January 8, 2016.
Certiorari to the Court of Special Appeals (Circuit Court for
Wicomico County) Donald C. Davis JUDGE.
BY Michael A. Davis (of Havertown, PA) on brief FOR
BY Joseph B. Spillman, Assistant Attorney General (Brian E.
Frosh, Attorney General of Maryland of Baltimore, MD) on
brief FOR RESPONDENT
C.J., Battaglia[*], Greene, Adkins, McDonald, Watts and
Rodowsky, Lawrence F., (Retired, Specially Assigned), JJ.
Opinion by Battaglia, J. Adkins, J., concurs. Barbera, C.J.,
McDonald and Watts, JJ. dissent. Chief Judge Barbera and
Judge Watts advise that they join this opinion.
Md. 304] Battaglia, J.
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
[447 Md. 305] 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
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."
Davis then appealed to the Court of Special Appeals, which,
in a reported opinion, affirmed. 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 [447 Md. 306] 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.
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
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?
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.
[447 Md. 307] 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).
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.
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).
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])) [447 Md. 308] .
. . ." 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.
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 [447 Md. 309] 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
* * *
[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
* * *
[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.
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
[447 Md. 310] 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
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.
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 or issue preclusion, because the
issue was litigated in 2011.
Md. 311] In a case analogous to the instant case, Hardy
v. Hardy, 2011 Ark. 82, 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.
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.
Md. 312] 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.
Mr. Davis executed the Affidavit of Parentage, Section 5-1028
of the Family Law Article of the Maryland Code (1984, 2006
Repl. Vol.) governed and provided then, as it does
(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
(b) The affidavit shall be completed on a standardized form
developed by the Department.
(c)(1) The completed affidavit of parentage form shall
(i) in ten point boldface type a statement that the affidavit
is a legal document and constitutes a legal finding of
(ii) the full name and the place and date of birth of the
(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
(vii) the Social Security numbers provided by each of the
[447 Md. 313] (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
(i) in writing within 60 days after execution of the
(ii) in a judicial proceeding relating to the child:
1. in 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
(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
Affidavit of Parentage executed by Mr. Davis and the mother
of the twin boys in the hospital two days after the [447 Md.
314] twins were born 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
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
4. Once this Affidavit is signed by both parties, the father
will have equal rights to custody of the child. If a dispute
[447 Md. 315] 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
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
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.
reverse side of the affidavit contained additional
statements, which included:
[447 Md. 316] 1. A complete Affidavit of Parentage is a legal
document and constitutes a legal finding of paternity.
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 his
signature were the following statements:
I acknowledge that I am the natural father of the child
named above. I solemnly affirm under penalties of perjury
that the contents of this affidavit are true and correct to
the best of my knowledge, information and belief. I
understand that this affidavit will establish paternity of
the child and will authorize the entry of my name on the
child's birth certificate. I have read or had read to me
the notice regarding the legal rights and obligations
resulting from acknowledging paternity. I understand
that I am free to refuse to sign this admission of
Md. 317] The mother's signature appears on the form under
a similar advisement.
Davis's Affidavit of Parentage, thus, notified him of the
creation of legal rights and obligations. Pursuant to Section
5-1028 of the Family Law Article, Mr. Davis did not, however,
rescind the affidavit within 60 days of its execution, nor
did he appeal the 2011 judgment that determined that the
affidavit of parentage was not procured through fraud, duress
or material mistake of fact.
Davis, nevertheless, argues that he is entitled to a blood or
genetic test as a result of his attempt to modify his
paternity attestation, pursuant to our holding in
Langston v. Riffe, 359 Md. 396, 754 A.2d 389 (2000),
which involved declarations of paternity entered by the
circuit court and the effect of Section 5-1038 of the Family
Law Article when a putative father requests modification or
abdication of the order. Section 5-1038 states:
(a)(1) Except as provided in paragraph (2) of this
subsection, a declaration of paternity in an order is final.
(2)(i) A declaration of paternity may be modified or set
1. in the manner and to the extent that any order or decree
of an equity court is subject to the revisory power of the
court under any law, rule, or established principle of
practice and procedure in equity; or
2. if a blood or genetic test done in accordance with §
5-1029 of this subtitle establishes the
exclusion of the individual named as the father in the order.
[447 Md. 318] (ii) Notwithstanding subparagraph (i) of this
paragraph, a declaration of paternity may not be modified or
set aside if the individual named in the order acknowledged
paternity knowing he was not the father.
(b) Except for a declaration of paternity, the court may
modify or set aside any order or part of an order under this
subtitle as the court considers just and proper in light of