Burden v. Burden

• Decision Date: 03 April 2008
• Docket Number: No. 0077, Sept. Term, 2007.,0077, Sept. Term, 2007.
• Citation: 179 Md. App. 348,945 A.2d 656
• Parties: Christine R. BURDEN v. Michael L. BURDEN.
• Court: Court of Special Appeals of Maryland

945 A.2d 656

179 Md. App. 348

Christine R. BURDEN v. Michael L. BURDEN.

No. 0077, Sept. Term, 2007.

Court of Special Appeals of Maryland.

April 3, 2008.

James L. Wiggins, Baltimore, for Appellant.

Roanne Handler (Schlachman, Belsky & Weiner, PA on the brief), Baltimore, for Appellee.

Panel: SALMON, LAWRENCE F. RODOWSKY (retired, specially assigned), JOSEPH F. MURPHY, JR.,^* (specially assigned), JJ.

LAWRENCE F. RODOWSKY, Judge, (retired, specially assigned).

Christine R. Burden (Christine) appeals from a decree entered by the Circuit Court for Baltimore County in a divorce case that was filed in April 2006. She is aggrieved by the exclusion from the court's child support order of one of her sons, who is the stepson of the appellee, Michael L. Burden (Michael). Christine contends that Michael is precluded from denying paternity because he voluntarily acknowledged paternity on the child's South Dakota birth certificate. Michael has not filed a brief or otherwise appeared in this appeal.

The child is Malachi Antoine Viccarrio (Malachi) who was born to Christine, then unmarried, on July 23, 1995, in Sioux Falls, South Dakota. His original birth certificate was issued using Christine's family name, Handy, as the child's surname. Christine and Michael first met sometime after Malachi was born. The parties were married on April 22, 2000, in South Dakota. They separated in May 2003. After the parties separated, Christine moved to Baltimore. In August of 2003, in connection with his employment as an assistant basketball coach, Michael moved to Florida. Currently, he coaches at the University of Maine. While in Florida, Michael was the object of child support proceedings. Michael testified that a child support order in Florida was entered for both Malachi and his half-brother, Michael, the child of Christine and Michael, who was born on December 6, 1999.¹

The uncontradicted evidence is that, prior to the parties' separation, Michael treated Malachi as if the latter were the former's own child. Michael supported Malachi, who referred to Michael as his father. Michael's family accepted Malachi as one of the grandchildren or nephews.

On July 5, 2000, Michael had filed a paternity affidavit with the Department of Health in Pierre, South Dakota, in which he acknowledged, with Christine's signed consent, that he was "the natural father" of Malachi. In that affidavit he furnished personal information which was "to be entered on the certificate of birth relative to the natural father." Michael also signed the acknowledgment set forth below:

"I acknowledge that I voluntarily sign this Paternity Affidavit. I further acknowledge that all rights, responsibilities, alternatives and legal consequences associated with signing this affidavit have been fully explained to me, orally and/or in writing, and I fully understand the same. I also understand that an affidavit of paternity signed by both parties creates a presumption of paternity and allows for the establishment of a child support obligation without further legal proceedings to establish paternity. I further understand that either party can seek circuit court recission of this affidavit within 60 days of signing the affidavit, unless an administrative or judicial proceeding has already been commenced regarding the child."

The South Dakota Department of Health issued a certificate of birth for Malachi listing Michael as the father.

Christine testified that Michael wanted to adopt Malachi at the time of the affidavit, but that the couple could not get the biological father to sign a termination of parental rights. Michael described the circumstances leading to the execution of the paternity affidavit as follows:

"I don't know about adoption. We discussed — I signed that because the whole thing was he didn't have my last name. Michael had my last name, and she had it, and we was worrying about that. That's why I signed the form."

In the case before us, the circuit court, in an oral opinion, concluded that it could not include Malachi in the support order because the parties agreed that Michael was not the biological father of Malachi. The court would not give effect to the South Dakota paternity affidavit and birth certificate because it was not a court judgment.

