Duckworth v. Kamp

• Decision Date: 30 May 2008
• Docket Number: No. 2871, Sept. Term, 2006.,2871, Sept. Term, 2006.
• Citation: 180 Md. App. 166,949 A.2d 43
• Parties: DEPARTMENT OF HUMAN RESOURCES, GARRETT COUNTY DEPARTMENT OF SOCIAL SERVICES, BUREAU OF SUPPORT ENFORCEMENT, ex rel. Vicki Jo DUCKWORTH v. Darren Gerald KAMP.
• Court: Court of Special Appeals of Maryland

949 A.2d 43

180 Md. App. 166

DEPARTMENT OF HUMAN RESOURCES, GARRETT COUNTY DEPARTMENT OF SOCIAL SERVICES, BUREAU OF SUPPORT ENFORCEMENT, ex rel. Vicki Jo DUCKWORTH v. Darren Gerald KAMP.

No. 2871, Sept. Term, 2006.

Court of Special Appeals of Maryland.

May 30, 2008.

Joseph B. Spillman (Douglas F. Gansler, Attorney General, on the brief), Baltimore, for appellant.

G. Gary Hanna, Cumberland, for appellee.

Panel: HOLLANDER, DEBORAH S. EYLER, RAYMOND G. THIEME (Retired, specially assigned), JJ.

HOLLANDER, J.

In this appeal, we must determine, inter alia, whether the Circuit Court for Garrett County erred or abused its discretion in terminating the child support obligation of Darren Kamp, appellee, with respect to Julie Kamp, the fourth child born to Vicki Jo Duckworth during her marriage to appellee. The court's decision, embodied in an Order of January 19, 2007, was predicated on genetic testing that established that appellee is not Julie's biological father. Appellant, the Department of Human Resources, Garrett County Department of Social Services, Bureau of Support Enforcement, ex rel. Vicki Jo Duckworth ("DSS"), urges this Court to reverse the circuit court.¹

At the time of the Kamps' divorce in 1999, appellee did not dispute Julie's paternity, and he was ordered to pay child support. On July 28, 2005, DSS filed a petition to increase appellee's child support obligation.² Appellee opposed the increase, claiming he is not Julie's biological father, and requesting genetic testing. The court-ordered testing excluded appellee as Julie's biological father. As a result, on May 25, 2006, appellee filed a "Motion to Terminate or Stay the Payment of Support," which the circuit court granted.

This appeal followed. Appellant poses four questions, which we quote:

1. Did the circuit court err in reopening and vacating provisions in final enrolled judgments, based on grounds that Mr. Kamp could have presented to the court in prior proceedings, where there was no finding by the court that the earlier judgments establishing Mr. Kamp as the father and requiring him to pay child support were entered due to fraud, mistake or irregularity?

2. If this Court decides that the circuit court had any discretion to consider Mr. Kamp's request to terminate child support, notwithstanding that the child was born during a marriage and her parentage was established in prior enrolled judgments, did the circuit court properly conclude that Mr. Kamp was not stopped from denying paternity?

3. Did the circuit court violate Subtitle 2 of Title 10 of the Family Law Article when it terminated Mr. Kamp's child support obligation, thereby allowing him to pay less than the amount of child support presumed to be correct under the Maryland Child Support Guidelines, and in the absence of any record finding of grounds for departing from the guidelines?

4. Did the circuit court improperly extinguish child support arrears retroactively?

For the reasons that follow, we shall vacate the order of the circuit court and remand for further proceedings.

FACTUAL AND PROCEDURAL SUMMARY

Appellee and Ms. Duckworth were married on September 13, 1983, and are the parents of three children whose paternity is not in dispute. Julie, the fourth child, was born on December 10, 1992, while appellee and Ms. Duckworth were still married. Nevertheless, appellee knew he might not be Julie's biological father.

Years later, on February 22, 1999, appellee filed a Complaint for Absolute Divorce, claiming that Ms. Duckworth had committed adultery. Notably, appellee averred that four children were born as a result of the marriage, "namely AMANDA KAMP, DARRIC KAMP, CASEY KAMP, AND JULIE KAMP." Further, he alleged that "it would be in the best interests of the minor children to be in the joint custody, and control of the parties." Appellee never challenged Julie's paternity in the Complaint.

In her answer to the suit, Ms. Duckworth admitted the allegations. Thereafter, Ms. Duckworth and appellee reached a voluntary separation agreement which provided, inter alia, for appellee "to pay [monthly] child support to [Ms. Duckworth] in the amount of $200.00 per child[.]"³ The court incorporated, but did not merge, the agreement into its judgment of absolute divorce (the "Judgment"), entered April 9, 1999. The Judgment stated:

IT IS FURTHER ORDERED that the parties shall have the joint care and custody of the minor children of the parties; namely AMANDA KAMP (Date of Birth: April 6, 1983), DARRIC KAMP (Date of Birth: August 13, 1984), CASEY KAMP (Date of Birth: February 12, 1988); and JULIE KAMP (Date of Birth: December 10, 1992); and

IT IS FURTHER ORDERED that primary physical custody of the minor children shall be placed with [Ms. Duckworth] subject to the right of [appellee] to have reasonable visitation with the minor children at such reasonable times and places as may be mutually convenient to the parties.

