Eagan v. Ayd, 176

• Citation: 313 Md. 265,545 A.2d 55
• Decision Date: 01 September 1987
• Docket Number: No. 176,176
• Parties: , 57 USLW 2147 Frederick M. EAGAN v. Clarissa AYD. ,
• Court: Court of Appeals of Maryland

Page 265

313 Md. 265

545 A.2d 55, 57 USLW 2147

Frederick M. EAGAN v. Clarissa AYD.

No. 176, Sept. Term, 1987.

Court of Appeals of Maryland.

Aug. 4, 1988.

Charles E. Yankovich, Towson, for appellant.

Kenneth D. Man (Kroop, Kurland & Rosenberg, on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

ADKINS, Judge.

The defendant in a paternity action refused to submit to a blood test ordered by the Circuit Court for Harford County (Carr, J.) pursuant to Md.Code (1984) § 5-1029 of the Family Law Article. Judge Carr held that the refusal constituted contempt of court. The defendant now insists that the court lacked the power to hold him in contempt. We disagree and affirm the judgment of the circuit court.

There is no dispute about the factual framework of the question before us. Appellee, Clarissa Ayd, initiated a paternity action in the Circuit Court for Harford County against appellant, Frederick M. Eagan, alleging that Eagan was the father of Ayd's minor daughter. With the complaint Ayd filed a § 5-1029 motion for a blood test. The court ordered Eagan to submit to the test. Eagan, nonetheless, failed to appear for the test, and eventually the court issued an order finding him in civil contempt of court for his failure to comply with the blood-test order. The contempt order further provided that "Frederick Eagan shall submit to a blood test within five days of the date of this Order to purge himself of his contempt ... [or] be committed to the jurisdiction of the Harford County Detention Center...." ¹

Eagan adamantly refused to take the blood test, and appealed the contempt order to the Court of Special Appeals. We granted certiorari on our own motion prior to decision by the intermediate appellate court.

Section 5-1029, the focus of controversy in this appeal, in pertinent part provides:

(a) On the motion of a party to the [paternity] proceeding or on its own motion, the court shall order the mother, child, and alleged father to submit to blood tests to determine whether the alleged father can be excluded as being the father of the child.

* * *

* * *

(e)(1) The results of each blood test shall be received in evidence if:

(i) definite exclusion is established; or

(ii) the testing is sufficiently extensive to exclude 97.3% of alleged fathers who are not biological fathers, and the statistical probability of the alleged father's paternity is at least 97.3%.

* * *

* * * (f) If any individual fails to submit to a blood test ordered by the court, that refusal, properly introduced in evidence:

(1) shall be disclosed to the court and jury; and

(2) may be commented on by the court or by counsel.

Eagan's principal contention is that the sanctions available for failing to take the court-ordered blood test are limited by § 5-1029(f) to disclosure to the court and jury and comment by the court or by counsel. Ayd counters by asserting that "[s] 5-1029(f) ... is not an attempt [by] ... the legislature to limit the powers of the court to punish for contempt." Brief at 7. Alternatively, Ayd argues that the court has an inherent power to hold Eagan in contempt and one which the legislature has no power to limit.

In order to evaluate these arguments, we must ascertain the legislative intent of § 5-1029, and we must do so within the context of the paternity statute of which it is a part. Our primary task in this regard is to determine the legislative goal or purpose of the statutory provisions. Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628, 632 (1987). Kaczorowski teaches that in this endeavor we are "not limited to the words of the statute [but] ... may and often must consider other 'external manifestations' or 'persuasive evidence'...." Id. at 514-515, 525 A.2d at 632. We begin this task by a brief historical review of the subject which is now designated "Paternity Proceedings," but which until 1963 was referred to under the heading of "Bastardy" or "Bastardy and Fornication."

According to one authority, "[p]roceedings for redress in cases of bastardy are wholly matter[s] of statutory regulation." L. Hochheimer, The Law of Crimes and Criminal Procedure § 271 (2d ed. 1904) [footnote omitted]. In Maryland, that regulation began at least as early as 1715. Under Ch. 27 of the Acts of that year, "Women who have Bastards, and do refuse to discover the Father or Begetter of such Children" could be punished by "Whipping upon ... their bare Bodies, till the Blood do appear, [by] so many Stripes not exceeding Thirty nine...." The Laws of the Province of Maryland 88-89 (Cushing facsimile ed. 1978). Chapter 13, Acts of 1781 established somewhat more elaborate procedures, but without the corporal punishment. The basic functioning of that law was for a woman who had allegedly borne an illegitimate child to be summonsed before a justice of the peace. She was then required to post security to indemnify the county for any cost of supporting the child, and if she did not post the security, she would be jailed. But if she named the father of the child, she was discharged. The putative father was then called before the justice and the father, in his turn, was required to post security. If aggrieved by that judgment, he was entitled to seek a jury trial in the county court, "as in other criminal cases." Id.

