Mulligan v. Corbett

• Decision Date: 23 May 2012
• Docket Number: No. 43,Sept. Term, 2011.,43
• Citation: 426 Md. 670,45 A.3d 243
• Parties: Amy MULLIGAN v. William CORBETT.
• Court: Maryland Court of Appeals

426 Md. 670

45 A.3d 243

Amy MULLIGAN

v.William CORBETT.

No. 43, Sept. Term, 2011.

Court of Appeals of Maryland.

May 23, 2012.

Laura N. Venezia (Conklyn & Associates of Frederick, MD), on brief, for petitioner.

Keith N. Schiszik (Day & Schiszik, Frederick, MD), on brief, for respondent.

Argued before BELL, C.J., HARRELL, GREENE, ADKINS, BARBERA, LAWRENCE F. RODOWSKY (Retired, specially assigned) and IRMA S. RAKER (Retired, specially assigned), JJ.

LAWRENCE F. RODOWSKY (Retired, specially assigned), J.

This case calls upon us to delve once again into the issue of genetic testing to determine paternity. In particular we are asked to determine whether a man who claims to be the father of a child conceived while the mother was married to another man, but born after the mother and her husband divorced, has an unconditional right to genetic testing to determine whether he is the biological father. The question requires us to identify which of two statutory schemes dictates the outcome.

The Paternity Proceedings subtitle (“Paternity subtitle”), codified at Maryland Code (1999, 2006 Repl.Vol., 2010 Cum.Supp.), §§ 5–1001 through 5–1048 of the Family Law Article (FL), presumes that the mother's husband at the time of conception is the father of that child, seeFL § 5–1027(c)(1). Section 5–1029(b) requires a court to order blood testing “to determine whether the alleged father can be excluded as being the father of the child.” ¹See Langston v. Riffe, 359 Md. 396, 424, 754 A.2d 389, 404 (2000). Alternatively, Maryland Code (2001, 2011 Repl.Vol.), § 1–206(a) of the Estates and Trusts Article (ET), presumes that a child born or conceived during the mother and her husband's marriage is the legitimate child of each spouse. A request for blood testing to rebut that presumption is analyzed as a motion pursuant to Maryland Rule 2–423 (“Mental or physical examination of persons”) and invokes the trial court's discretion in deciding whether ordering such testing would be in the best interests of the child. Turner v. Whisted, 327 Md. 106, 113–14, 607 A.2d 935, 939 (1992). For the reasons that follow we hold that, under the facts of this case, the circuit court did not err or abuse its discretion by considering the best interests of the subject child when rejecting the requested blood testing.

I

In order to put into proper context the underlying facts and procedural history of this case, it is helpful first to review generally the two statutory schemes at issue. We begin with the Paternity subtitle of the Family Law Article.

Until 1963, the subject now addressed in the Paternity subtitle was covered under the heading of “Bastardy” or “Bastardy and Fornication.” Eagan v. Ayd, 313 Md. 265, 268, 545 A.2d 55, 56 (1988). Those laws served “to prevent the county from having to bear the full cost of supporting an illegitimate child ... [and] to punish fornication, and the laws were deemed criminal in nature.” Id. at 269, 545 A.2d at 56. The criminal bastardy laws were in effect when, in 1941, the General Assembly enacted former Article 12, § 17 of the Code. Id. That section was added “to give the court the benefit of a relatively new scientific tool—the use of blood tests to prove nonpaternity.” Id., 545 A.2d at 56–57 (emphasis added). The provision was “patently for the benefit of the defendant,” i.e., a man alleged by the State to be the child's father. Id. at 270, 545 A.2d at 57. Under that provision, “ ‘[w]henever the defendant in bastardy proceedings denies that he is the father,’ ” then, “ ‘ upon petition of the defendant, the court shall order that the complainant, her child and the defendant submit’ ” to blood testing. Id. (quoting former Article 12, § 17 of the Maryland Code) (emphasis in original).

The law underwent major change in 1963, when the General Assembly repealed the Bastardy and Fornication Article (former Article 12) “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....’ ” Id. at 271, 545 A.2d at 57 (quoting 1963 Md. Laws, ch. 722) (alteration in original). Pursuant to this revision, “criminal ‘Bastardy’ became civil ‘Paternity.’ ” ²Id.

