Monroe v. Monroe

• Decision Date: 01 September 1991
• Docket Number: No. 114,114
• Citation: 329 Md. 758,621 A.2d 898
• Parties: Patricia Thomas MONROE v. Donald P. MONROE. ,
• Court: Maryland Court of Appeals

Page 758

329 Md. 758

621 A.2d 898

Patricia Thomas MONROE v. Donald P. MONROE.

No. 114, Sept. Term, 1991.

Court of Appeals of Maryland.

March 26, 1993.

No argument on behalf of petitioner.

Ann M. Turnbull (Joseph J. Wase, Turnbull, Wase & Lyons, P.A., all on brief), Towson, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

ROBERT M. BELL, Judge.

The propriety of a trial court's order, entered at the mother's behest, that the man who acknowledges paternity of a child born out of wedlock take a blood test to establish that paternity, is one of the issues presented in this case. The related issue, whether the results of the blood test properly were admitted into evidence and deemed to be dispositive of the acknowledged father's custody claim, is also presented. Holding that it was reversible error to require the acknowledged father to submit to a blood test, the Court of Special Appeals reversed the judgment of the Circuit Court for Baltimore County, which had upheld a master in chancery's admission of blood test results, excluding the acknowledged father as the biological father, into evidence and, on the basis of that evidence, transferred custody of the child from the acknowledged father to her mother. Monroe v. Monroe, 88 Md.App. 132, 594 A.2d 577 (1991). We granted the petition for certiorari filed by Patricia Thomas Monroe, the petitioner, in order that we might consider the important issues this case presents.

I.

After they had been dating for a short time, the petitioner informed Donald P. Monroe, the respondent, that she was pregnant with his child. Skeptical, due to his having a low sperm count, the respondent requested that the petitioner take a "voice stress analysis test," which she did. The results of the test "proved" that the petitioner believed that the respondent was the father of the expected baby. Thereafter, when the baby, Beth, was born, the respondent was present in the delivery room and his name was placed on the birth certificate as the father. After about two and a half years, during which the parties and Beth lived together, the parties were married.

Within months after the marriage, following an argument, the petitioner told the respondent that he was not Beth's father. They separated. When the petitioner filed a complaint for absolute divorce, the respondent, answering it, filed a Motion For Order Requiring Blood Tests, accompanied by an affidavit. In the motion, and affidavit, the respondent denied being Beth's natural father, explaining that when Beth was conceived, he and the petitioner were not living together and the petitioner was having sexual relations with another man. The respondent also asserted that he would "continue to have doubts concerning this matter if I were found to be the father of the said Minor Child just because I am married to the Plaintiff, the child's mother." The parties reconciled before blood tests were ordered, or taken, and the matter was not further pursued.

The parties separated for the final time in 1989. Pursuant to a Voluntary Separation and Property Settlement Agreement, they agreed to joint custody of the child "born to the parties prior to their marriage," that the primary residence of the child would be the petitioner's, and that the respondent would have visitation rights. The agreement also provided that neither party would move from the State of Maryland with Beth without the express consent of the other. The agreement was amended to provide for automatic increases in child support, to make the respondent responsible for the payment of private school tuition, and to require the parties to share the costs of college. It was also amended to make clear that reconciliation would not affect the child support, visitation, custody or property disposition provisions.

The parties also entered into two consent orders. The first, entered into shortly after the separation agreement was signed, confirmed the support, joint custody and visitation arrangements reflected in the agreement, provided for the petitioner and child to reside in the marital home, and required the child to resume attendance at private school. In addition to providing for increased support and other expenses for the child, the second consent agreement called for the psychological and psychiatric examination of the parties and Beth to facilitate recommendations as to custody and visitation.

When the petitioner moved, with Beth, from the State of Maryland, the respondent filed a motion for temporary and exclusive custody, which the circuit court granted. Following an emergency hearing, that order was continued in effect, pending an evidentiary hearing. Before the evidentiary hearing could be held, however, the petitioner filed a Motion To Order Blood Tests To Establish Paternity, alleging that the respondent was not Beth's biological father. The court granted the motion, ordering the respondent to submit to a blood test, which he ultimately did. The results of the test excluded him as Beth's biological father.

