*1 396
PER CURIAM ORDER. having granted petition
The Court considered and case, day 27th above is this of certiorari entitled writ June, 2000, of
ORDERED,
of
that the
Appeals Maryland,
the Court of
be,
hereby,
it is
judgment
Special Appeals
the Court
vacated,
Special
case is
to the Court of
and the
remanded
appeal.
with
to dismiss the
Shoemaker
Appeals
directions
See
(1999).
143,
v.
See
Dennis
v. Smith Md.
A.2d 549
also
412,
(1999);
v.
Folkenberg, 354 Md.
Judge HARRELL did this matter.
Alice L. RIFFE. Langston William Carl v.
Sharon Locklear. R. Danielle v.
Tyrone W. Term, 136, Sept.
Nos. 1999. Appeals Maryland. Court June *3 (Resnick L.L.C., brief), Abraham, Dawn Marie Nee & on Term, Baltimore, in 137 Sept. for Case Nos. 117 & appellant 1999. Levin, Ades, Wyron Murphy,
Jane C. Cheri Renee Bronfein Law, Clinic, Family University Law Baltimore School of Baltimore, Curiae, in in appellant Amicus Case Term, Nos. 136 Sept. 117 & 1999. (J. Messerschmidt, Curran, Joseph Asst. Atty.
C.J. General Jr., Maryland Asst. Atty. Mary Murphy, General of and C. General, brief), Baltimore, Atty. on for Nos. appellee, Case & Term, Sept. 1999. (J. Messerschmidt, Curran, Joseph Asst. Atty. C.J. General Jr., Maryland Asst. Atty. Mary Murphy, General of C. brief), General, Baltimore, Atty. petitioner, on for Case No. Term, 1999. Sept. (Suzanne Denton, Ogletree, Anne C. Suzanne L. Hood L. Hood, P.A., brief), Easton, on respondent, Case No. 136 Term, Sept. BELL, C.J., ELDRIDGE,
Argued before RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.
CATHELL, Judge. separate Three paternity disputes are In before Court. case, each previously the man adjudged be the father of a child in a prior paternity proceeding seeks to set aside that prior judgment alleged not, based on new evidence that he is be, not case, the actual father. In the first number 136, petitioner Danielle R. from appeals a decision of the Court of Special Appeals, R., which Tyrone held that respon- dent, is entitled to a and, court-ordered or blood test if proves the test he is not the father of in question, the child on hearing whether to set original aside the paternity declara- tion against entered him. In the cases numbered 117 and appellant William Carl Langston appeals from two consolidat- rulings ed of the Circuit Court for Baltimore City he is hearing entitled to a to set aside two prior paternity adjudicating declarations him to be father of two different In cases, children. one of those he a post-declara- has taken test, tion blood which him excluded from being biological of the child question.