IT IS FURTHER ORDERED that the physical custody shall be shared as provided in the parties' Agreement.

On January 11, 2002, Ms. Duckworth filed a "Petition to Establish Fixed Visitation and Child Support," alleging that appellee "has failed and refused to develop a fixed schedule for visitation" and that appellee's new wife "has acted in a manner to interfere in matters involving the children." She asked the court to:

a. Pass an Order establishing a fixed visitation schedule;

b. Pass an Order establishing child support;

c. Pass an Order for Earnings Withholding Order; and

d. Grant such other and further relief as the nature of her cause might require.

Appellee responded on February 27, 2002, by filing an answer and a "Counter Petition to Establish Custody, Visitation and Child Support."

Appellee and Ms. Duckworth entered into a Memorandum of Understanding ("MOU") on February 3, 2003, which the court incorporated, but did not merge, into an Order entered on March 14, 2003. The MOU set forth a custody and visitation arrangement for Casey and Julie, the remaining minor children. Further, appellee was ordered to pay $100 per month in child support. The court closed the case on May 19, 2003.

DSS triggered the reopening of the case on July 28, 2005, by filing a Motion for Modification of Child Support. Claiming that Julie resided with Ms. Duckworth full-time, while Casey resided with her half of the time, DSS asked the court to increase appellee's child support obligation, based on the parties' current incomes, "because $100.00 monthly is insufficient to meet [appellee's] share of the support and maintenance" of Casey and Julie. In addition, DSS asked that appellee's future child support payments be made through DSS.

Appellee filed a verified "Answer to Motion for Modification, Request for Child Support, and Request for Paternity Determination" on September 16, 2005. More than six years after the Judgment of Absolute Divorce was entered on April 9, 1999, appellee averred for the first time in a court submission that Julie is not his biological daughter. He also asserted that the issue of paternity "was recently raised by the said Vicki Jo (Kamp) Duckworth when she began to indicate to Julie Kamp and to others that [appellee] was not, in fact, the biological father of Julie Kamp." Accordingly, appellee asked the court to require Ms. Duckworth to pay child support for Casey, deny child support for Julie, and order DNA or blood testing to determine his paternity of Julie.

A master held a hearing on the paternity issue on November 15, 2005. Appellee's counsel called Ms. Duckworth. She admitted that she had sexual relations with James Stanton around the time of Julie's conception in April 1992, and said she had "no doubt" at that time that Stanton was Julie's father. Moreover, she claimed that appellee knew in 1992 that she had sexual relations with Stanton.⁴ The following ensued:

[APPELLEE'S COUNSEL]: At the time you were having sexual relations though, were you not with [appellee]?

[MS. DUCKWORTH]: No, not during the time that I conceived. No. Darren and I were having marital problems and he was staying with a friend of his in West Virginia and had had sexual relations with another woman. That's what spawned all of this.

[APPELLEE'S COUNSEL]: Did the two of you have any discussions concerning paternity of Julie?

[MS. DUCKWORTH]: Yes.

[APPELLEE'S COUNSEL]: And what was the nature of those discussions?

[MS. DUCKWORTH]: The very next day after I had sexual relations with [Stanton], I had called [appellee] and I had told him what happened. And, we both know it's very easy for me to get pregnant. It always was. And, he told me to wait a week or two and go get a pregnancy test done and we'll decide what to do from there. I waited the week or two, went back and got a pregnancy test done, which, of course, came back positive. And, he and I then started going over the options of abortion, adoption or what to do. There were several other people included in this conversation. My sisters were there. And [appellee] and I together made the decision to keep her ...

* * *

[APPELLEE'S COUNSEL]: What did the two of you decide then?

[MS. DUCKWORTH]: ... The second option that [appellee] and I discussed was the option of adoption. That's when the other rest [sic] of the family came in because we were deciding what to do at that time. [Appellee] then, and I together, made the decision to go ahead and keep her ... And [appellee] promised that he would raise her as his own, that [Stanton] would not be involved in her life, and that would be something between us and it would never be a problem ever.

[APPELLEE'S COUNSEL]: And, did you, in fact, do that thereafter?

[MS. DUCKWORTH]: Yes.

Ms. Duckworth recalled that appellee had a vasectomy in June 1987, after she became pregnant for the third time. Although appellee's sperm count was never checked following his vasectomy, Ms. Duckworth noted that she "never became pregnant" in the ensuing years that she and appellee were...