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Davis v. Wicomico County Bureau

Court of Appeals of Maryland

April 25, 2016


Barbera, C.J. [*] Battaglia Greene Adkins McDonald Watts Rodowsky, Lawrence F. (Retired, Specially Assigned) JJ.

Battaglia, J.

Justin Davis, Petitioner, twice sought to secure a paternity test years after he had executed an Affidavit of Parentage, in which he attested, shortly following the birth of twin boys in 2009, that he was their father. The Wicomico County Bureau of Support Enforcement ("Bureau"), Respondent, in 2011, had filed a Complaint for Child Support against Mr. Davis, in which it alleged that Mr. Davis was responsible for support, because he had attested that he was the father of the twins; Mr. Davis, in turn, requested a paternity test and denied parentage of the children, alleging that his signature on the affidavit had been obtained through fraud or misrepresentation. Judge David B. Mitchell, then retired but specially sitting in the Circuit Court for Wicomico County, ordered Mr. Davis to pay child support; he also denied the request for a paternity test, because Mr. Davis had executed the affidavits of parentage and there was "nothing in this record and before this Court today that would even broach the subject of fraud, duress, or material mistake of fact." Mr. Davis did not note an appeal.

Two years later, Mr. Davis, however, filed a "Complaint for Blood Test, to Challenge Finding of Paternity (By Affidavit of Parentage), and to Set Aside Child Support Order" in the Circuit Court for Wicomico County. Judge Donald C. Davis denied the request for a paternity test, concluding that "[Mr. Davis] has no absolute right to blood or genetic testing under FL § 5-1038; even if he did, he has waived his right by failing to appeal the trial judge's decision in 2011; and there is no other meritorious basis asserted to grant [Mr. Davis] his requested relief."

Mr. Davis then appealed to the Court of Special Appeals, which, in a reported opinion, affirmed.[1] 222 Md.App. 230, 112 A.3d 1024 (2015). Our brethren concluded that Mr. Davis's claims were barred by res judicata, but also reached the merits. Judge Patrick L. Woodward, writing on behalf of the Court, in interpreting the statutes in issue, held that "the plain language and the legislative history of FL §§ 5-1028 and 5-1038 support the trial court's determination" that Mr. Davis "is not entitled to a blood or genetic test." Id. at 246, 112 A.3d at 1033.

We granted certiorari, 444 Md. 638, 120 A.3d 766 (2015), to consider the following questions:

1.Is blood or genetic testing mandated when demanded by a putative father who, from the beginning of the legal process, presents evidence of fraudulent affidavits of parentage?
2. Does extrinsic evidence of fraud exist where the state's attorney actively participates in the deception and fraud without disclosing it to the putative father or to the trial court during two trials?[2]

With respect to the seminal issue of res judicata as to whether the 2011 child support order from which Mr. Davis did not appeal precludes him from relitigating the same claims in 2013, we have defined res judicata as:

[A] judgment between the same parties and their privies is a final bar to any other suit upon the same cause of action, and is conclusive not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit. . . .

Prince George's County v. Brent, 414 Md. 334, 342, 995 A.2d 672, 677 (2010), quoting MPC, Inc. v. Kenny, 279 Md. 29, 32, 367 A.2d 486, 488-89 (1977). The requirements of the doctrine of res judicata are:

(1) that the parties in the present litigation are the same or in privity with the parties to the earlier dispute; (2) that the claim presented in the current action is identical to the one determined in the prior adjudication; and (3) that there was a final judgment on the merits.

Colandrea v. Wilde Lake Community Ass'n, Inc., 361 Md. 371, 392, 761 A.2d 899, 910 (2000). Res judicata "avoids the expense and vexation attending multiple lawsuits, conserves the judicial resources, and fosters reliance on judicial action by minimizing the possibilities of inconsistent decisions." Cochran v. Griffith Energy Services, Inc., 426 Md. 134, 140, 43 A.3d 999, 1002 (2012), quoting Anne Arundel County. Bd. of Educ. v. Norville, 390 Md. 93, 106-07, 887 A.2d 1029, 1037 (2005).

Mr. Davis does not dispute that the parties in the 2011 and 2013 cases are the same, nor that the claims were identical in both. Rather, he argues that res judicata should not bar his 2013 Complaint, because the equitable, remedial nature of paternity actions requires continuous vigilance by the judiciary, so that there cannot be a final judgment against which res judicata is measured.

