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Davis v. Wicomico County Bureau of Support Enforcement

Court of Special Appeals of Maryland

April 2, 2015

JUSTIN DAVIS
v.
WICOMICO COUNTY BUREAU OF SUPPORT ENFORCEMENT

Appeal from the Circuit Court for Wicomico County, Donald C. Davis, Judge.

Argued by: Michael A. Davis of Havertown, PA, for Appellant.

Argued by: Joseph B. Spillman (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD, for Appellee.

Woodward, Kehoe, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.

OPINION

Page 1025

[222 Md.App. 232] Woodward, J.

On December 23, 2009, shortly after the birth of twin boys, Jessica Cook and appellant, Justin Davis, signed an affidavit of parentage for each child, attesting that Cook was the mother and appellant was the father of the children. On July 25, 2011, appellee, the Wicomico County Bureau of Support Enforcement (" the Bureau" ), filed a complaint seeking an order requiring appellant to pay support for the twins. At a hearing on September 16, 2011, appellant, appearing pro se, denied that he was the father of the children and requested a blood test to determine paternity. The circuit court denied the request, determining that by law appellant was the father of the children based on the signed

Page 1026

affidavits of parentage. The court then ordered appellant to pay child support. Appellant did not appeal that order.

Two years later, on September 10, 2013, appellant filed a complaint asking the circuit court again to order a blood test pursuant to Sections 5-1029 and 5-1038 of the Family Law Article (" FL" ), [222 Md.App. 233] to strike the finding of paternity by affidavit of parentage, and to set aside the 2011 child support order. The Bureau moved to dismiss the complaint. Treating the motion as one for summary judgment, the court granted summary judgment to the Bureau after a hearing on December 13, 2013.

On appeal, appellant raises one question for our review, which we have rephrased and recast as two questions:[1]

1. Did the circuit court err by granting the Bureau's motion for summary judgment?
2. Did the circuit court err in finding that FL § § 5-1029 and 5-1038 do not grant appellant an automatic right to a paternity test?

For the reasons stated below, we will affirm the judgment of the trial court.

BACKGROUND

On December 21 and 22, 2009, twin boys were born to Jessica Cook. On December 23, 2009, Cook and appellant signed an affidavit of parentage for each child in which they attested that appellant was the " natural father" of the children. The children were both given appellant's last name.

On July 25, 2011, the Bureau filed a Complaint for Child Support against appellant, seeking child support based on the signed affidavits of parentage. In response, appellant sent a letter, dated August 4, 2011, to the Bureau, which was later filed with the circuit court and designated as an answer. In the letter, appellant denied that he was the father of the children and that he owed any support to Cook for the [222 Md.App. 234] children. Appellant alleged that the affidavits of parentage could not establish paternity

because [appellant's] signature was obtained through fraud or misrepresentation. After Jessica Cook and [appellant] had broken up as a couple, she called [appellant] and said she was pregnant and from what she told [appellant, he] was led to believe that Nicholas Marley Davis and Benjamin Davis were [appellant's] children. No one explained to [appellant] what significance there was to [appellant] signing an Affidavit of Parentage.

Appellant concluded the letter by asking the court to administer a paternity test.

The circuit court held a hearing on September 16, 2011. Appellant appeared pro se at the hearing and declined the court's offer to continue the hearing until he could obtain a lawyer. The court determined that appellant knowingly and voluntarily waived his right to an attorney. The court admitted into evidence the two signed affidavits of parentage and heard testimony from Cook and appellant.

Page 1027

Cook testified that she and appellant dated and then broke up before she was pregnant, and that, when they got back together in May 2009, she told appellant that she was two months pregnant. Cook acknowledged in her testimony that in May 2009, she communicated with appellant that " there is a possibility that those children were not his." According to Cook, she " was under the understanding that, you know, regardless of whether or not these were biologically his children that we were going to raise them together." Cook testified that she and appellant remained in a steady relationship throughout the remainder of her pregnancy, and that appellant proposed marriage to her more than once. According to Cook, while at the hospital after she gave birth, she and appellant signed the affidavits of parentage for both children.

Appellant testified that, when he signed the affidavits of parentage, he believed that he was the biological father of the children. Appellant testified, however, that he began to doubt that he was the biological father of the children " afterwards [222 Md.App. 235] when the children came out visibly, visibly Caucasian." Appellant also testified that there was only a three-week period where he and Cook did not have a sexual relationship prior to getting back together in May of 2009. Appellant asked multiple times during the hearing for a paternity test.

Counsel for the Bureau argued to the trial court that, pursuant to FL § 5-1028, an individual who signs an affidavit of parentage has sixty days to rescind the affidavit; otherwise the only challenge to such affidavit must be based on fraud, duress, or material mistake of fact. The Bureau argued that (1) appellant knew that there was at least a possibility that he was not the father of the children, but he signed the affidavits nonetheless; and (2) the form makes clear to the signatory of the legal responsibilities that one assumes in signing the affidavit.

In response, appellant argued:

I was lead [sic] to believe the children were mine. That's the only reason why I signed that. So in this case, I'm just asking for a paternity test. That's it. I'm asking for a paternity test to actually prove paternity. I don't feel that me signing a piece of paper in the hospital that I wasn't explained - - I swear, Your Honor, I was never told that by me signing this Affidavit of Parentage that it would hold me binding even though I'm not the father.

The circuit court found Cook's testimony that she had informed appellant before the birth of the possibility that he was not the biological father " irrelevant because [appellant] armed with whatever knowledge he had chose to voluntarily execute an affidavit establishing him as the father of these children." The court noted that there was no evidence before the court " that would even broach the subject of fraud, duress, or . . . material mistake of fact." The court told appellant:

You were clearly--you meaning, both mother and father, were clearly advised, don't sign if you have a doubt. You can get assistance if you want because you don't understand what you're about to sign. But the moment you affix your pen to that paper and sign your name, you have obligated [222 Md.App. 236] yourself to these children. And it is the finding of this Court that there is no fraud, duress, or mistake of material [ ] fact that would justify the rescission of the Affidavits of Parentage properly executed. These are your children by law, and that's the end of the story.

(Emphasis added).

The trial court then heard evidence regarding child support from a child support

Page 1028

specialist with the Wicomico County Child Support office. The court ruled from the bench, ordering that " the father of these children shall be required to pay support from commencing on July 25, 2011 in the amount of $197.00 per month. That Order will last until December 25, 2011. Thereafter, effective January 25, 2012, the father shall pay support for both children in the total amount of $325.00 per month." The court immediately corrected itself and ordered the latter amount amended to $352.50 each month. The ...


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