I. Background Facts and Procedural
A. Case No. 136 Danielle R. Tyrone W. were involved a dating *4 relationship from October 1987 June during which time in they engaged sexual intercourse. At some point relationship, Danielle Tyrone informed she pregnant was 8, 1989, he was the father. On January gave Danielle birth to son, T.R. on Based his belief that he was the natural T.R., Tyrone entered into a paternity agreement April on 27, 1989, Tyrone which acknowledged that he was T.R.’s
father, requesting paternity. without blood test determine County subsequently The Circuit Court for Talbot entered a 9, 1989, on included May which an paternity declaration pay support. order to child prior aware to and
Tyrone during paternity was not involved in a relationship that Danielle had been proceedings P., man, she met Tyrone. with another James before Danielle relationship that her with below proceedings testified began dating had in 1986. Danielle and James James ended when T.R. was three old. Sometime after the again years entered, Dan- Tyrone declaration was learned about that Tyrone relations with James. testified below he ielle’s telephone relationship her about the confronted on that, him alleged Danielle threatened because his accusation, an in the support she would seek increase child he Tyrone’s “if’ T.R. was son. paying was 7, 1998, County Support April On Talbot Bureau of petition Enforcement and Danielle filed a the Circuit Court County Tyrone for Talbot to increase the child was respond- under paying Tyrone declaration. petition filed a “Complaint ed Set Aside Declara- Maryland The Paternity.” complaint tion of was based on 5-1038(a)(2)(i)2 (1984, 1999 section of the Repl.VoL), Code Article,1 Family Law which allows a circuit to set court aside modify declaration “if a blood or test with done accordance 5-1029 of subtitle establishes the exclusion of the individual named the father Tyrone’s blood complaint requested genetic testing order.” he to determine whether could be excluded as the natural T.R. father of circuit to a court referred the matter domestic relations evidentiary hearing,
master. After an the master recom- that genetic testing mended be conducted. The Talbot Coun- ty Bureau of Enforcement filed with Support exceptions 5-1038(a)(2)(i)2 1. Future to section references are an abbreviation of (1984, 5-1038(a)(2)(i)2 Maryland Repl.VoL), Code section Article, Family Law unless noted. otherwise *5 hearing, rejected circuit court. Without a the circuit court 18, 1998, master’s recommendations on and dismissed August Tyrone’s complaint original paternity to set aside the declara- authority tion. The circuit court that was no ruled there fraud, Maryland set aside the declaration absent mistake, circuit court also irregularity, clerical error. The Tyrone ordinary diligence” ruled had “failed to act with declaration, by waiting years challenge nine and that Tyrone judgment.” was “bound the 1989
Tyrone appealed to the of Special Appeals. Court That court vacated the order of the Circuit Court for Talbot Coun ty, holding that Tyrone was entitled to a blood or test biological determine whether he is T.R.’s father. The court that, also if held the tests excluded him as biological father, he was to a hearing entitled on whether to set aside the original paternity R., declaration. Tyrone v. Danielle W. 260, 300-01, 553, (1999). Md.App. Danielle Court, appealed granted and we aher writ of certiorari.
B. Case No. 117 Appellant William Carl Langston entered into a consent decree before the Circuit Court for Baltimore City on decree, October 1987. In the he acknowledged that he Angela, was the father of who was born to appellee Riffe, agreed Alice to pay support. child Angela subsequently moved to County Harford live with her natural grandfather, Carl Riffe. grandfather When her requested that the Harford County Department of Social (HCDSS) provide benefits, Services Angela with the HCDSS sought a paternity declaration from the Circuit Court for County against Harford appellant July Apparent- of 1997. ly, the HCDSS was unaware the 1987 declaration issued City. A conducted, Baltimore blood test was which excluded appellant as the natural Angela. father of The Circuit Court for Harford County subsequently pa- dismissed the HCDSS ternity on complaint December Balti- Court for before the Circuit brought was
Appellant cause order for on a show on City more October contempt At Angela. child pay failure to 16, 1998, appellant on December before a master hearing the Har- test results from into the blood introduced evidence The master recommended litigation. County paternity ford *6 provide appel- postponed be contempt proceedings that the declara- challenge opportunity an lant tion. 1987 paternity to set aside the complaint filed a
Appellant 7, 1999, 5- based on section January on declaration 1038(a)(2)(i)2. the complaint, a dismissal of Appellee sought 5-1038(a)(2)(i)2, adopted which was arguing that section applied retroac- Assembly in could the General City ultimately ruled for Baltimore The Circuit Court tively. complaint to set appellant’s appellee in favor of denied A rec- subsequently master declaration. aside child contempt for the be held appellant ommended that issuing an order agreed, the circuit court arrears and to the Court timely appeal made a May Appellant on of certiorari on granted This a writ Appeals. Court Special before the intermedi- any proceedings motion prior its own court. appellate ate
C. Case No. con- entered into a Langston also had Appellant 22, 1985, Court for before Circuit sent decree on March was decree, acknowledged he that he City. In that Baltimore L., appellee the son born to Sharon of Jason the father pay he child agreed December Locklear on support. appellant issued to subsequently
A order was show cause support. beginning, child From the pay for failure to appellee consolidated with in this case were proceedings Court). (number Thus, the proce- this case before Riffe’s they on which and the dates steps appeal, dural described occurred, background identical to the virtually were case, difference between supra. Riffe’s The appellee cases to be that at the time he filed his appears appellant, reconsideration, for petition any previous did not have blood excluding biological test him the father of genetic Jason Rather, L. he that he alleged original learned after paternity declaration was entered that Locklear had appellee in sexual time engaged relations with other men around the probably that Jason was conceived. The master recom- that his request genetic granted mended for a test be biological determine whether he is the father of L. Jason The circuit court appellant’s complaint request denied and his genetic testing, appellant appealed, granted and we writ of on our certiorari own motion.
