Taxiera v. Malkus

• Decision Date: 05 September 1990
• Docket Number: No. 144,144
• Citation: 578 A.2d 761,320 Md. 471
• Parties: Elaine A. TAXIERA v. Frederick C. MALKUS, Personal Representative of the Estate of Levi Travers Brown, Jr. Sept. Term 1989.
• Court: Maryland Court of Appeals

Page 471

320 Md. 471

578 A.2d 761

Elaine A. TAXIERA v. Frederick C. MALKUS, Personal Representative of the Estate of Levi Travers Brown, Jr.

No. 144 Sept. Term 1989.

Court of Appeals of Maryland.

Sept. 5, 1990.

George J. Goldsborough, Jr. (Mitchell J. Cornwell, Goldsborough & Tolley, all on brief), Easton, for appellant.

John Wheeler Glenn (Avery B. Berdit, Preston & Glenn, P.A., all on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, McAULIFFE and CHASANOW, and ADKINS ^*, J. (retired).

MURPHY, Chief Judge.

This case involves the right of an after-born illegitimate child to establish the paternity of her deceased putative father.

I.

On July 30, 1987, Elaine Taxiera, a Delaware resident, filed a declaratory judgment action in the Circuit Court for Dorchester County against Frederick C. Malkus, the Personal Representative of the Estate of Levi Brown, Jr. Elaine sought a declaration under Maryland Code (1974), § 1-208 of the Estates and Trusts Article, that Levi was the father of her illegitimate daughter, Leah, who was born four months after Levi's death. Section 1-208(b) provides that a child born to parents who have not participated in a marriage ceremony with each other 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." ¹

On November 12, 1987, during the pendency of the declaratory judgment action, Elaine filed a "Complaint to Establish Paternity" in the Circuit Court for Dorchester County, pursuant to Code (1984), Subtitle 10 entitled "Paternity Proceedings," §§ 5-1001 through 5-1048 of the Family Law Article (the paternity statute). In this action, Elaine asked that Levi be declared the father of Leah and that child support be ordered payable from Levi's estate. Elaine alleged that she became pregnant by Levi on June 13, 1986; that they were not married to each other; that Leah was born in Delaware on January 27, 1987; and that Levi was killed in the interim on October 2, 1986.

II.

Under the paternity statute, the General Assembly declared in § 5-1002 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."

Section 5-1005(a) recognizes that "[a]n equity court may determine the legitimacy of a child pursuant to § 1-208 of the Estates and Trusts Article"; subsection (b) states that "paternity proceedings under this subtitle" are not limited "except after the legitimation of a child under this section." Section 5-1010, and ensuing sections, deal with the complaint against the putative father of the child born out of wedlock; they are couched in present tense terms, i.e., of a putative father alive at the time that the paternity action is in process. Section 5-1032 provides that if the alleged father is determined by the court or jury to be the father, the court shall pass an order that so declares and "provides for the support of the child." Section 5-1043 provides that if a father dies after he is judicially declared to be the child's father, or after he is ordered to make support payments, the court may, inter alia, summon the personal representative of the deceased father and order that an amount considered proper for the support of the child be paid from the estate.

III.

In answer to interrogatories served upon her, Elaine stated that she first met Levi on August 24, 1985; that their sexual relationship began on October 9, 1985; that she saw Levi for the last time on July 20, 1986; and that during the time period in question, she did not have sexual relations with anyone other than Levi. Elaine admitted that Levi at one time questioned whether he was responsible for Elaine's pregnancy. ²

Malkus moved to dismiss the paternity complaint on November 19, 1989. He claimed that the paternity statute has no application absent a judicial determination of parentage before the putative father dies; moreover, he contended that the right to child support, as claimed by Elaine, terminates upon the death of the parent. In opposition to the motion to dismiss, Elaine claimed that Leah would be denied equal protection of the law if § 5-1043 of the Family Law Article were construed to prevent her from establishing Levi's paternity posthumously.

On May 5, 1989, several weeks prior to the scheduled hearing on the motion to dismiss, Elaine filed a "Notice of Intent to Rely on Foreign Law," pursuant to Code (1989), § 10-504 of the Courts and Judicial Proceedings Article. She thereby stated "her intent to rely on the law of the State of Delaware, with respect to the determination and adjudication of [Leah's] substantive rights to establish her status" as Levi's child. ³

On Malkus's motion, Elaine's earlier filed declaratory judgment action was stayed pending determination of the paternity action. On May 23, 1989, the court (Goudy, J.) dismissed Elaine's paternity complaint. It considered only two issues: (1) whether Delaware or Maryland law should apply to the action and (2) whether the paternity action could be maintained after the putative father's death.

Noting the absence of Maryland precedent on the choice of law issue, the court relied upon the Restatement of Conflicts of Law § 454 (1934) and 10 Am.Jur.2d Bastards § 76 (1963) for the proposition that actions under what was formerly known as "bastardy or filiation" statutes of one state could not be maintained in another state. It, therefore, concluded that Maryland law would apply to this case.

The court also noted the lack of Maryland law regarding posthumous paternity proceedings. It recognized that the paternity statute provided for a continuance of the proceedings after the death of the father, but under limited circumstances. Specifically, the paternity statute, § 5-1043 of the Family Law Article, pertains to payment of child support from the deceased father's estate. ⁴ The court reasoned that § 5-1043 "becomes relevant only after one or two triggering events ... either: (1) the court has already declared the putative father to be the father; or (2) the court has ordered the father to make child support payments." Because neither of these two prerequisites had occurred, the court concluded that the action could not proceed under § 5-1043.

The court then addressed Elaine's argument that the "Survival of Actions" statute, § 6-401(c) of the Courts Article, permits the action to continue notwithstanding Levi's death. That section, as the trial court correctly observed, "allows an equity action to continue after the death of the defendant if the court would be able to grant effective relief in spite of the death." Because the trial court believed that the only remedy provided by the paternity statute is the award of child support, it said that the issue was "whether the father's estate can be obligated to pay child support after the death of the father." As to this, the court held that the common law rule is that a court in equity does not have the power to require the payment of child support by a deceased father's estate, citing Wooddy v. Wooddy, 258 Md. 224, 232, 265 A.2d 467 (1970), and Blades v. Szatai, 151 Md. 644, 647-48, 135 A. 841 (1927). Reasoning that "statutes in derogation of common law will be strictly construed" and finding no expression of legislative intent contrary to the common law rule, the court determined that it was "powerless to grant relief as required by the Survival of Actions statute" and dismissed the complaint.

Elaine appealed to the Court of Special Appeals. We granted certiorari prior to argument before that court to consider the significant issue of public importance presented by the case.

IV.

Before us, Elaine presents four questions: (1) whether Delaware or Maryland law applies to this action; (2) whether the constitutional guarantees of equal protection and due process of law require that posthumous paternity proceedings be encompassed under the Maryland paternity statute; (3) whether under the paternity statute, a deceased putative father's estate may be liable for child support to an after-born child; and (4) whether a determination of paternity alone constitutes "effective relief," so that a posthumous paternity action may survive notwithstanding the death of the putative father.

Elaine's complaint seeks relief under the provisions of Maryland's paternity statute, namely, that the paternity of Leah be established under that statute, and that the court award child support to her pursuant to its provisions. As the answer to these issues turns upon the application of the Maryland Paternity Statute, Elaine's notice of intention to rely on the law of Delaware to prove her case is wholly inconsistent with the thrust of her complaint. Therefore, we find no error in the trial court's refusal to apply the law of that state.

As earlier noted, under § 1-208(b)(1) of the Estates and Trusts Article, a child born out of wedlock shall be considered the child of his father only if the father "[h]as...