One purpose of these laws was, of course, to prevent the county from having to bear the full cost of supporting an illegitimate child. The other was to punish fornication, and the laws were deemed criminal in nature. Bake v. State, 21 Md. 422, 425-426 (1864); Owens v. State, 10 Md. 164, 168 (1856); Oldham v. State, 5 Gill 90, 93 (1847). ² And the criminal bastardy laws still were in effect in 1941 when Article 12, § 17 of the code (the predecessor to § 5-1029) came into being. Overall, Article 12 bore considerable resemblance to the 1781 statute, but § 17 was an innovation.

The new section was enacted in order to give the court the benefit of a relatively new scientific tool--the use of blood tests to prove nonpaternity. Bowen, "Blood Tests and Disputed Parentage," 18 Md.L.Rev. 111, 115 (1958) (hereinafter Bowen). It provided:

Whenever the defendant in bastardy proceedings denies that he is the father of the child, upon the petition of the defendant, the court shall order that the complainant, her child and the defendant submit to such blood tests as may be deemed necessary to determine whether or not the defendant can be excluded as being the father of the child. The result of the test shall be received in evidence, but only in case definite exclusion is established.... If the complainant or her child fail to submit to the blood tests ordered by the court to be taken, such fact, when properly adduced by evidence, shall be disclosed to the court and jury, and may be commented upon by the court or by counsel to the jury or to the court when sitting as a jury [emphasis supplied].

This new addition was patently for the benefit of the defendant. Shanks v. State, 185 Md. 437, 449, 45 A.2d 85, 90 (1945); Bowen, 18 Md.L.Rev. at 116-117. The new law made no mention of contempt as a sanction for failure to take the test, but it is obvious that the defendant would be a most unlikely subject for that sanction, since he was the one who would request the test, and since the test could not be placed in evidence if its results were adverse to him. It is true, nevertheless, that there was likewise no mention of the use of contempt against a mother who disobeyed the court's order. The only sanctions mentioned were disclosure of the failure to be tested to the jury, and comment on that failure. This is true despite the fact that only two years earlier the General Assembly had enacted Article 12, §§ 5 and 6, which authorized the State's Attorney to procure the attendance of anyone except the defendant for investigation of bastardy charges and which allowed that officer to enforce obedience to his commands by seeking a contempt order in court. 1939 Md.Laws, Ch. 182 at 301. These provisions are now in § 5-1019 of the Family Law

Article. ³

Putting aside insubstantial amendments, the next major change came via Ch. 722, Acts of 1963. This law among other things repealed Article 12, "Bastardy and Fornication," for the purpose of "entirely revising the laws of this State concerning bastardy and fornication and paternity proceedings; vesting in the several equity courts of this State jurisdiction to hear and determine all such paternity proceedings; [and] providing generally for such jurisdiction and the procedure for its exercise...." 1963 Md.Laws, Ch. 722.

By this Act, criminal "Bastardy" became civil "Paternity." Despite that change, however, the new law carried forward many of the substantive provisions of old Article 12. The power of the State's Attorney to enforce his investigatory authority through contempt (except as to the defendant) was retained in Article 16, § 66D. And old Article 12, § 17 became, with only one minor change, Article 16, § 66G. ⁴ But some other more significant statutory changes were made. A provision was added to the effect that the defendant was not required to answer the complaint against him ( § 66E(f)--now § 5-1012 of the Family Law Article). The defendant could not be compelled to testify ( § 66F(b)--now § 5-1028(d) of the Family Law Article). No comment could be made on the defendant's failure to testify ( § 66F(d)--now § 5-1027(c) of the Family Law Article). We shall analyze these statutory protections for the defendant shortly. For now, we need note only that the apparent pro-male tilt they seem to suggest (a slant quite consistent with the early history of paternity laws) is belied by the basic goals of the 1963 legislation.

The Commission to Study Problems of Illegitimacy among the Recipients of Public Welfare Monies in the Program for Aid to Dependent Children (hereinafter the Commission) concerned...