The evidentiary hearing proceeded as scheduled and the blood tests results were admitted into evidence over the respondent's objection. Following testimony by both parties, as well as from numerous witnesses called on their behalf, and, notwithstanding the blood test results, the master recommended, inter alia, that temporary custody be continued in the respondent.

Both parties excepted to the master's recommendations. The petitioner excepted to the temporary custody recommendation and the respondent to the admission into evidence of the blood test results. The court sustained the petitioner's exceptions and overruled the respondent's. Consequently, it ordered that temporary custody of Beth be changed from the respondent to the petitioner. ¹ Adopting the master's findings that neither party was unfit, the court rejected those pertaining to the existence of exceptional circumstances sufficient to overcome the presumption that it was in Beth's best interest to be in the custody of the petitioner, a biological parent, rather than the respondent, a "third" party. It found, "as a matter of law," that exceptional circumstances did not exist.

II.

Our opinion in Turner v. Whisted, 327 Md. 106, 111, 607 A.2d 935, 937 (1992) addressed the question:

Whether a male individual who claims to be the father of a child born to a married couple is entitled to petition a circuit court for a blood test to determine paternity for the purpose of determining whether said male individual is the biological father of the child when the child was conceived prior to the marriage of said married couple.

The motion for blood tests filed in that case was premised on Maryland Code (1974, 1991 Repl.Vol.), § 1-208 of the Estates and Trusts Article and Thomas v. Solis, 263 Md. 536, 283 A.2d 777 (1971). We held, in Turner, "that § 1-208 of the Estates & Trusts Article provides an alternate avenue by which one could seek blood tests for the purpose of establishing paternity." 327 Md. at 113, 607 A.2d at 938. For that conclusion, we relied on Thomas, which held that compliance with § 1-208 was sufficient to protect an unwed father's visitation rights and right to notice of a proposed adoption. Thomas, 263 Md. at 544-45, 283 A.2d at 781-82. In addition, we noted the interrelationship between the paternity statute, see Maryland Code (1984, 1991 Repl.Vol.), § 5-1001, et. seq. of the Family Law Article and § 1-208, which was recognized in Taxiera v. Malkus, 320 Md. 471, 578 A.2d 761 (1990). See also § 5-1005(a) of the Family Law Article ("An equity court may determine the legitimacy of a child pursuant to § 1-208 of the Estates and Trusts Article."), and § 1-208(b)(1) (the child is legitimate if his or her father "[h]as been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings"). Thus, we held:

[I]n those cases where two men each acknowledge paternity of the same child, we believe that an action to establish paternity is more appropriately brought under the Estates and Trusts Article. As advanced by this Court in Thomas and Dawson [v. Eversberg, 257 Md. 308, 262 A.2d 729 (1970) ], the Estates & Trusts Article presents the "more satisfactory" and "less traumatic" means of establishing paternity.

327 Md. at 113, 607 A.2d at 938 (quoting Thomas, 263 Md. at 544, 283 A.2d at 781; Dawson, 257 Md. at 314, 262 A.2d at 732).

Section 1-208 is the preferred mechanism, we explained, because of the discretion it affords the trial court to grant or deny the request for blood tests. ² Under § 1-208, we pointed out, "[a] motion for blood tests ... is best analyzed as a request for a physical examination under Maryland Rule 2-423." Turner, 327 Md. at 113, 607 A.2d at 939. Pursuant to that rule, good cause must be shown for the order of the blood tests, id. at 114, 607 A.2d at 939, the determination of which "allows the court discretion to consider the best interests of the child." Id. at 116, 607 A.2d at 940. Whether the presumption of legitimacy, which attaches to a child by virtue of his or her mother's marriage to a man who was married to the mother at the time of conception, and who also acknowledges the child as his, should be rebutted, involves and, indeed, requires the balancing of various interests relevant to the determination of good cause for the blood tests--those of the family unit, those of the man challenging paternity and, most importantly of all, the best interests of the child. Proceeding pursuant to § 1-208 permits these interests to be balanced and, in addition, allows for input from a representative for the child. Id. The court need not, and probably should not, rely on the parties to the action accurately and adequately to define what is in the child's best interest.

The case was remanded to the trial court for further proceedings, specifically, for the...