II. Discussion parties, appeals, present their two issues to this Court, paraphrase which we as follows: section 5- whether 1038(a)(2)(i)2 Article, Family Law which allows trial modify courts to set aside or a paternity declaration when testing putative blood establishes that the father is *7 father, not the actual applies paternity declarations issued prior 1995; to the law’s if effective date on October and so, whether the trial court must of consider “best interests prior ruling child” on whether to allow post- or genetic testing declaration blood and the of reconsideration paternity. The Court of Special Appeals respondent held 5-1038(a)(2)(i)2 Tyrone’s case that section applied prior to the paternity declaration. It also held that a putative father who seeks to set a paternity aside declaration automatically is entitled to a blood or genetic test. After an examination of legislative history the adoption behind of section 5- 1038(a)(2)(i)2,we agree. 5-1038(a)(2)(i)2 Application
A. Retroactive of Section 1,1995, Prior to October section 5-1038 read: Finality; § 5-1038. modification.
(a) Declaration
paternity final.—Except
the man-
ner and to the extent that any
equity
order or decree of an
is subject
revisory power
court
of the court
any
under
rule,
law,
principle
practice
procedure
or established
in an order is final.
equity,
paternity
declaration
(b)
subject modification.—Except
for a
Other orders
paternity,
modify
the court
or set aside
declaration
part
order or
of an order under this subtitle
just
in light
considers
of the circumstances
proper
court
in the best
of the child.
interests
§
(1984,
Repl.Vol.),
of the Family
See Md.Code
5-1038
W.,
303, 315,
In
v. Tyrone
Law Article.
Tandra S.
336 Md.
(1994),
§§
“[rjeading
this Court
that
5-
648 A.2d
held
(b)
1038(a) and
it is clear that
the more liberal
together,
rule,
5-1038(b),
relating
paterni-
§
revisory
governs orders
does not
the declaration of
itself.
ty,
paternity
but
control
Rather,
entirety
plain
§ 5-1038
in its
read
makes
that
judgments
governed
revisory
are
the strict
rules
[Maryland]
revisory power
forth in
Rule 2-535.”
set
2-535,
Maryland
judges
Rule
which authorizes trial
to alter or
only applies
thirty days
a final judgment,
amend
within
judgment
entry
and thereafter
the rare instanc-
“fraud, mistake,
irregularity.”
