Skeens v. Paterno

• Decision Date: 01 September 1983
• Docket Number: 1576,Nos. 1390,s. 1390
• Citation: 60 Md.App. 48,480 A.2d 820
• Parties: Debra Lynne SKEENS, et al. v. Jeffrey PATERNO. Debra Lynne SKEENS, et al. v. Jeffrey PATERNO. ,
• Court: Court of Special Appeals of Maryland

Page 48

60 Md.App. 48

480 A.2d 820

Debra Lynne SKEENS, et al. v. Jeffrey PATERNO.

Debra Lynne SKEENS, et al. v. Jeffrey PATERNO.

Nos. 1390, 1576, Sept. Term, 1983.

Court of Special Appeals of Maryland.

Sept. 7, 1984.

Edward John Skeens, Suitland, for appellants.

Joseph S. Kaufman and Phyllis W. Brown, Baltimore, with whom were Melnicove, Kaufman, Weiner & Smouse, P.A., Baltimore, on the brief, for appellee.

Argued before GARRITY, ADKINS and ALPERT, JJ.

ADKINS, Judge.

Although this suit began as a battle about adoption, it is now essentially a dispute about visitation rights of the father and paternal grandparents of an illegitimate child.

On January 21, 1983, appellant Debra Skeens, then an unmarried minor, bore a child. The father was appellee Jeffrey Paterno, an enlisted member of the United States Navy. Debra declined Jeffrey's offer of marriage. Prior to the child's birth, she and her parents, appellants Edward and Dorothy Skeens, had made plans to place the child for adoption. Three days after the child's birth, Jeffrey sued Debra (sometimes denominated Deborah) and her parents in the Circuit Court for Prince George's County. Jeffrey sought to enjoin Debra and her parents from proceeding with or engaging in any suit relative to the child's adoption. He also requested custody of the child.

In the course of a plethora of subsequent judicial activity, including an appeal to this court, Skeens v. Paterno, No. 94, September Term, 1983 (May 23, 1983, unreported) the adoption issue disappeared from the case. By order dated September 2, 1983, modified by an order of December 8, 1983, Judge Ahalt:

1. Awarded custody of the child to Debra, subject to liberal visitation rights in favor of Jeffrey, those rights to be exercised through his parents, Peter and Zola Paterno during Jeffrey's absence on Navy duty;

2. Ordered Jeffrey to pay Debra $200 per month for the child's support;

3. Ordered Edward and Dorothy Skeens to pay all the costs of the proceedings, including the fees of a medical expert, the fees of the court-appointed guardian for Debra, and the fees of the court-appointed attorney for the child:

4. Denied the Skeens's motion for reimbursement of certain medical expenses incurred in connection with the child's birth; and 5. Amended the child's birth certificate to include Jeffrey's name as his father.

The Skeenses appealed. Although they argue at length the constitutionality of Maryland's adoption law (Code, Art. 16, §§ 67 et seq., including the provisions added by Ch. 514, Acts of 1982), that question is moot since, as we have observed, adoption is no longer an issue in the case. The principal remaining issue raised by the appellants has to do with the award of visitation rights. As to this, they assert that Jeffrey could not seek custody of the child absent a decree of filiation. They question the authority of the chancellor to award visitation rights to the paternal grandparents of an illegitimate child. And they argue that the liberal visitation rights established by the chancellor are unauthorized by law and not in the best interests of the child.

In addition, they assert that Jeffrey should not have been permitted to pursue khis custody action until he had paid the costs of the first appeal; that the trial court lacked jurisdiction to proceed while that appeal was pending before the Court of Appeals; that Jeffrey should have been required to pay the hospital and medical expenses associated with the baby's birth; and that they (the elder Skeenses) should not have been ordered to pay the court costs below.

Jeffrey cross-appealed, raising but a single issue: whether the chancellor's order should have been "interim in nature so that [Jeffrey] is not prejudiced in his desire to obtain custody." ¹

We now proceed to consideration of these contentions.

I. THE APPEAL

A. Visitation Rights

In his December 8, 1983, order Judge Ahalt said:

[T]he Court is persuaded by a preponderance of the evidence that it will be in [the child's] best interest to be in the custody of [its] mother. The Court is further persuaded by a preponderance of the evidence that it will be in [the child's] best interest to have reasonable and extended visitation with [its] father including but not limited to at least two consecutive days and nights per week, alternating major holidays of New Years, Easter, Memorial Day, Thanksgiving and Christmas and six consecutive weeks during the summer months of June, July and August of each year. The two consecutive days and nights will be each and every Thursday from 6:00 p.m. until Saturday at 6:00 p.m. The Court is further persuaded by a preponderance of the evidence that it is in the best interest of [the child] for Jeffrey to exercise his visitation while enlisted in the U.S. Navy through his parents, Peter and Zola Paterno, at their residence and that they may physically take custody of [the child] during such visitations.