The goals of the 1963 enactments were reflected in the report (hereafter “Commission Report”) of the Commission to Study Problems of Illegitimacy among the Recipients of Public Welfare Monies in the Program for Aid to Dependent Children (hereafter “Commission”). Id. at 272, 545 A.2d at 58. The Commission “concerned itself with bettering the plight of the illegitimate child,” and its “recommendations were made ‘with the hope that if adopted, illegitimacy will be curtailed and amelioration of the effects of illegitimacy on children and the community at large will result.’ ” Id. (quoting the Commission Report at 22). The legislative declaration to the enactment, codified in former Article 16, § 66A, announced the State's “duty to ameliorate the deprived social and economic status of children born out of wedlock.” The declaration expressed three specific purposes for the legislation: (1) promoting the general welfare and best interests of children born out of wedlock; (2) imposing the obligations of parenthood on both parents; and (3) simplifying procedures. The legislative policy expressed in the current Paternity subtitle, nearly identical to the original declaration, is found in FL § 5–1002. The current section provides, in pertinent part:

“(a) In general.—The General Assembly finds that:

“(1) this State has a duty to improve the deprived social and economic status of children born out of wedlock; and “(2) the policies and procedures in this subtitle are socially necessary and desirable.

“(b) Purpose.—The purpose of this subtitle is:

“(1) to promote the general welfare and best interests of children born out of wedlock by securing for them, as nearly as practicable, the same rights to support, care, and education as children born in wedlock;

“(2) to impose on the mothers and fathers of children born out of wedlock the basic obligations and responsibilities of parenthood; and

“(3) to simplify the procedures for determining paternity, custody, guardianship, and responsibility for the support of children born out of wedlock.”

In 1976, the General Assembly again amended the “Paternity Proceedings” subtitle of Article 16 to “enhance effective recovery of child support payments” and “creat[e] ... the Division of Child Support Enforcement.” Eagan, 313 Md. at 272, 545 A.2d at 58. In 1982, the Paternity subtitle was further amended, in apparent response to technological advancements in blood testing. See Ch. 784 of the Acts of 1982. Previously, the putative father, by motion, could require the court to order, or the court, on its own motion, could order blood tests to determine exclusion from paternity. The 1982 amendment changed “putative father” to “a party to the proceedings.” Further, the results were admissible in evidence, not only if they excluded the alleged father, but also if they reflected at least a 97.3% probability of the alleged father's paternity. Id. A subsequent amendment in 1984 “eliminate[d] the court's discretion to reject a qualifying blood test.” Id.

In 1984, the Paternity subtitle of Article 16 “was transferred to the Family Law Article ... without substantive change,” id. at 274 n. 5, 545 A.2d at 58 n. 5, and codified at subtitle 10 (“Paternity Proceedings”) of Title 5 (“Children”). Subsequent amendments pertinent to the issue presented in this case were enacted in 1995 and 1997.

The 1995 amendment was the General Assembly's response to a decision from this Court holding that a paternity judgment could only be set aside on the basis of “ ‘fraud, mistake, ... irregularity,’ or clerical error.” Evans v. Wilson, 382 Md. 614, 630, 856 A.2d 679, 688–89 (2004) (quoting Tandra S. v. Tyrone W., 336 Md. 303, 315, 648 A.2d 439, 445 (1994)). The amendment “provide[d] an alternative way for an adjudged father to challenge a judgment of paternity,” by “permit[ting] a paternity judgment to be set aside at any time if blood or genetic testing establishes that the named father is not the biological father of the child.” Id. at 630–31, 856 A.2d at 689.SeeFL § 5–1038.

The 1997 amendment, in turn, was the General Assembly's response to the “Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the ‘Federal Act’),” which, “in an attempt to combat the increase in ‘out-of wedlock pregnancies,’ conditioned the receipt of continued federal assistance on certain federal standards.” Evans, 382 Md. at 634 n. 6, 856 A.2d at 691 n. 6 (citing Stubbs v. Colandrea, 154 Md.App. 673, 684, 686, 841 A.2d 361, 367–68 (2004)). The Federal Act required genetic testing in “certain contested cases” and required that states afford “[p]utative fathers ... a reasonable opportunity to initiate a paternity action” to establish paternity. Id. (citing Stubbs, 154 Md.App. at 687, 841 A.2d at 369). Maryland responded by adding subsection (c) to § 5–1002 of the Paternity subtitle of the Family Law Article. Section 5–1002(c) states: “Nothing in this subtitle may be construed to limit the right of a putative father to file a complaint to establish his paternity of a child.”

The current Paternity subtitle outlines the procedures “through which the state can establish paternity, and thus hold alleged fathers responsible for parental duties, such as child support. It is also the statute that allows alleged fathers to deny paternity.” In re Roberto d.B., 399 Md. 267, 275, 923 A.2d 115, 120 (2007). Generally, a complaint must be initiated before the child's eighteenth birthday, FL § 5–1006, and must be accompanied by the consent of the State's Attorney. FL § 5–1010(e). “At the trial, the burden is on the complainant to...