Tyrone W. v. DANIELLE R.

• Decision Date: 03 December 1999
• Docket Number: No. 6448,6448
• Citation: 129 Md. App. 260,741 A.2d 553
• Parties: TYRONE W. v. DANIELLE R., et al.
• Court: Court of Special Appeals of Maryland

741 A.2d 553

129 Md. App. 260

TYRONE W. v. DANIELLE R., et al.

No. 6448, Sept. Term, 1998.

Court of Special Appeals of Maryland.

December 3, 1999.

Anne C. Ogletree, Denton (Suzanne L. Hood, Easton, on the brief), for appellant.

Mary C. Murphy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellees.

Argued before WENNER, KENNEY and BYRNES, JJ.

BYRNES, Judge.

The Circuit Court for Talbot County denied appellant Tyrone W.'s motion for blood or genetic testing and to set aside an enrolled declaration of paternity respecting T.R., a male child. Tyrone challenges those rulings in this appeal, in which T.R.'s mother, Danielle R., and the Talbot County Bureau of Support Enforcement ("Bureau") appear as appellees. Because we conclude that the lower court erred in denying Tyrone's request for blood or genetic testing, we shall vacate the judgment of the circuit court, and remand the case for further proceedings.

FACTS

Danielle gave birth to T.R. on January 8, 1989. Four months later, on April 27, 1989, Danielle and Tyrone entered into a written agreement ("Agreement") in which Tyrone acknowledged paternity of T.R. and promised to pay $35.00 per week in child support and a portion of T.R.'s medical expenses not covered by insurance.¹

On May 3, 1989, Danielle filed a paternity action in the Circuit Court for Talbot County. The action was filed with the consent of the Talbot County State's Attorney's Office.² It contained a "Notice to Defendant" advising Tyrone of his right to have the issue of paternity tried by a jury and informing him that unless he elected a jury trial, that right would be deemed waived and the matter would be tried by the court. Danielle attached the Agreement to her complaint.

Six days later, on May 9, 1989, the circuit court entered a judgment of paternity declaring Tyrone to be the father of T.R. and ordering him to pay child support and medical expenses in accordance with the terms of the Agreement. Further tracking the Agreement, the court granted custody and guardianship of T.R. to Danielle and visitation rights to Tyrone, and ordered that Tyrone's support obligations continue until T.R. should reach the age of eighteen, die, marry, or become self-supporting.

The record in the 1989 paternity action does not contain a docket entry reflecting service upon Tyrone. It is undisputed, however, that Tyrone was aware of the court's judgment and abided by it.

On April 7, 1998, almost nine years after the entry of the paternity judgment, Danielle and the Bureau filed in the 1989 paternity case a petition for increase in child support, pursuant to Md.Code (1984, Repl.Vol.1999), § 10-115 of the Family Law Article ("F.L."). Tyrone responded by filing a paper entitled "Response to Petition for Increase in Child Support and Complaint to Set Aside Declaration of Paternity." He alleged that several years after T.R.'s birth, he discovered that during the approximate time of T.R.'s conception, Danielle had engaged in sexual intercourse with other men and that, contrary to what Danielle had told him before he signed the Agreement, he is not T.R.'s biological father. Tyrone asked the court to order Danielle and T.R. to submit to blood or genetic testing in accordance with F.L. § 5-1029, and further requested that it set aside the 1989 paternity judgment, should the testing confirm his belief that he is not T.R.'s biological father.

The circuit court referred Tyrone's motion for blood or genetic testing to a domestic relations master. On August 7, 1998, the master held an evidentiary hearing, at which Tyrone and Danielle testified. Tyrone explained that when Danielle told him she was pregnant with his child, he had not known that she had any other boyfriends. After T.R. was born, he was approached by a representative of the Talbot County State's Attorney's Office who presented the Agreement to him and told him that he "could get blood tests at that time." Tyrone testified that he decided not to have blood tests done then because he believed Danielle when she told him he was the baby's father, and he had no reason to think otherwise.

According to Tyrone, by the time that T.R. had reached the age of five, Tyrone could see that there was no physical resemblance between them. A few years later, Tyrone learned from a friend that around the time that T.R. was conceived, Danielle had been involved with a man named James P. Tyrone noticed that T.R. resembled James P. Tyrone introduced into evidence a photograph of T.R. and a high school yearbook containing a photograph of James P. at age fifteen or sixteen.³ Tyrone testified that when he confronted Danielle about T.R.'s resemblance to James P., she responded angrily, saying that "if" T.R. was determined to be "his" (Tyrone's) child, she would try to get an increase in child support to $70.00 per week "for putting [her] through this." Tyrone took Danielle's use of the word "if "as a concession that she had doubts as to whether he was T.R.'s biological father.