A final judgment is "a judgment, decree, sentence, order, determination, decision, or other action by a court . . . from which an appeal . . . may be taken", according to Section 12-101(f) of the Courts and Judicial Proceedings Article. We have stated that, "[a] ruling of the circuit court, to constitute a final judgment, must, among other things, be an 'unqualified, final disposition of the matter in controversy.'" Addison v. Lochearn Nursing Home, LLC, 411 Md. 251, 262, 983 A.2d 138, 145 (2009), quoting Gruber v. Gruber, 369 Md. 540, 546, 801 A.2d 1013, 1016 (2002).

In the present case, Judge Mitchell's order requiring Mr. Davis to pay child support and denying his request for a paternity test was a final judgment. Mr. Davis, of course, argues that because the Court continues to have jurisdiction over child support and parentage, that the order could not be final. Although we have specifically not opined about this subject, Judge Alan Wilner, then writing on behalf of the Court of Special Appeals, recognized that, "[a]n order establishing child support, or determining any other matter over which a continuing jurisdiction exists, if possessing all other required attributes of finality, is a judgment (see Md. Rule 1-202([o])). . . ." Haught v. Grieashamer, 64 Md.App. 605, 611, 497 A.2d 1182, 1185 (1985). Maryland Rule 1-202(o) defines judgment as "any order of court final in its nature entered pursuant to these rules." Therefore, we agree with the Court of Special Appeals that res judicata would have barred the 2013 action.

The dissent, however, raises an argument never raised below before Judge Davis in 2013, nor before the Court of Special Appeals, that res judicata would not have barred the 2013 action, because Judge Mitchell in 2011 allegedly never addressed Mr. Davis's claim for genetic testing. In the 2011 action, however, there were two issues queued up for decision by Judge Mitchell: one brought on behalf of the twins as to whether Mr. Davis should be ordered to pay child support and the other raised by Mr. Davis, as to whether Mr. Davis should have been afforded a genetic test because of alleged fraud in Section 5-1028(d)(2)(i) governing whether an affidavit of parentage was subject to attack. With respect to Mr. Davis's claim, he repeatedly argued that he had been the victim of fraud and requested genetic testing:

[BUREAU]: But it's my understanding Mr. Davis would like to present argument to the Court today to challenge the validity of those Affidavits under the Paternity Statute.
[MR. DAVIS]: This is the whole reason we are here. The only thing I'm asking for is a paternity test to prove that I actually have an obligation to these children legally.
[THE COURT]: All right.
[MR. DAVIS]: That's the only thing I'm asking for. I'm not asking for anything else. I'm just asking for a paternity test to actually prove paternity. That's the only thing I want, Judge.
[MR. DAVIS]: I'm not sure – I'm not sure on the actual timing. The only thing that I think is relevant here is the fact that I'm just asking for a paternity test. That's it. I'm not trying to get out of any – I just want a paternity test so you guys can see if I'm actually the father.
[MR. DAVIS]: She could have deceived me when we were together. I'm not – I wasn't with her 24/7. The only thing I'm asking for once again, I reiterate is – is a paternity test.
[MR DAVIS]: I just want a paternity test to prove in front of the Judge and the eyes of the law to make it legal that I am the father – if you prove to me legally that I'm the father, you can bring me back in here and I will pay all the child support you want. . . . That's – I just want a paternity test. I'm not asking to get out of something. I want – can you just prove to me that they're my children?
[MR. DAVIS]: 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.

Judge Mitchell specifically responded to Mr. Davis's repeated requests for a paternity test when he denied the existence of fraud at the time Mr. Davis executed the affidavit:

