Monroe v. Monroe

• Decision Date: 01 September 1990
• Docket Number: No. 2033,2033
• Citation: 88 Md.App. 132,594 A.2d 577
• Parties: , 60 USLW 2223 Donald P. MONROE v. Patricia Thomas MONROE
• Court: Court of Special Appeals of Maryland

Page 132

88 Md.App. 132

594 A.2d 577, 60 USLW 2223

Donald P. MONROE v. Patricia Thomas MONROE.

No. 2033 Sept. Term, 1990.

Court of Special Appeals of Maryland.

Aug. 27, 1991.

Ann M. Turnbull (Joseph J. Wase and Turnbull, Wase & Lyons, P.A. on the brief) Towson, for appellant.

Patricia Thomas Monroe of Memphis, Tenn. (Robert M. Winegrad, Stephen S. Winegrad and Kantor & Winegrad on the brief), Owings Mills, for appellee.

Argued before BISHOP, ROSALYN B. BELL, and FISCHER, JJ.

BISHOP, Judge.

In September 1989, Donald P. Monroe, appellant, filed a Complaint for Limited Divorce. Appellant's wife, Patricia T. Monroe, appellee, subsequently filed a Counter-complaint for Absolute Divorce. The parties entered into a Voluntary Separation and Property Settlement Agreement, an Amended Marital Settlement Agreement and two Consent Orders which provided for joint custody of their only minor child and support payments. This case arises out of a dispute regarding the issue of temporary custody of the child.

Issues Presented

Appellant raises the following three issues:

I. Whether the trial court erred in requiring appellant to submit to a blood test;

II. Whether the trial court erred in admitting the results of the blood test into evidence; and,

III. Whether the trial court erred in changing custody from appellant to appellee on the basis of the blood test which excluded appellant as the biological father of the child.

Since we find that the trial court erred in requiring appellant to submit to a blood test, we also conclude that the results of the blood test should not have been admitted into evidence, and that custody should not have been changed on the basis that the blood test excluded appellant as the biological father of the child. We also deny the various motions that have been filed during the pendency of this appeal since they become moot as a result of our disposition of this case.

Facts

Donald Monroe, appellant, and Patricia Monroe, appellee, met and began to date in the fall of 1984. In the spring of 1985, appellee learned that she was pregnant and she informed appellant that he was the father of the unborn child. To reassure him, appellee took a "voice stress analysis test" with a licensed investigator who advised the parties that, based on the results of the test, appellee believed that appellant was the father of the baby. The parties began living together and, in December of 1985, appellee gave birth to a baby girl. Appellant was present in the delivery room during the birth and his name appears on the child's birth certificate as her father. Eventually, the parties were married in May of 1988 when the child was approximately two and a half years old.

Several months after they were married, the parties had an argument. Mrs. Monroe left the home and stayed with relatives in Delaware. Mrs. Monroe then told Mr. Monroe that he was not the father of her child. Mr. Monroe responded by filing a Motion for a Blood Test in the Circuit Court for Baltimore County. According to Mr. Monroe, this motion was filed in order to get Mrs. Monroe to return home. The Motion was never pursued and the case was dropped when Mrs. Monroe returned home from Delaware.

The parties continued to live together intermittently until July 1989 when they separated by mutual consent. They entered into a Voluntary Separation and Property Settlement Agreement in which they agreed, inter alia, that the child "born to the parties prior to their marriage" would be in their joint custody and that her primary residence would be with Mrs. Monroe, with specified visitation rights for Mr. Monroe. The Agreement further provided that neither party was to "move out of the State of Maryland with the child with the intent of establishing a residence in another state, unless that move is previously consented to in writing by the other party." Mr. Monroe also agreed to pay the mortgage and other bills and allow Mrs. Monroe and the child to occupy his home for one year on the condition that Mrs. Monroe not rent out space in the home, or allow anyone other than herself and the child to reside in or occupy the home on a permanent basis.

According to Mrs. Monroe's testimony, sometime in the fall of 1989 her daughter alleged that Mr. Monroe had abused her. The Child Advocacy Center for Baltimore County conducted an investigation and concluded that the allegations were unsubstantiated.