Maryland
es of
Rule 2-
See
535;
(1974,
also
6-408 of
Repl.Vol.),
see
Md.Code
Article;
S.,
Proceedings
Courts & Judicial
Tandra
Tandra like multiple appeals by involved putative seeking previous fathers to overturn decla- against rations entered them. One of putative fathers test, case had taken a post-declaration blood which ex- him from child being biological cluded father of the case, In the issue.2 second mother confessed father, after a putative paternity declaration had been entered him, that against perjury she had committed at the fact, hearing by naming him as the father. In she had already changed last his legally the child’s name “to reflect true *8 441. lineage parentage.” Id. 648 A.2d at Both in parties sought the second case to end the subsequently W., putative Tyrone 2. That father was man before us in same case appeal. number 136 in this
405 obligation, but the Baltimore father’s child putative that Support challenged attempt. Bureau of Enforcement City evidence, if that neither Despite strong, not conclusive case, in in biological holding man father his was the vacating Tandra both men from the earlier precluded S. against they declarations them because had not paternity “fraud, mistake, irregularity” evidence of or under produced narrow, common-law to those terms. See given definitions id. at at 448. A.2d Session, Assembly, in Regular
The General its next enacted (hereinafter Laws, 248), Maryland Chapter Chapter Chapter to overturn effect of Tandra specifically S. adjudicated section 5-1038 to allow fathers to reopen altered against declaration them when challenge they being biological are from father a post- excluded declaration blood or of genetic test. Section 5-1038 Law Family Article now states: Finality;
§ 5-1038. modification. (a) paternity final; modifications.—(1) Declaration of subsection, Except provided paragraph of this declaration of in an order is final.
(2) (i) A declaration or set modified aside:
1. any the manner and to the extent order or equity subject decree of an court is revisory power law, rule, the court any under or principle established practice procedure equity; or blood or test done accordance with if § 5-1029 this subtitle establishes the exclusion individual named as the in the order.
(ii) (i) Notwithstanding subparagraph of this paragraph, declaration paternity may not be if modified set aside individual named the order acknowledged paternity knowing he was not the father.
(b) subject Other orders for a modification.—Except paternity, declaration of the court may modify set aside part order or of an order under subtitle as the *9 406 of the circumstances just light proper
court considers and [Emphasis added.] of the child. best interests remedy the’ effect designed 248 was Clearly, Chapter appeal, In this declarations. Tandra S. had on implemented by changes whether the for this Court to decide prior entered declarations 248 extend Chapter effective, changes that the of the statute. We hold date en- 248 declarations by Chapter apply rendered 1, 1995. tered before October legisla- of a application “retrospective”
The “retroactive” or Singer, in 2 Norman J. been defined tive enactment has (5th Construction, 41.01, at 337 ed. Statutory Sutherland’s 1993): synony- are ‘retrospective’ ‘retroactive’ and “The terms interchangeably. judicial usage may employed be mous on transactions which have operate acts which They describe obligations pas- which existed before rights or occurred omitted.) (Footnote Concerning the retro- sage of the act.” State, statute, v. Spielman of a we noted application active (1984): 730, 602, 607, 471 A.2d 733 298 Md. ap- retroactive prohibition against is “no absolute
There Human Rela- Comm’n on plication [State of a statute.” 1, 4 Div., 120, 123, 360 A.2d 278 Md. tions v. Amecom (1976).] operates retrospec- a statute question whether only, ordinarily legislative is one tively, prospectively repeated- determining In such intent this Court has intent. stated, in the law that general presumption is a ly “[t]here effect. purely prospective to have an enactment is intended contrary, to the legislative In of clear intent the absence State, v. retrospective effect.” Traore given statute is not (1981). 593, 96, 585, 100 290 Md. 431 A.2d 72, Candy Maide 171 Md. Shops, also Dashiell v. Holland See (1936) (“It is, course, general principle 30 188 A. unless given retrospective not to effect that statutes are be it....”). require their words presumption legis- exceptions general
There are retroactively. One such applied lative enactments be legislative concerns enactments that category exceptions