In a post-opinion motion, Christine, for the first time, called the circuit court's attention to 9A South Dakota Codified Laws (SDCL) (1999 rev., 2007 supp.), §§ 25-8-52 and 25-8-59. They read:

"25-8-52. Rebuttable presumption of paternity — Signed and notarized affidavit. A signed and notarized affidavit of paternity creates a rebuttable presumption of paternity, admissible as evidence of paternity, and allows the Department of Social Services to proceed to establish a support obligation in accordance with the provisions of §§ 25-7A-5 to 25-7A-8, inclusive, without requiring any further proceedings to establish paternity."²

"25-8-59. Actions contesting rebuttable presumption of paternity. Any action contesting a rebuttable presumption of paternity as established by §§ 25-8-50 to 25-8-58, inclusive, shall be commenced in circuit court either sixty days after the creation of the presumption of paternity or the date of any administrative or judicial proceedings relating to the child including proceedings to establish a support obligation in accordance with § 25-8-52, whichever occurs earlier, except in cases where there are allegations of fraud, duress, or material mistake of fact. In cases involving allegations of fraud, duress, or material mistake of fact, any action contesting a rebuttable presumption of paternity shall be commenced within three years after the creation of any presumption. The burden of proof shall be upon the moving party and the payment of child support, or any other legal responsibilities of the parties, may not be suspended during the pendency of the proceedings, except upon a showing of good cause by the moving party."

Christine contended that the presumption of paternity, arising from Michael's acknowledgment, was irrebuttable because the time set under § 25-8-59 had passed. The circuit court denied the motion by docket entry.

In this Court, Christine presents two questions on the merits:

I. "Whether the Trial Court's finding, by implication, that the Appellee's paternity had not been established under the laws of South Dakota was clearly erroneous?"

II. "Whether the Trial Court erred in failing to give full faith and credit to the acts and records of the State of South Dakota Health Department?"

Noteworthy is that Christine does not argue estoppel.³

Standard of Review

In Steinhoff v. Sommerfelt, 144 Md.App. 463, 798 A.2d 1195 (2002), this Court held that, where a motion to alter or amend raises an independent contention, its denial is subject to broad discretionary review. Id. at 484, 798 A.2d at 1207. The procedural history of the divorce action before us implicates the Steinhoff rule. The trial in the instant matter concluded on January 9, 2007, at which time the South Dakota statutes had not been cited or argued. At that time, the court orally ruled from the bench. The docket entry for that proceeding concluded: "Order to be filed." It is within ten days from that oral ruling that Christine filed her motion to alter or amend. By an order entered on February 16, 2007, the court denied that motion, and the notice of appeal was filed on March 19, 2007. The judgment of absolute divorce, however, was not docketed until April 26, 2007.⁴ Thus, although the post-trial motion filed by Christine did not have the effect of deferring the time for noting an appeal, because no judgment had been entered, the motion presented an entirely new ground in an attempt to persuade the court to the contrary of its announced ruling.

In Steinhoff, a divorce case, the appellant asserted for the first time, in a motion to alter judgment, that a qualified domestic relations order was required, as part of a monetary award. 144 Md.App. at 482, 798 A.2d at 1206. We said that "[t]he appellant may not exploit an appeal from a post-trial procedure as a device to outflank the non-preservation bar to an appeal from a trial procedure. One may not preserve an issue nunc pro tunc." Id. at 483, 798 A.2d at 1206-07.

The preservation requirement is governed by Maryland Rule 8-131, providing that "[o]rdinarily," an appellate court will not decide an unpreserved issue. Reposed in the appellate courts, however, is a discretion nevertheless to decide the issue, exercisable, inter alia, when an appellate ruling would be desirable for trial court guidance. Because the problem presented here, and application of the analytical framework required to resolve it, are highly likely to recur, we shall exercise our discretion to consider the appeal.⁵

Discussion

As will appear infra, the two questions presented merge into one issue.

Christine contends that the circuit court erred in failing to give full faith and credit to the records of South Dakota. She submits that, under the law of South Dakota, Michael, by voluntarily acknowledging paternity and by failing timely to seek to disestablish paternity, is now conclusively presumed to be the father of Malachi.

Article IV, § 1 of the Constitution of the United States reads:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

The relevant federal legislation is the Social Security Act, subchapter IV, "Grants to States for Aid and Services to Needy Families with Children and for Child-Welfare Services," Part D, "Child Support and Establishment of Paternity," 42 U.S.C. § 651 et seq., as revised by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the Federal Act), P.L. 104-193, effective July 1, 1997. These federal statutes are...