Corley v. Moore

• Decision Date: 13 October 1964
• Docket Number: No. 441,441
• Citation: 203 A.2d 697,236 Md. 241
• Parties: Richard J. CORLEY v. Bertha L. MOORE.
• Court: Maryland Court of Appeals

Page 241

236 Md. 241

203 A.2d 697

Richard J. CORLEY v. Bertha L. MOORE.

No. 441.

Court of Appeals of Maryland.

Oct. 13, 1964.

Donald W. Mason, Deputy State's Atty. (James S. Getty, State's Atty. for Allegany County, Cumberland, on the brief), for appellee.

Earl E. Manges, Cumberland, for appellant.

Before HENDERSON, C. J., and HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

HENDERSON, Chief Judge.

This appeal is from a decree entered in a paternity proceeding, in a case tried by the court without a jury, upon a finding that the appellant was the father of a child born to the appellee, a married woman, on October 27, 1962. This proceeding was instituted on November 27, 1963, under the provisions of Chapter 722, Acts of 1963, effective June 1, 1963. This Act was proposed by the Commission to Study Problems of Illegitimacy, appointed pursuant to Joint Resolution No. 2 of the General Assembly of 1960, which made its final report to the Legislative Council on December 6, 1961. The bill was not introduced, however, until after a constitutional amendment to Art. III, sec. 38, providing that a decree for the support of an illegitimate child or children should not constitute a debt, had been ratified, as it was, on November 6, 1962. This new law repealed Art. 12 of the Code, title 'Bastardy and Fornication', amended Art. 16, sec. 66, and added to the Code a new subtitle 'Paternity Proceedings', and secs. 66A to 66P. It also amended Art. 26, sec. 53, relating to juvenile proceedings. One effect of the new law was to eliminate the criminal aspect of bastardy and to substitute a civil proceeding in equity for the determination of paternity and the enforcement of decrees passed in connection therewith.

In the instant case the appellant first raises the question whether the new law applies to the appellant, as the father of a child born prior to the effective date of the Act. We think there are intimations in the Statute that it does. Art. 16, sec. 66(e) provides that 'the institution of proceedings under the former Article 12 of this Code, title 'Bastardy and Fornication,' prior to June 1, 1963, shall suspend the further running of the period of limitations provided for herein.' That section begins by providing that proceedings shall be commenced during the pregnancy of the mother 'or within two (2) years after the birth of such child or children', (with exceptions not here relevant). Sec. 66N (a) provides: 'Nothing contained in § 66 of this article or in this subtitle shall affect any proceeding or prosecution under said § 66 or under the former Article 12 of this Code * * * instituted prior to June 1, 1963; any such proceedings or prosecution may be continued, including the enforcement or modification of any order theretofore passed in said proceeding, to the same extent and with the same effect as if said Article 12 had not been repealed.' See also sec. 66N (c), providing for the enforcement of old decrees, 'as if said case had been originally instituted under this subtitle.'

We think these provisions contemplate that all proceedings instituted after June 1, 1963, should be under the new law, and may determine the paternity of any child born within the period of limitations. The suggestion that this would make the law an ex post facto one is without merit, since the new proceeding is not criminal, but civil. Cf. Simmons v. Director, 227 Md. 661, 663, 177 A.2d 409, and Braverman v. Bar Ass'n, 209 Md. 328, 348, 121 A.2d 473. See also Peters v. Dist. of Col., 84 A.2d 115 (Mun.Ct. of A., D.C.). That the Act was intended to be remedial is abundantly shown by the recitals in sec. 66A. Its purpose was not to punish the parents, but to enforce the 'basic obligations and responsibilities of parenthood.' It has long been established that the support of minor children, at least those born in wedlock, is not a debt but a duty. McCabe v. McCabe, 210 Md. 308, 314, 123 A.2d 447.

The appellant next contends that the court erred in permitting the appellee to explain why the name of her husband was listed on the birth certificate as the infant's father. The certificate had been put in evidence without objection, and the appellant's counsel had brought out on cross-examination that she gave the information upon which the entry was made. Her explanation was: 'I didn't know what to put on my child's birth certificate so I put my husband's name.' We find no error. She had previously testified that the appellant was the father of the child, and the fact that she had made a prior inconsistent statement affected her credibility, but the trier of facts was entitled to consider her explanation as to why she made the statement. Cf. Lee v. Dist. of Col., 117 A.2d 922, 923 (D.C., Mun.App.), and Tellez v. Canton R. R. Co., 212 Md. 423, 431, 129 A.2d 809.

Finally, the appellant contends that the court erred in refusing to grant a motion for directed verdict at the conclusion of the case. Mrs. Keplinger, the mother of the appellee, and Mrs. Gibson, sister of the appellee, both testified that the appellee and her husband separated in 1961 (they had been married in 1951) and that since the separation the appellee had lived with her parents continuously in Cumberland. The husband had moved to Hagerstown, and the only occasion on which Mrs. Keplinger had seen him was when he brought some toys to the children at Christmas in 1961 and immediately left. The appellee then testified that she had only seen her husband on the one occasion when he came to the house at Christmas; that she began to go out with the appellant on New Year's Eve, in January, 1962, and had intercourse with him repeatedly before and after she became pregnant; that he had offered to pay her doctor's bill but did not do so. She had no intercourse with anyone else. Mrs. Keplinger testified that the appellant came to their home on New Year's...