Staley v. Staley

• Decision Date: 12 March 1975
• Docket Number: No. 225,225
• Citation: 25 Md.App. 99,335 A.2d 114
• Parties: Melinda Margaret Stack STALEY (Appellant), v. William Cressler STALEY (Appellee).
• Court: Court of Special Appeals of Maryland

Page 99

25 Md.App. 99

335 A.2d 114

Melinda Margaret Stack STALEY (Appellant), v. William Cressler STALEY (Appellee).

No. 225.

Court of Special Appeals of Maryland.

March 12, 1975.

Certiorari Denied May 23, 1975.

Bill L. Yoho, Lanham, with whom were Robert S. Hoyert, Lanham, Gary Gasparovic, Bryans Road, and Hoyert & Yoho, Lanham, on the brief, for appellant.

George W. Shadoan, Rockville, with whom were Ferdinand J. Mack and Shadoan & Mack, Rockville, on the brief, for appellee.

Argued before ORTH, C. J., and POWERS and DAVIDSON, JJ.

DAVIDSON, Judge.

On 28 January 1974, in the Circuit Court for Montgomery County, Judge H. Ralph Miller entered a decree in which, insofar as here relevant, he awarded the appellant, Melinda Margaret Stack Staley (mother), an absolute divorce from the appellee, William Cressler Staley (husband, alleged father), on the ground of a voluntary separation. In this decree Judge Miller denied the mother's request for a permanent award of support for two children, Matthew Kale and Christopher Marc Staley, her twin sons whom she alleged were fathered by her husband. It is from that portion of the decree, which denied the paternity of the husband and his responsibility for child support, that the mother appeals.

The record shows that the parties were married on 6 July 1969 and lived together until 30 November 1971 at which time the husband left the marital home. Twin boys were born prematurely to the mother on 5 May 1973. The mother's gynecologist testified that the probable date of conception was 20 September 1972, that the probable period of conception would include the two weeks before or after the estimated date of conception, and that it was possible, albeit improbable, that conception occurred on 5 October 1972. The mother testified that on 5 October 1972 the husband visited her at her apartment and engaged in sexual relations with her. The husband asserted that he came to her apartment on that date, but only to pick up some furniture. He denied that he had intercourse with her. There was evidence to show that the mother was associating with another man (alleged paramour) under suspicious circumstances before, during and after the period of conception.

On appeal the mother contends that the chancellor erred in applying the provisions of Maryland Code (1973 Repl.Vol.) Art. 16, §§ 66A through 66P, and in particular, § 66F(b) rather than the common law 'Lord Mansfield Rule' and in admitting allegedly immaterial evidence. She concludes that the decision of the lower court was unsupported by the evidence and was clearly erroneous. Finally, she asserts that the lower court erred in not awarding her costs and attorney's fees for this appeal. We find all but the latter of these contentions to be without merit.

I

In 1777 in an ejectment case involving the question of the claimant's paternity, Lord Mansfield declared that:

'(t)he law of England is clear that the declarations of a father or mother cannot be admitted to bastardize the issue born after marriage. . . . As to the time of the birth, the father and mother are the most proper witnesses to prove it. But it is a rule founded in decency, morality, and policy, that they shall not be permitted to say after marriage that they have had no connection, and therefore that the offspring is spurious. . . .'

Goodright v. Moss, 2 Cowp. 591, 592-94, 98 Eng.Rep. 1257, 1258 (1777). In Maryland, until 1 June 1963, the 'Lord Mansfield Rule,' derived from the English common law and named for its originator, was applied, regardless of the particular kind of case involved, whenever a question of the paternity of the child of a married woman arose. See Clark v. State, 208 Md. 316, 320-25, 118 A.2d 366, 368-70 (1955) (bastardy proceeding); Dayhoff v. State, 206 Md. 25, 28-35, 109 A.2d 760, 761-64 (1954) (criminal action for non-support of infant); Hall v. State, 176 Md. 488, 492-98, 5 A.2d 916, 918-20 (1939) (bastardy proceeding); Hale v. State, 175 Md. 319, 321-23, 2 A.2d 17, 18-20 (1938) (bastardy proceeding); Harward v. Harward, 173 Md. 339, 354-56, 196 A. 318, 325-26 (1938) (divorce on ground of wife's adultery); Howell v. Howell, 166 Md. 531, 539-42, 171 A. 869, 872-74 (1934) (divorce action with claim for child support); Scanlon v. Walshe, 81 Md. 118, 129-32, 31 A. 498, 499-500 (1895) (proceeding to determine heirs under a will). This evidentiary rule, as formulated in Maryland, created a presumption that the child of a married woman was the legitimate issue of her husband, which presumption could be rebutted by clear and convincing testimony of a person other than the husband or mother, that the husband did not have intercourse with the mother at a time when conception of the child in question would have been possible. Once non-access was so shown, both the husband and mother could testify as to any other relevant facts, such as intercourse of the mother with another man and the identity of the father.