Thank you. . . . The statute authorizing the creation of these affidavits is found in Family Law Article Section 5-1028. In essence, for a period of 60 days after you sign the affidavit, you have the right to rescind it. You can rescind it in writing, or you can rescind it in a judicial proceeding provided that proceeding occurs within 60 days of the birth of the child or the execution of the affidavit. Beyond that 60-day period of time, the statute provides that you may rescind the Affidavit of Paternity and its contents only upon a showing of fraud, duress, or a material mistake of fact.
The issue in this case is not the fatherhood of the child. The issue in this case is whether there is the presence of fraud, mistake, or duress that would justify the rescission of an Affidavit signed by you and acknowledged to be signed by the defendant wherein he confesses to the paternity of these two children.
There is no dispute that the mother and the defendant executed these documents. There is no suggestion of the presence of any fraud or any duress at the time they executed the document.
There is testimony from the mother before the Court that she advised the defendant prior, seven months actually, prior to the birth of the children that he was not the biological father. That's interesting but irrelevant. It's irrelevant because the defendant armed with whatever knowledge he had chose to voluntarily execute an affidavit establishing him as the father of these children. We have heard nothing in this record and before this Court today that would even broach the subject of fraud, duress or material mistake of fact. . . .
We don't slip in and slip out. 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 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.

Although the dissent argues that res judicata would not apply because genetic testing was not a specific claim in issue, Mr. Davis's suit in 2013 for paternity testing to challenge the finding of paternity was barred, either under claim preclusion[3] or issue preclusion, [4]because the issue was litigated in 2011.

In a case analogous to the instant case, Hardy v. Hardy, 380 S.W.3d 354 (Ark. 2011), Mr. Hardy sought to set aside a divorce decree, which included provisions addressing child custody and his support of the children, on a theory of fraud. In the divorce proceedings, his wife's complaint alleged that two children had been born of the marriage. Id. at 355. Mr. Hardy denied paternity of one of the children who had been conceived prior to, but born during, the marriage, and asked for a paternity test. Id. The trial court denied Mr. Hardy's request for a paternity test, awarded him visitation, and ordered him to pay child support. Id. at 358. Mr. Hardy did not appeal from "the denial of his motion for paternity testing or from the divorce decree that required him to make child-support payments for [the child]." Id.

Mr. Hardy, however, years later, moved to set aside the divorce decree, arguing that he was not the father of the child based on a paternity test he had commissioned. Id. The trial court denied Mr. Hardy's motion for declaratory judgment, and Mr. Hardy appealed, arguing that res judicata did not bar the second proceeding because the divorce proceeding did not involve "an express finding that he was the father of [the child]." Id. The Arkansas Supreme Court determined, as we do here with respect to Mr. Davis, that Mr. Hardy's relitigation of the issue of paternity was barred by the claim preclusion aspect of res judicata because the "case is based on the same events as the subject matter of the previous lawsuit." Id. 358. The court reasoned that, "the issue of paternity was clearly litigated in the divorce proceeding", there was a final judgment and Mr. Hardy's failure to appeal the rulings in the divorce proceeding "foreclose[d] his present collateral attack upon the finding of paternity." Id. at 358-60.

We, however, did not take this case to address res judicata, but, rather, to determine whether a paternity test is mandated when "demanded" four years after the birth of twins by a father who had executed an affidavit of parentage when the children were born.

When Mr. Davis executed the Affidavit of Parentage, Section 5-1028 of the Family Law Article of the Maryland Code (1984, 2006 Repl. Vol.)[5] governed and provided then, as it does now, that:

(a) An unmarried father and mother shall be provided an opportunity to execute an affidavit of parentage in the manner provided under § 4-208 of the Health - General Article.
(b) The affidavit shall be completed on a standardized form developed by the Department.
(c) (1) The completed affidavit of parentage form shall contain:
(i) in ten point boldface type a statement that the affidavit is a legal document and constitutes a legal finding of paternity;
(ii) the full name and the place and date of birth of the child;
(iii) the full name of the attesting father of the child;
(iv) the full name of the attesting mother of the child;
(v) the signatures of the father and the mother of the child attesting, under penalty of perjury, that the information provided on the affidavit is true and correct;
(vi) a statement by the mother consenting to the assertion of paternity and acknowledging that her cosignatory is the only possible father;
(vii) the Social Security numbers provided by each of the parents.
(2) Before completing an affidavit of parentage form, the unmarried mother and the father shall be advised orally and in writing of the legal consequences of executing the affidavit and of the benefit of seeking legal counsel.
(d) (1) An executed affidavit of parentage constitutes a legal finding of paternity, subject to the right of any signatory to rescind the affidavit:
(i) in writing within 60 days after execution of the affidavit; or
(ii) in a judicial proceeding relating to the child: which the signatory is a party; and
2.that occurs before the expiration of the 60-day period. (2)(i) After the expiration of the 60-day period, an executed affidavit of parentage may be challenged in court only on the basis of fraud, duress, or material mistake of fact.
(ii) The burden of proof shall be on the challenger to show fraud, duress, or material mistake of fact.
(iii) The legal responsibilities of any signatory arising from the affidavit, including child support obligations, may not be suspended during the challenge, except for good cause shown.
(e)The Administration shall prepare written information to be furnished to unmarried mothers under § 4-208 of the Health – General Article concerning the benefits of having the paternity of their children established, including the availability of child support enforcement services.
(f)The Department shall make the standardized affidavit forms available to all hospitals in the State.
(g) The Secretary, in consultation with the Department of Health and Mental Hygiene and the Maryland Hospital Association, shall adopt regulations governing the provisions of this section and § 4-208 of the Health – General Article.