Tyrone testified that he saw T.R. only rarely and that they were not close.

In her testimony, Danielle acknowledged that she had been involved in a sexual relationship with James P., but explained that the relationship had occurred three years before T.R. was conceived and again three years after T.R.'s birth. She denied being sexually involved with James P. at the time of T.R.'s conception, and testified that she is positive that Tyrone is T.R.'s biological father.

At the conclusion of the hearing, the master issued a report recommending that genetic testing be performed to establish scientifically whether Tyrone could be excluded as T.R.'s biological father. The master found that Tyrone had admitted paternity in the past because he had had no reason to think he was not T.R.'s biological father and that, when the issue of paternity resurfaced years later, Danielle's response to it indicated that she was uncertain about Tyrone's paternity of T.R. The Bureau filed exceptions to the master's report and recommendation. It did not request a hearing.

On August 18, 1998, the circuit court issued a memorandum opinion and order rejecting the master's recommendation and denying Tyrone's motion to set aside the 1989 paternity judgment. The court noted, "there is no authority under Maryland law which permits a court to revise a paternity judgment after 30 days except in the case of fraud, mistake, irregularity, or clerical error." It further stated that even if Tyrone were to prove that "he was `mistakenly' made the father [of T.R.,]" his motion to set aside the enrolled judgment would fail because "by waiting over nine years after a final judgment was entered before filing a motion to vacate" Tyrone had "failed to act with ordinary diligence." Concluding that Tyrone had "had full knowledge of the original paternity complaint, and [that] he had knowingly waived his right to counsel, a blood test, a trial by judge or jury, and the right to call and cross-examine witnesses[,]" the circuit court ruled that Tyrone "is bound by the 1989 judgment."

In his appeal to this Court, Tyrone poses three questions for review, which we have rephrased:

I. Did the trial court err as a matter of law in ruling that the 1989 paternity judgment could not be vacated except upon a finding of fraud, mistake, irregularity, or clerical error?

II. Did the trial court err as a matter of law or fact in denying his request for blood or genetic testing under F.L. § 5-1029?

III. Were the trial court's findings of waiver and lack of ordinary diligence legally incorrect and/or clearly erroneous?

DISCUSSION

I. Timing of Appeal

Although not raised by the parties, we first address the jurisdictional question whether this appeal was timely filed. Newman v. Reilly, 314 Md. 364, 387-88, 550 A.2d 959 (1988)(holding that timeliness of filing of notice of appeal is a jurisdictional issue).

The circuit court's memorandum opinion and order was docketed on August 19, 1998. On September 16, 1998, at Tyrone's request and with the consent of Danielle and the Bureau, the court issued an "Order of Finality" purporting to certify for appeal, under Rule 2-602(b), the resolution of Tyrone's challenge to the paternity judgment. Tyrone noted this appeal the same day. At that time, the claim for an increase in child support was still pending before the circuit court. By an order dated November 4, 1998, and docketed November 6, 1998, the court granted the requested increase.

The circuit court's September 16, 1998 "Order of Finality" did not include an express finding of "no just reason for delay." For this reason, its attempt to finalize Tyrone's claim for appeal under Rule 2-602(b) was ineffective. Waters v. United States Fidelity & Guar. Co., 328 Md. 700, 707-08, 616 A.2d 884 (1992); Town of Port Deposit v. Petetit, 113 Md.App. 401, 409, 688 A.2d 54 (1997). It was not until November 6, 1998, when the order granting an increase in child support was docketed, that an order constituting a final, appealable judgment was entered. Thus, the present appeal was noted prematurely, and the thirty-day period in which to note an appeal from the November 6, 1998 final judgment has expired. As we shall explain below, Rule 8-602(e) nevertheless enables us to assume jurisdiction over the appeal. Cf. Jenkins v. Jenkins, 112 Md.App. 390, 424-26, 685 A.2d 817 (1996)(holding that that Court did not have jurisdiction over appeal pursuant to Rule 8-602(e) where appellant noted appeal prematurely because the trial court erroneously ordered a final judgment when it did not have such discretion under Rule 2-602).

Rule 8-602(e), entitled "Entry of judgment not directed under Rule 2-602," provides, in relevant part:

(1) If the appellate court determines that the order from which the appeal is taken was not a final judgment when the notice of appeal was filed but that the lower court had discretion to direct the entry of a final judgment...