407 Roth v. Health See Dimensions apply procedural changes. (1993) (“Notwith 627, 636, 632 A.2d 332 Md. Corp., if the statute [against retroactivity], standing presumption retrospec that it expression operate of intent ‘contains a clear remedies, it only procedures or the statute affects tively, ” Div., Amecom application.’ (quoting will given retroactive (citations omitted))); Mason v. 124, 360 A.2d at Md. (“De State, 215, 219-20, 309 Md. *10 effecting a a spite presumption prospectivity, statute rights, not substantive procedure only, change accrued, or applies pending to all actions whether ordinarily ”); Janda future, expressed.... a contrary unless intention 228, 161, 168, 232 Corp., v. Motors 237 Md. General (1964) not only, a (“Ordinarily change affecting procedure (and of the rights, by statute an amendment substantive made effect) to all has the same Maryland essentially applies Rules accrued, future, whether pending matters] actions [and ) (alteration in origi contrary expressed.” unless a intention is nal) Richardson, 316, 320, 142 (quoting Richardson v. 217 Md. (1958)), 550, by part grounds A.2d 553 on other disapproved Comm'n v. Riverdale Washington Sanitary Suburban Co., 556, (1987); Fire 520 1319 Heights 308 Md. A.2d Vol. Keehn, 144, 544, 183 36 545 Kelch v. Md. A.2d (“Where existing the effect of the statute is not to obliterate rights procedure but and remedies substantial affects for it all actions rights, applies the enforcement of those accrued, future, contrary inten pending whether a unless expressed.”). tion is Special Chapter reasoned that Appeals
The Court below 248 out procedural pointed was not a enactment. That court father to to set aside procedure putative attempt that the a adjudication prior prior is the same as it was court being appellate 248 enacted. The intermediate Chapter Chapter merely provided believed that an additional ground challenge prior paternity on which declaration. W., See at 564. Tyrone Md.App. A.2d however, note, caption Chapter that We Paternity enacted, concerning that is “AN ACT states it Proceedings—Procedure.”3 addition, In the title clause states the enactment is of ... purpose general- “[for] ly relating paternity proceedings.” caption title clause indicate that Legislature placing believed was 5-1038, into section not an ground, additional but an additional procedure or type by of proceeding putative which a could seek a revision of a prior paternity declaration. This intention is further by evidenced the Legislature’s placement “equitable” (a)(2)(i)l, relief subparagraph while the “blood or genetic procedure test” placed was in subparagraph (a)(2)(i)2. Although original procedure for revisiting pa- ternity remains the Chapter enactment, same after 248’s methods by revisiting which the issue of may be done have been expanded by the procedure statute. The 5—1038(a)(2)(i)l contained section empowers trial court to re-examine a paternity declaration under its equitable revisory powers, in Maryland contained Rule 2-535. Subpara- graph however, empowers the court to set a paternity aside declaration solely based on test administered under section 5-1029 of the Family Law In Article. other words, the methods envisioned the different subparagraphs each involve a procedural step contained in the other.4
A second to exception general presumption against retroactive application of laws is when legislation is intended effect, to have a remedial and it impair does not rights. vested Generally, remedial statutes are those provide which remedy, improve or or facilitate already remedies existing for the rights enforcement of and the injuries. redress of They also include statutes intended for the correction of defects, mistakes and omissions in the civil institutions and the administration of the state. The definition of a remedial original caption 3. The concerning stated that it was "AN Family ACT Law—Paternity Proceedings—Modification of Court cap- Order.” The tion was modified in conference committee change after substantial to original the substance of the bill. See infra. Presumably, 4. challenged declaration could by utilizing be procedures both of these at the same time.
409 to as a that relates has also stated statute statute been sub- and does not affect procedure, or remedies practice, or vested rights. stantive change existing body makes
Every statute that merely re- law, excluding those enactments which law, some flaw “remedy” can said codify prior or be state [Footnotes omitted.] or evil. law some social prior Construction, Statutory Singer, 3 J. Sutherland’s Norman (“The 41.09, § 2 at 399 60.02, 152; at also id. see supra, statutes] into category [of fall remedial statutes which are enforcing, processing, adminis- that describe methods for ones status.”). determining tering, rights, liabilities defined of this state have also appellate courts instance, Div., 278 Md. legislation. For Amecom remedial 125, 5, A.2d at act is remedial “[a]n at 360 we said for a new of enforcement provides only when it method nature Kelch, 145, 183 at 36 A.2d right.” (Citing Md. preexisting (1933)). 98, 90, 544; Md. A. 593 Ireland v. 165 166 Shipley, law, if they in nature Maryland statutes are remedial “Under law, existing griev designed existing are correct redress public regulations ances and to introduce conducive Weathersby Fried Nat’l Man good.” Kentucky v. Chicken Co., 550, 569, 533, 587 A.2d agement Md.App. 737, Barnes, v.