1. Decree of Filiation

Despite the facts that Jeffrey has asserted that he is the child's father, that Debra has admitted it, and that no one has denied it, the Skeenses assert that Jeffrey may not seek custody of the child, or visitation with it, absent a filiation decree: a judicial determination of paternity. They made a similar argument in the first appeal in this case when they contended that Jeffrey could not withhold his consent for the child's adoption unless he had first been judicially determined to be the father. We rejected that argument. Skeens v. Paterno, supra, slip op. at 11. We reject the like contention made here.

Section 3-602(a) of the Courts and Judicial Proceedings Article grants a court of equity "jurisdiction over the custody, guardianship, legitimation, maintenance, visitation and support of a child." In Marshall v. Stefanides, 17 Md.App. 364, 302 A.2d 682 (1973) we construed that statute's predecessor, Article 16, § 66(a). ² The case involved a father's attempt to obtain custody of his illegitimate children. There was no decree of filiation or legitimation. Nevertheless, Judge (now Chief Judge) Gilbert opined "that the law of Maryland is that the father of illegitimate children may not be denied the right to seek custody of those children." 17 Md.App. at 376, 302 A.2d 682. We see no reason to depart from that holding. And if a father may seek custody of an illegitimate child sans a filiation decree, he surely may obtain visitation rights without one. That is all Jeffrey won in this case.

Moreover, even if legitimation were required as a prerequisite to Jeffrey's request, we think it was accomplished here.

Section 1-208(b) of the Estates and Trusts Article provides that an illegitimate child

shall be considered to be the child of his father only if the father

(1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings; or (2) Has acknowledged himself in writing to be the father; or

(3) Has openly and notoriously recognized the child to be his child; or

(4) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.

In Thomas v. Solis, 263 Md. 536, 542, 283 A.2d 777 (1971) the Court of Appeals observed that while in this statute (then Art. 93 § 1-208) the

legitimation provision [although contained in an inheritance statute] is not limited in its scope and application to matters of inheritance ... such a procedure should certainly be of sufficient legal validity to establish other rights, ofttimes inferior to that of inheritance, arising from the relationship existing between parent and legitimate issue.

The legislature, too, has recognized § 1-208 as a legitimation statute, for § 3-602(a) of the Courts Article, in explaining how a court may exercise the jurisdiction bestowed by the latter section, lists as one function the determination "of the legitimacy of a child pursuant to § 1-208 of the Estates and Trusts Article." See State v. Rawlings, 38 Md.App. 479, 381 A.2d 708 (1978).

The Skeenses, it seems, would have us read § 1-208(b) as permitting legitimation only by way of judicial decree. It is true that in Thomas the Court of Appeals remanded the case for a judicial declaration as to the legitimacy of the children there involved. But that was the precise relief Thomas was seeking. The statute is clearly not limited to the procedure described in paragraph (1); it is written in the disjunctive, and any one of the four methods specified may be the basis for legitimation. A judicial decree is not the only route to that goal. Williams v. Williams, 18 Md.App. 353, 359, 306 A.2d 564 (1973), overruled on other grounds, 49 Md.App. 349, 431 A.2d 749 (1981). See also Davis v. Schweiker, 553 F.Supp. 158 (D.Md.1982) and Massey v. Weinberger, 397 F.Supp. 817, 821 (D.Md.1975).

In the case at bar, Jeffrey "acknowledged himself in writing" to be the child's father. He did so in the very first pleading he filed in this case. That was sufficient to satisfy the requirements of paragraph (2) of § 1-208(b). There was no need for him to obtain a filiation decree in order to seek custody of the child or visitation with it.

2. Grandparental Visitation

The Skeenses also aver that the visitation rights afforded Jeffrey's parents, Peter and Zola Paterno, are not permissible under Maryland law. This contention is not based on any claim as to lack of fitness on the part of the elder Paternos, nor could it be, in light of the record before us. Rather, it is grounded on the flat assertion that "the court had no jurisdiction or authority to award visitation rights to the paternal grandparents." This is the case, say the Skeenses, because § 3-602(a)(4) of the Courts Article so requires.

As we have previously noted, § 3-602(a) gives equity courts broad authority to determine, among other things, the custody of children. Paragraph (4) of that subsection deals specifically with visitation rights as a type or subclass of custody. It allows...