, suggests that certain rights of the children vested upon the entry of the original paternity declarations. The State does not specify what “vested” rights those would be, but does insinuate that three rights might apply to this analysis: (1) inheritance rights; (2) Social Security benefits; and (3) child support.

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*416Our holding does not apply to the support already paid by putative fathers and to the arrears they owe in support. Those property rights are already accrued. It would clearly raise problems, particularly in- the areas of takings and due process, for this Court to interpret the statute to extend the retroactive application of Chapter 248 so far that a child must pay back support already claimed, adjudicated, received, and expended through a paternity-related child support, or other compensatory order, during the period it was legally in effect. Likewise, this reasoning applies to any debt owed by a putative father through the prior support or compensatory order, which is enforceable at least until the putative father initiates proceedings to attack the paternity declaration to which the order relates. See 2 id. § 41.06, at 380 (“A vested, right has been equated with ‘property in order to qualify it for protection from arbitrary interference.”); cf. Washington Nat’l Arena Ltd. Partnership, 287 Md. at 55, 410 A.2d at 1070 (holding that retroactive application of a county tax increase on property recordations to recordations made prior to the increase would “impair property rights” in violation of the federal and state constitutions); cf. also Ferguson v. State ex. rel. P.G., 977 P.2d 95, 98-101 (Alaska 1999) (holding that a putative father, proven not to be the father by blood tests, was entitled only to prospective relief under Alaska’s revisory rule and, thus, was still liable for child support arrearages).

Langston, 359 Md. at 419-23, 754 A.2d at 401-05 (internal footnotes and some citations omitted).

The “now non-patemal ‘father’ ” in the instant case, Walter, inexplicably allowed the accrued and unpaid child support arrearages to accumulate.2 Based on the factual record in this case, it appears he could have avoided virtually all of the arrearages, but, because of unexplained lack of diligence, he *417allowed the consent declaration of paternity to go unquestioned for almost 7 years.

In his 30 March 2000 motion for paternity test, Walter stated that “[s]ince the birth of the childt3] I have been told by herC4] family members that the child is not mine.” At the 19 October 2000 hearing before the Circuit Court master, following receipt of the result of the genetic test, Walter’s attorney argued that the reason he consented to the 30 September 1993 paternity declaration and support order5 was that he had been misled by Ms. Gunter’s representation that he was the only man with whom she had sexual intercourse within 30 days of the child’s conception. Even though the falsity of that representation was confirmed as of the master’s 19 October 2000 hearing, Walter’s counsel asserted:

Mr. Walter’s position is real simple, he feels like, and I am not using this as a term of art, I am using it as the way that he sees it, he feels like he was degraded, like he was lied to, and that he never was the father. There was always a question. There should have always been a question, in fact, in the mother’s mind. (Emphasis supplied).

Walter offered no insight as to why he waited until 30 March 2000 to seek genetic testing. Thus, it seems that Walter’s level of doubt as to his paternity remained constant and high from some time proximate to the child’s birth in 1992 until 30 March 2000 when he sought genetic testing, a period spanning some 7 years. His own lack of diligence created his current predicament and manufactured the legal issue he urges upon the Court in the instant case.

I would hold that the child support arrearages, both the amount owed to the child and the amount of public assistance reimbursement owed to the DSS, accrued through and as of 30 March 2000 (the date Walter moved for a genetic test), were *418vested rights of those entities that could not be interfered with as a result of the retrospective effect sought to be given to the 28 September 2000 declaration of Walter’s non-paternity. Thus, because he owes these debts, he is subject to whatever legal vehicles exist to enforce their recovery.

. It matters not whether the reasoning from Langston is labeled dicta. The relevant language from Langston is a clear example of the "application of the judicial mind to the precise question adjudged.” See Schmidt v. Prince George’s Hospital, 366 Md. 535, 552, 784 A.2d 1112 (2001) (No. 119, September Term, 2000) (citations omitted). Others in the Majority in Langston now may be willing to relegate that language to an intellectual "oops” or an aside; I am not.

. Of the $12,303 owed as of the 20 March 2000 filing of his motion for genetic testing, $8,159.67 was owed to the child directly and $4,143.33 to the Department of Social Services for public assistance already paid for the child's benefit in the absence of Walter’s support payments.

. The child was bom on 3 September 1992.

. It is unclear whether he was referring here to the child or the mother.

. Walter also waived his statutory right to demand genetic testing in 1993.