Payne v. Prince George's County Dept. of Social Services

• Decision Date: 01 September 1985
• Docket Number: No. 1133,1133
• Citation: 67 Md.App. 327,507 A.2d 641
• Parties: David Ross PAYNE v. PRINCE GEORGE'S COUNTY DEPARTMENT OF SOCIAL SERVICES, et al. ,
• Court: Court of Special Appeals of Maryland

Page 327

67 Md.App. 327

507 A.2d 641

David Ross PAYNE v. PRINCE GEORGE'S COUNTY DEPARTMENT OF SOCIAL SERVICES, et al.

No. 1133, Sept. Term, 1985.

Court of Special Appeals of Maryland.

May 7, 1986.

Russell P. Butler, Suitland, for appellant.

Nancy B. Shuger, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen. and Joseph B. Spillman, Asst. Atty. Gen. on brief), Baltimore, for appellees.

Argued before WILNER, ADKINS, and BELL (ROSALYN B.), JJ.

ADKINS, Judge.

In this case we are asked to determine what statute of limitations, if any, applies to a proceeding for child support brought under what is now Subtitle 10, "Paternity Proceedings," of the Family Law Article. The facts are substantially undisputed. We summarize them.

Facts

On April 9, 1979, a child, Trevor, was born out of wedlock. On May 9, 1983, appellee, Prince George's County Department of Social Services, filed a paternity proceeding on behalf of Trevor. Named as co-respondents were appellant, David Ross Payne (Trevor's alleged father) and Trevor's mother. ¹ The petition alleged, inter alia, that public assistance had been paid to the mother and that she had assigned her rights of child support to the State. The relief requested was a finding that Payne was Trevor's father and an order requiring him to pay for Trevor's support and for the mother's medical and hospital expenses in connection with the child's birth.

When the petition was filed, Article 16, § 66(e) was in effect. It provided:

Proceedings to establish paternity under the subtitle "Paternity Proceedings" and to charge the putative father of an illegitimate child or children with their support and maintenance shall be commenced during the pregnancy of the mother thereof or within two ... years after the birth of such child or children; except that if the putative father of such child or children has acknowledged in writing the paternity of the child or children or has made payment or otherwise provided for the support and maintenance of the child or children, it is sufficient if the proceedings are commenced within two ... years of the date of such acknowledgement or the last such payment on provision.... ²

Just short of a month after the petition in this case was filed, the Supreme Court decided Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983). That decision held unconstitutional, on equal protection grounds, a Tennessee statute which provided for a two year limitation period and was in many respects very similar to Art. 16, § 66(e). On August 4, 1983, some three months after the filing of the petition, the Court of Appeals overruled its earlier decision in Thompson v. Thompson, 285 Md. 488, 404 A.2d 269 (1979) and on the authority of Pickett declared Art. 16, § 66(e) to be unconstitutional. Frick v. Maldonado, 296 Md. 304, 462 A.2d 1206 (1983).

About a year and a half after that, in February 1985, Payne responded to the paternity petition. ³ He denied paternity. He claimed the action was barred by limitations citing § 5-1006 of the Family Law Art.; see note 2, supra. And he claimed the action was barred by laches.

On April 19, 1985, the Circuit Court for Prince George's County (Melbourne, J.) heard Payne's limitations and laches defenses. Judge Melbourne ruled:

[I]t is the opinion of this Court that a right to be supported by one's parents is a substantive right that belongs to a child and it cannot be waived by either parent nor by the State. They would be depriving children of the right to be supported by their parents.... The two year Statute of Limitations in Maryland is unconstitutional ... and equitable latches [sic ] ... that's not applicable either....

The determination of Payne's paternity then proceeded on a stipulation of facts which, in addition to other evidence, included a blood test showing a 99.97 percent probability that he was Trevor's father. On May 8 Judge Melbourne signed an order adjudicating Payne to be Trevor's father and ordering Payne to pay $834 in "back support for the minor child" plus $270 for the blood test. ⁴ This appeal followed.

Issues

Although Payne states it somewhat differently in his brief, his basic argument is that the three-year statute of limitations provided by § 5-101 of the Courts and Judicial Proceedings Article applies to bar this action, and that a three-year statute of limitations is constitutional in a paternity proceeding. As noted, he also contends that the action is barred by laches.