The Affidavit of Parentage executed by Mr. Davis and the mother of the twin boys in the hospital two days after the twins were born[6] was on a form developed by the Department of Health and Mental Hygiene; its front, in full, recited the following:

Rights and Responsibilities

1.You have a right to obtain genetic testing. If you have any doubts as to the paternity of this child, you should request genetic testing before signing the Affidavit. If you would like more information about genetic testing, please call the Maryland Child Support Enforcement Administration at (410) 767-7034.
2.A complete and signed Affidavit of Parentage creates a legal finding of paternity. No further legal action is required to establish paternity. The father's name will be placed on the child's birth certificates.
3. The legal parents of the minor child are the joint natural guardians of their minor child. This means that both parents are jointly responsible for the support of their child. It also means that the child will be able to benefit from the parents' health care coverage, receive inheritance, or receive Social Security or Veterans' dependent or survivor benefits, if eligible.
4.Once this Affidavit is signed by both parties, the father will have equal rights to custody of the child. If a dispute arises concerning issues of custody, visitation and child support, a court may use this Affidavit as evidence to resolve the dispute.
5. The personal information requested is required to establish paternity and/or to enable the Division of Vital Records to contact a parent in the event that the information provided on the Affidavit is insufficient.
6.The Affidavit will be filed with the Division of Vital Records, and will be available upon request to the parents, the legal guardian, and the Child Support Enforcement Administration. The information provided in the Affidavit may be used by the Child Support Enforcement Administration to assist in providing child support services to either parent.
7.The legal finding of paternity, established by completion of the Affidavit, can be reversed only if:
a. Within 60 days of signing, either party named in the Affidavit signs a written rescission. (You may obtain a rescission form by calling the Maryland Department of Health and Mental Hygiene, Division of Vital Records at 410-764-3182);
b. Within 60 days of signing, either party named in the Affidavit appears in court in a proceeding related to the child and informs the court of his or her decision to rescind; or
c. After the expiration of the 60 day period, a court orders a rescission after the party challenging the Affidavit proves fraud, duress or material mistake of fact.
8. Rescission of the Affidavit will terminate the father/child relationship, but court action will be necessary to remove the man's name from the birth certificate.
9.If you challenge the Affidavit in court after the 60 day period, your legal responsibilities for the child, including child support obligations, will continue unless and until a court relieves you of those responsibilities.

The reverse side of the affidavit contained additional statements, which included:

2.Completion of the Affidavit is voluntary. Do not complete this Affidavit until you have read or have had read to you, the instructions for completion and the notice regarding your rights and responsibilities.
3. The Affidavit may not be signed by the biological mother if she was legally married at the time of conception or birth of the child. The Affidavit may be signed by the father regardless of his marital status.
4. If either of you is not sure that the man signing the Affidavit is the biological father of the child, you should not complete the Affidavit at this time. You should first have a genetic test. Genetic testing can provide certainty if you have any doubts regarding the parentage of the child.
5.If you are under the age of eighteen (18), you may complete the Affidavit without the permission of an adult or legal guardian. You may want to seek the advice of a parent or legal guardian before signing this form.
6.This Affidavit creates legal rights and obligations relating to your child, and may impact custody, child support and visitation. Therefore, it may be beneficial to talk to a lawyer before signing the Affidavit.

(Emphasis in original). The form, thereafter, contained Mr. Davis's name, address, date of birth, social security number, phone number, and his signature; printed above ...

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