In 1963 the General Assembly enacted Art. 16, §§ 66A through 66P, Paternity Proceedings. Section 66F(b) of that statute modifies and relaxes the 'Lord Mansfield Rule' by providing, in substance, that when a married woman brings a paternity proceeding against a man who is not her husband, the presumption that the child is the legitimate child of her husband can be rebutted by the testimony of persons other than the mother and her husband that the mother was living separate and apart from her husband at the time the child was conceived. Once the presumption is rebutted, both husband and mother may testify as to non-access as well as to any other relevant matters. Moreover, the mother's burden of proof is met if she establishes by a preponderance of the evidence that the man who is not her husband is the father of her child. See Baker v. Lease, 236 Md. 246, 247-48, 203 A.2d 700, 700-01 (1964); Corley v. Moore, 236 Md. 241, 245, 203 A.2d 697, 699-700 (1964).

The mother contends that this legislative modification of the 'Lord Mansfield Rule' applies only when a married woman brings a paternity proceeding against a man other than her husband. She maintains that this modified rule should not apply when a married woman attempts to establish in an equity proceeding seeking permanent child support from her husband, the paternity of her husband for children conceived at a time when the parties were married but living separate and apart.

In Shelley v. Smith, 249 Md. 619, 627, 630-31, 241 A.2d 682, 686, 688 (1968), an equity case brought to establish the right of a child to inherit from a man not married to his mother at the time of his conception and birth, the Court of Appeals said:

'The case at bar is not, of course, the kind of paternity proceeding envisaged by Code, Art. 16, § 66F and the relaxation of the Lord Mansfield rule, as set forth in § 66F(b), at least at first blush, does not appear to be applicable to any but the special proceeding therein provided. If this is indeed the case then a quite undesirable anomaly presents itself; viz., the existence of two different rules governing the resolution of identical issues of paternity, the Lord Mansfield rule in cases like the one before us and the § 66F(b) rule in paternity proceedings under the statute. We think this should not be. It contravenes both good order and common sense.'

'(T)he rules of evidence controlling the proof of paternity ought to be the same in either case. Hall v. State, supra. And there seems to be no reason why the rules emanating, in the first instance, from the governor's commission and, in large part, adopted later by the Legislature should not apply in the relatively few cases where paternity is in issue in connection with questions involving the right to inherit rather than the right to support and maintenance. We so hold . . ..'

The Court of Appeals held that the evidentiary rules codified in § 66F(b) should be applied to inheritance proceedings involving the question of paternity.

In Altemus v. Altemus, 18 Md.App. 273, 306 A.2d 581 (1973), this Court interpreted Shelley as making the modified version of the 'Lord Mansfield Rule' applicable whenever a question of paternity arose, unless the Legislature had provided by statute for the application of a less strict rule for a particular kind of case. There, this Court said, at 18 Md.App. 281, 306 A.2d 585:

'What the Court did in Shelley was not so much to extend a specific statute beyond the limited application the Legislature gave it, but to modify what was then Maryland's version of the common law rule originally enunciated by Lord Mansfield, by engrafting onto our common law the same rule of public policy which was opened up by the enactment of 66F(b).

'While we have modernized the Maryland common law version of the Lord Mansfield Rule, this is not to say that the Legislature may not provide by statute for the application in a particular kind of case of a rule even less strict. This is true even though doing so may present an anomaly which contravenes both good order and common sense.' (Emphasis added.) ¹

Thus we recognized that in Shelley the judicially created 'Lord Mansfield Rule' had been judicially modified by the Court of Appeals to assure that uniform rules of evidence were applied, irrespective of the particular kind of case, whenever the question of paternity arose.

We find Shelley, supra, to be dispositive. The application of evidentiary rules set forth in § 66F(b) to equity actions for child support brought by a mother against a man who was her husband at the time of the conception of the child but who nonetheless denies paternity, permits uniform rules of evidence to control the proof of paternity, thereby assuring that a child's right to support does not depend upon whether the paternity issue is raised in a proceeding pursuant to Art. 16, §§ 66A through 66P or in some other kind of equity proceeding. The Legislature has not established a less strict test for such other equity proceedings. ...