The Department argues that § 5-101 is not applicable to paternity proceedings, (1) as a matter of legislative intent, (2) because it is a State agency against which limitations does not run, and (3) because 42 U.S.C. § 666(a)(5) pre-empts it. Additionally, the Department contends that if § 5-101 applies, it is an unconstitutional denial of equal protection, since it would treat illegitimate children seeking support less favorably than similarly-situated legitimate children.

We hold that on the facts of this case, § 5-101 does apply, subject to the tolling provisions of § 5-201. This holding eliminates any equal protection problem and renders it unnecessary for us to address most of the contentions we have summarized. Accordingly, although we think Judge Melbourne's reasoning swept too broadly, we believe her judgment reached the correct result and we affirm it. We explain.

Limitations

In Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), the Supreme Court was presented with Texas law under which a father could be judicially required to provide support for a legitimate child but could not be required to do so for an illegitimate child. This was held to be an unconstitutional denial of equal protection of the law because "once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother." 409 U.S. at 538, 93 S.Ct. at 875.

Texas responded to this pronouncement, but in somewhat grudging fashion. It provided procedures whereby paternal support could be sought on behalf of an illegitimate child, but it further provided that the support action had to be brought within one year of the child's birth. The Supreme Court struck down the one-year limitation period in Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982). Relying in part on Gomez, Justice Rehnquist explained that a state which grants an opportunity for legitimate children to obtain support also must grant that opportunity to illegitimates. And to survive equal protection analysis, "it is clear that the support opportunity provided by the State to illegitimate children must be more than illusory." 456 U.S. at 97, 102 S.Ct. at 1553. On the other hand, the Court recognized that:

[t]he fact that Texas must provide illegitimate children with a bona fide opportunity to obtain paternal support does not mean ... that it must adopt procedures for illegitimate children that are coterminous with those accorded legitimate children. Paternal support suits on behalf of illegitimate children contain an element that such suits for legitimate children do not contain: proof of paternity.

Id.

Recognizing a state's interest in prohibiting stale or fraudulent claims in light of what it perceived as difficulties inherent in proving paternity, the Court adopted a two-pronged test for application to paternity statutes of limitation:

(1) The period within which suit must be brought by or on behalf of illegitimate children must be sufficiently long to present a reasonable opportunity for those with an interest in the child to assert claims on its behalf; and

(2) Any time limitation placed on that opportunity must be substantially related to the state's interest in avoiding the litigation of stale or fraudulent claims. 456 U.S. at 99-100, 102 S.Ct. at 1554-1555.

The Texas one-year statute flunked both prongs of this test. A one-year period of limitations was an unconstitutional denial of equal protection. What about two years?

That question was answered in Pickett, supra. Applying a "heightened level of scrutiny" to the equal protection claim, 462 U.S. at 8, 103 S.Ct. at 2204, and recognizing that "scientific advances in blood testing" have attenuated the concern with stale and fraudulent claims, id. at 17, 103 S.Ct. at 2208, Justice Brennan applied the Mills test to Tennessee's two-year statute and found it wanting. As we have seen, in Frick, supra, the Court of Appeals followed Pickett to strike down Maryland's former two-year statute. Judge Smith, writing for the Court, noted that in Maryland, as in Tennessee, both mothers and fathers are generally liable for child support and that in both states support for legitimate children may be sought throughout their minority. He could discern no significant distinction between the Maryland statute and the Tennessee statute, so the former met the same fate the Supreme Court had meted out to the latter.

Payne is aware of this constitutional history. He accepts the fact that when he filed his plea of limitations, the Maryland two-year statute had been held unconstitutional. He makes no argument that Frick should be applied only prospectively in light of the fact that it had not been decided when this paternity action was filed. Thus, we have no occasion to consider the sort of prospective-retrospective analysis discussed in Linkletter v. Warden, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Nor need we probe various theories as to what happens to a statute that is declared unconstitutional--is it void ab initio? Johnson v. State, 271 Md. 189, 315 A.2d 524 (1974). Is it merely invalid for the future (after the declaration of invalidity)? Perkins v. Eskridge, 278 Md. 619, 631, 366 A.2d 21 (1976). Or may it retain some continuing effect for some purposes? Id. at 632, 366 A.2d 21. ⁵ Like Payne,...