(citing State
Md.
(1992).
(1974)),
rev’d on other
326 Md.
been all fifty is to provide enforcement of the claims of nonresidential parents and children entitled to support.” Singer also notes that “[t]he Uniform Parentage Act has been held to be remedial” and that social “[m]odern legislation is generally regarded as being remedial in nature.” 60.02, 3 id. at 154.
In determining nature, whether Chapter 248 is remedial in we look general statutory tenets of construction. As this Court has said time again, and time “[t]he cardinal rule statutory interpretation is to ascertain and effectuate the See, intention legislature.” e.g., Connors, Oaks v. 339 24, 35, 423, (1995). Md. 660 A.2d 429 Although the interpreta- tion of begins statutes with plain language of the statute see, question, State, e.g., 141, Jones v. 159, 357 Md. 742 A.2d 493, (1999), 502 we in Tracey 380, noted v. Tracey, 328 Md. (1992), 614 A.2d 594 plain “the meaning rule of absolute; rather, construction is not the statute must be construed reasonably with aim, reference to the purpose, policy of the enacting body. The Court will look larger at the context, including legislative purpose, within which statu- (Citations tory omitted.) language appears.” Review the type mentioned Tracey often consists of reviewing the materials saved in the bill files of the legislative bill ultimately adopted and enrolled as the Act question. Kaczorowski v. Baltimore, Mayor 505, 514-15, Md. 632- (1987). These statutory rules of construction presumably apply to legislative history surrounding the intent that an Act have retroactive effect. legislative history of Chapter 248 clearly shows that its
effects remedial, i.e., were meant to be it was intended to be applied to all paternity declarations, claims and whether prior, current, or prospective, that are rendered by present false future blood or genetic testing. Put more simply, Chapter was to remedy intended the effect of Tandra S. both prospec- tively retrospectively.
Chapter began Bill House which had a compan- bill, ion Senate Bill compiled Materials by the Depart- *13 for both indicate in the bill files Legislative of Reference ment instance, For nature of enactment. intended remedial Proceedings Com- Judicial testimony in her before the Senate 114, stated: sponsor a of S.B. mittee, Hollinger, Paula Senator dealing with today testify for a bill I am not here to rather, rights. take a stand for men’s but to rights women’s early part in the brought my attention A case was a 5-2 Appeals handed down 1994when Court October in highest Maryland court on case. The decision but later agreed pay man who child ruled that a paying continue biological he not the must found was according The reason for the decision support. child opinion was Murphy’s majority Robert C. Judge Chief left not final then children would be if cases were Certainly no one would without support”. “fatherless and however, I situation; believe there is advocate for that and, if 114 would at stake SB passed, fairness issue here authorizing with this issue fairly amend code deal of paternity court aside a declaration modify set under certain circumstances. In exhibited the recent light inequality
... accepted paternity of 2 and child cases men who publicized father, biological not the support only they to discover were urge I favorable support payments, had to continue yet on 114. report SB addition, of three articles copies
In
the bill files contain
Tandra S.
decision,
filing of
shortly after the
published
opinion
express
Maryland legal
criticize the
which
Ambrose,
with its result. See
Adam
community’s
distaste
Rec.,
12, 1994;
Paternity:
Opportunity, Daily
A Missed
Nov.
Forcing Paternity
Finality
in the Name
Bowling,
Jane
Rec.,
12, 1994;
Thompson,
Expediency,
Daily
Nov.
William
Justice,
Ruling
Bizarre
High
Paternity
Md.
Court’s
Fathers
Sun,
copy
bill files also contain a
Balt.
Oct.
Tandra
Judge
S.
following paragraph
decision. The
Judge
dissenting opinion appears
Eldridge’s Raker’s
file
as shown below:
bill
light of the basic differences between paternity judg-
{In
ments and the
judgments
lawsuits,
other types of
majority’s holding today, in the words of the Court of
Special Appeals, “defies common sense.” Undoubtedly soci-
ety
ahas
strong
ending
interest
disputes
point
at some
time,
normally
other interests must yield to the limita-
tions on a court’s revisory powers. Nevertheless, a com-
pletely rigid adherence to the shibboleth that “in today’s
highly litigious society, there must
point
be some
in time
when a judgment
final,”
becomes
in the face of irrefutable
*14
scientific evidence that a particular individual did not father
child,
a given
with all of the attendant ramifications of such
decree, is absurd.
view,
Under the majority’s
if
presumably
the Provincial Court Maryland
of
in the 1600’shad issued a
flat,
decree that
the earth was
“fraud,
the absence of
mistake or irregularity,”
narrowly
by
Court,
defined
would make that Provincial Court
Or,
decree sacrosanct.
if
2-535(b)
Rule
were to
given
effect,
extra-territorial
pre-
sumably
5, 1616,
the March
decree by
Rome,
a tribunal in
Galilei,
aimed at Galileo
declaring
and
that Copernicanism is
erroneous and that
planet
the
earth is the center of the
universe,
given
would be
conclusive effect. Like the courts
below, I do not believe that all common sense must be
abandoned in the name of Rule 2-535(b).}
S.,
Tandra
330-31,
Clearly, perceived the injustices to putative fathers situa- tions similar to putative fathers in the Tandra S. case could not be by legislation remedied strictly with a prospective effect.6 Apparently, the Legislature agreed with the various criticisms of Tandra inS. the media and with Judge El- dridge’s Judge and Raker’s claim that the decision defied “common sense.” Turning case, to this it equally would Legislature 6. The generally may specifically statute overrule a resolved; finally case we although, have provided it enacts such statute appropriately, might it be able to legislation enact negates certain holding perceives it objectionable, to be as to other cases. deny, again, putative to once common sense abandon simply because declaration ability challenge to entered of the declaration having has misfortune he against prior him October evidence generic contain more files also bill retroactively. applied 248 be Chapter intent that
Legislature’s reading, H.B. 337 and S.B. their both Originally, at first paterni- to reopen any previous courts have allowed the would from declaration, corollary resulting such judgment and ty any in light and “just proper if litigation, the court considered child” do interests of the the best circumstances bill would have reading, As first either so. their proposed 5-1038(a), eliminating thus former section completely deleted of the trial court or the revisory power any reference original finality declaration. Under the S.B. (Jan. (b) 23, 1995), would have become subsection have amended entirety of section 5-1038 and would been rule, or the court “Notwithstanding any other law read: an under this modify aside order or order any part or set just proper light subtitle as the court considers child.” House the best interests circumstances (Feb. 1995) provision Bill would amended the have part aside may modify read: “The court set order *15 just court an under subtitle as the considers and order this in in of circumstances and the best interests proper light the form, Bill Thus, in its “House original of child.” modify any part a court to or set aside order authorizefd] an in a that the court considers paternity proceeding of order in in just proper light circumstances and best and Reference, Legislative Department interests of the child.” added). (1st ed.) (emphasis Bill Bill 337 Analysis, House however, did survive provision, “best interests the child” as to on declarations. decisions unchanged passage Bill 114 its remained after Senate its through Proceedings Committee and Senate Judicial Bill changed substantially 337 had reading. second House It have recodified section reading, its second however. would part: 5-1038 to read relevant
(2) A of paternity may declaration be modified or set aside:
(ii) If a test 1. blood or done in accordance with this 5-1029 of subtitle establishes the exclusion definite order; named as father in individual a of fraud. showing On (Mar. 1995). H.B. 337 Analysis As revised Bill pre- pared by Department Legislative pointed Reference out, narrowly of H.B. 337 version was “more drawn [than S.B. Bill 114 modify 114]. Senate would allow court to or set part aside in paternity order an order proceeding, including a of paternity, just declaration as the court considers light proper the circumstances and the best added.) interests of the child.” (Emphasis chambers, After passage respective their both bills were substantially again by joint altered conference committee into the form ultimately adopted Chapter as 248:
AN concerning ACT
Paternity Proceedings—Procedure FOR authorizing of ... purpose modify court to or set
aside a of paternity declaration under certain circum- stances; generally relating proceedings. 1. BE IT SECTION ENACTED BY THE GENERAL MARYLAND, ASSEMBLY OF That the Laws of Maryland read as follows:
Article—Family Law 5-1038.