Also in the fall of 1989, the parties entered into a Consent Order which continued joint custody of the child and Mr. Monroe's visitation rights. In February of 1990, the parties entered into a second Consent Order which provided that the parties and the child were to be evaluated by a psychologist or psychiatrist mutually selected by the parties, at Mr. Monroe's expense, who was to make recommendations as to custody and visitation. The second Consent Order also provided for Mr. Monroe to increase his child support payments and to pay for certain other expenses for the child. Shortly after the entry of the second Consent Order, the parties and the child began to be evaluated by Dr. Leon Rosenberg, the head of the Division of Child and Adolescent Psychiatry at the Johns Hopkins Hospital.

Sometime in 1990, Mr. Monroe became convinced that Mrs. Monroe's married paramour, Gary Roseman, had moved into the house with Mrs. Monroe and the child. Mr. Monroe also began to suspect that Mrs. Monroe was planning to move out of the state with Gary Roseman and the child. Mrs. Monroe did, in fact, leave the state and Mr. Monroe filed a Motion for Ex Parte Order. The Circuit Court issued an Order awarding temporary and exclusive custody of the child to Mr. Monroe.

The next day, Mrs. Monroe returned to Maryland with the child and an emergency hearing was held before the Circuit Court. Mrs. Monroe testified that her paramour had relocated to Tennessee, that she had gone there temporarily to help him move, and that she left suddenly because she was afraid of Mr. Monroe. She then admitted that she had contracted with a moving van company at least two weeks earlier and that all the furniture had already left for Tennessee before Mr. Monroe allegedly called and threatened her. The Circuit Court concluded that the temporary custody Order that gave Mr. Monroe temporary and exclusive custody would remain in effect until an evidentiary hearing was held.

Prior to the hearing, Mrs. Monroe filed a Motion to Order Blood Test to Establish Paternity in which she alleged, for the first time, in this proceeding, that Mr. Monroe was not the biological father of the child. The Circuit Court issued an Order requiring Mr. Monroe to submit to a blood test for the purpose of establishing paternity. Mr. Monroe filed a Motion for Reconsideration which was denied. Thereafter, as we mentioned previously, he appealed to this Court, but the case was dismissed as an appeal from an interlocutory order. Accordingly, Mr. Monroe complied with the court's Order and submitted to a blood test, the results of which excluded him as the biological father of the child.

On July 30, 1990, a hearing was held before a master at which both parties, and numerous other witnesses, testified. At the beginning of the hearing, Mr. Monroe objected to the results of the blood test being admitted into evidence. His objection was overruled and the results of the test were admitted. At the conclusion of the hearing, the master recommended that temporary custody of the child be continued with Mr. Monroe and that the child was not to be removed from the State of Maryland. The master also recommended that Mrs. Monroe be evaluated by Dr. Michael Spodak, that Dr. Leon Rosenberg continue to see the child, and when Mrs. Monroe is in Baltimore, that she have visitation with the child for the first forty-eight hours and thereafter on a fifty-fifty basis with Mr. Monroe at forty-eight hour intervals.

Mrs. Monroe filed Exceptions to the master's ruling on the issue of custody and Mr. Monroe filed Exceptions to the master's ruling that the blood test be received into evidence. On November 29, 1990, a hearing on both parties' Exceptions was held before the Honorable Dana M. Levitz. Judge Levitz issued a written Opinion which denied Mr. Monroe's Exceptions and granted Mrs. Monroe's Exceptions, thereby changing custody of the child to her mother. Judge Levitz determined that there was no authority for Mr. Monroe's position that blood tests can only be ordered and admitted in paternity cases. Moreover, he recognized that in this particular case there had been no prior finding of paternity by any court and, accordingly, the master was correct in admitting the blood test into evidence.

Judge Levitz also held that, as a matter of law, there were not sufficient exceptional circumstances to overcome the presumption that, between a biological parent and a third party (Mr. Monroe), the best interest of the child requires custody to be with her biological parent. The Honorable Barbara Kerr Howe stayed Judge Levitz' Order pending appeal. Judge Howe subsequently struck her Order whereupon Judge Levitz denied Mr. Monroe's Motion for Stay. We stayed Judge Levitz' Order pending appeal and, therefore, at the present time, the child continues to reside with Mr. Monroe.

Discussion

Under the unique facts of this case, we hold that Mrs. Monroe is equitably estopped from using the results of a blood test to bastardize her child in connection with this routine divorce proceeding wherein the basic issue is the termination of the marriage bond--not the paternity of the child. Maryland courts have consistently applied the following definition of equitable estoppel:

Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon...