Thomas v. Solis

• Decision Date: 18 November 1971
• Docket Number: No. 66,66
• Citation: 263 Md. 536,283 A.2d 777
• Parties: Nelson THOMAS v. Shirley Williams SOLIS et al.
• Court: Maryland Court of Appeals

Page 536

263 Md. 536

283 A.2d 777

Nelson THOMAS v.Shirley Williams SOLIS et al.

No. 66.

Court of Appeals of Maryland.

Nov. 18, 1971.

Frank M. Kratovil and Daniel D. McFarland, Hyattsville, for appellants.

T. E. Lauer, Deputy Director and Ellen C. Hanson, St. Louis, Mo., on the brief for National Juvenile Law Center, amicus curiae.

William J. Rubin, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Henry R. Lord, Deputy Atty. Gen., Baltimore, on the brief) for Comptroller of the Treasury, State's Atty. for Prince George's County, Atty. Gen. of Maryland and Secretary, State Dept. of Health and Mental Hygiene, part of appellees; no brief filed on behalf of other appellee.

Argued before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

FINAN, Judge.

Nelson Thomas(Thomas) filed a petition for declaratory relief in the Circuit Court for Prince George's County whereby he sought to have himself judicially declared the father of his three illegitimate children, and a further declaration as to his rights and duties in that status.Shirley Williams Solis, mother of the children, Daniel Solis, her husband, and four officials for the State of Maryland, i. e., the Attorney General, the Comptroller, the Secretary of Mental Health and Hygiene, and the State's Attorney for Rpince George's County were named defendants.Separate demurrers were filed by the Solises and by the State officials.The lower court treating both demurrers as one, sustained the demurrer without leave to amend; however, we shall consider the demurrers as separately filed.It is from this ruling by the lower court(Loveless, J.) that Thomas now appeals.The four State officials are the only appellees of record who appear.

Thomas filed his petition on July 23, 1970, on his own behalf and on behalf of the illegitimate children.In it he alleges that as a result of cohabitation with Miss Shirley Williams(now Mrs. Daniel Solis)he fathered four illegitimate children, only three of whom now survive; that the three children lived continously with him and Mrs. Solis until 1966, except for a period of 13 months during which he was confined in a reformatory for the illegal operation of a lottery; that in 1966 Mrs. Solis abandoned him and the children and upon leaving demanded that he assume the care and custody of the children; and that the children continued to live with him until July 29, 1968, at which time the Circuit Court for Prince George's County awarded custody of the children to Mrs. Solis.

The petition further alleges that Mrs. Solis has threatened to remove the children from the jurisdiction and that she has at times refused the appellant visitation rights with the children and that she and her husband intend to adopt the children.Thomas requested the court to declare him the natural father of the children, to protect his visitation rights and those of the children, to enjoin Mr. and Mrs. Solis from adopting the children without first giving notice to him and to prevent the removal of the children from the jurisdiction.Thomas additionally sought to have several State statutes which differentiate between the parents of legitimate and illegitimate children and between the children themselves declared unconstitutional as in violation of the due process and equal protection clauses of the United States Constitution and the Maryland Declaration of Rights.¹

After a hearing on the demurrer, the lower court, while recognizing that demurrers are rarely appropriate in declaratory actions (Borders v. Board of Education, 259 Md. 256, 269 A.2d 570(1970)), sustained the demurrer, ruling that no circumstances were present in the instant situation, nor allegations in the petition, which created a justiciable issue.Patuxent Oil Co. v. County Comm'rs, 212 Md. 543, 129 A.2d 847(1957);Maryland Code(1971 Repl.Vol.), Art. 31A, § 6.We must determine the correctness of this ruling.

In the recent case of Dawson v. Eversberg, 257 Md. 308, 262 A.2d 729(1970), we were presented with a situation similar to that found in the case at bar.There, the father of illegitimate children sought to remedy the status of illegitimacy by adopting the children without the consent of the mother.The lower court awarded the adoption to the father while reserving the mother's rights.We reversed the lower court's order as inappropriate; however, Judge McWilliams writing for the Court referred to a 'less traumatic approach to the problem,' other than by adoption, offered by the provisions of Code(1969 Repl.Vol.), Art. 93, § 1-208, stating:

'* * * It is beyond dispute that conditions (1), (2) and (3), as set forth in § 1-208, have been established; * * *.It seems to us that either Eversberg or Doris is free to seek a judicial declaration that the children 'shall be deemed to be the' children of Eversberg, for the purpose of bringing them within the meaning of 'child' as defined in § 1-205, within the meaning of 'issue' as defined in § 1-209 and thus enabling them to inherit from him as provided in § 3-103; and, perhaps, at some future time, should Eversberg become destitute, to become responsible for contributing to his support as required by Code, Art. 27, § 104 (1967 Repl.Vol.).Cf.Buford v. Bunn, 247 Md. 203, 230 A.2d 636(1967), andQuinan v. Schneider, 247 Md. 310, 231 A.2d 37(1967).'257 Md. at 315, 262 A.2d 733.

Although the appellant's petition in this case was filed in July of 1970, some six months after Dawson and the lower court's opinion was filed in January of 1971, not quite a year after the opinion in Dawson, it would appear that the lower court had reservations concerning the application of Dawson and whether it would cover the relief requested by Thomas.We are of the belief that under the rationale of Dawson, Thomas can obtain all of the relief to which he is rightfully entitled.

It is significant that the Attorney General in the brief filed on his own behalf and on behalf of the State officials, not only concedes the availability of but proposes declaratory relief for the appellant within the framework of the provisions of Article 93, § 1-208, ² stating:

'It would appear that the crux of Appellant's Petition for Declaratory Relief, and indeed the only issue of any substance, is Appellant's request for a declaration that he is the natural father of the children and/or that they be deemed legitimated.It is the position of the State that the case of Dawson v. Eversberg, 257 Md. 308, 262 A.2d 729(1970) establishes that under the proper circumstances the father of illegitimate children may properly bring an action for a judicial declaration that the children 'shall be deemed to be * * * his', pursuant to Article 93, § 1-208 of the Annotated Code of Maryland(1969 Repl.Vol.).'³

Elsewhere in the brief the Attorney General, in commenting on the applicability of Dawson, supra, to the case at bar, asserts:

'It is submitted that this decision (Dawson v. Eversberg) and Article 93, § 1-208 clearly refute Appellant's contention that Maryland law provides no means of legitimating the children.Not only does this decision state that an action for a declaration that the children are 'deemed to be the' children of the father, pursuant to Code, Article 93, § 1-208, is a proper procedure, but the Court's reference to Code, Article 27, § 104, 'Failure to Support Destitute Parents', clearly indicates that a legitimation accomplished pursuant to Article 93, § 1-208 acts as a legitimation for purposes other than inheritance.Indeed, as long ago as 1926, the Court of Appeals indicated in Holloway v. Safe Deposit & Trust Co., 151 Md. 321, 335, 134 A. 497, 502, that a legitimation provision contained in an inheritance statute was not limited to matters of inheritance only.It was stated there:

'We do not agree with the contention of appellees that Code, Art. 46, § 6, is an 'inheritance statute' and nothing more, nor in the contention that it confers only the right to inherit from the father.'* * *.'

Indeed, in argument on appeal, counsel for Thomas took the position that a father seeking to legitimate his child had no recourse under the Maryland law and that the only area treating upon the subject was Code, Article 16, Sec. 66, which deals with the narrow question involving bastardy proceedings to determine the putative father for the purpose of fixing responsibility for support.The view taken by the appellant regarding Article 93, Sec. 1-208 was that it provided for legitimation solely for the purposes of inheritance.However, in our opinion this is not a valid assumption.

This Court has recognized both in Dawson v. Eversberg, supra, andHolloway v. Safe Deposit & Trust Co., 151 Md. 321, 335, 134 A. 497(1926), that a legitimation provision contained in an inheritance statute is not limited in its scope and application to matters of inheritance only.There certainly should be little that is startling about such a concept, for the reason that no right or privilege in the history of the common law, or in statutory law, is accorded greater sanctity than the right of inheritance.If the law provides a means of legitimation for the purposes 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 trend of the courts throughout the country is to give a liberal interpretation to legitimation statutes or legislation which seeks to achieve that purpose, as is illustrated by the recent case of Crane v. Battle, 62 Misc.2d 137, 307 N.Y.S.2d 355(1970), wherein a father sought a filiation order from the court.At the outset of the opinion the court noted, 'The unusual facts herein present a novel twist in proceedings to establish paternity which are incorporated in Article 5 of the Family Court Act.'The court further stated 'Respondent, however, contends that the Family Court...