(a) (1) Except provided paragraph of this subsec- tion, a declaration of in an order final.
(2) (i) A paternity may declaration of be modified or set *16 aside: or any order to the extent In manner and
A. revisory power subject to the court is equity of an decree law, rule, principle or established any under the court or equity; procedure and practice with test done accordance genetic B. If a blood of the the exclusion establishes of this subtitle 5-1029 order.[7] the father named as individual (i) this (ii) paragraph, Notwithstanding subparagraph if or set aside not be modified may of paternity declaration acknowledged paternity in the order named the individual not the father. knowing he was the court
(b) paternity, for a declaration Except of an order under any part order or modify or set aside light just proper as the court considers subtitle of the child. in the best interests circumstances and Thus, Chapter 248 had eliminated the final version any paternity allow that section 5-1038 proposition original court consid- aside when the to modified set declaration be “in the interests of “just proper” best ered be reexamined Instead, declarations would child.” in sec- revisory previously mentioned powers under the S., or when a subse- in Tandra 5-1038(a), tion and discussed father from the declared genetic blood or test excluded quent aban- Assembly had biological father. The General being apparently of the child” to “best interest doned reference reliance on a “best reject partial this Court’s as an effort to in Tandra S'.8 The General Assembly had analysis interest” in H.B. requirement, contained proof of fraud abandoned require- blood or test was attached which to that bill’s prior by Judiciary the House Committee ment "2” "B” renumbered "1” and Subparagraphs "A” and were 7. Laws, Maryland Chapter 14. ques- requires relitigation argue 8. "To that fairness tion____ occur to the that would It overlooks unfairness also relitigated, thereby were allowed to children if the issue support.” Tandra S. at leaving and without the children fatherless *17 reading. second See This indicates the supra. Legislature’s father, away further intent to move from a requiring putative results, who has taken a test from paternity negative with to than having prove anything other the results of that test. that, start, complex history This indicates from the Chapter to court modify was intended allow circuit to or set aside declaration, “any” paternity including those entered to prior words, Act. In Legislature the effective date other beginning believed from the that its enactment would apply declarations, all paternity regardless entry. of their date of think “any” We do not the removal of the word from the final intent; rather, version of the enactment lessened that “any” declaration of became “a” declaration of paternity, subject grounds which was to review on of a or genetic blood changes test. The made appear conference committee upon have redefined the new methods which a putative Moreover, challenge paternity could declaration. changes made did not bar the application provi- the bill’s to paternity prior sions declarations entered to the effective date of Act.
The final of Chapter rejected any version 248 also consider- ation of the “best interests of the child” in such proceedings. This is consistent with inapplicability of a “best interests of the child” in any pater- consideration initial stated, nity proceedings. Simply the fact of who the father of changed by child is cannot be what might be the best interests of the child.
Additionally, we note that other materials the bill file for H.B. indicate that opponents specifically bill were concerned about its application. retroactive In a March Committee, 1995 letter to the House Judiciary Patricia C. Jessamy, Attorney the State’s City, Baltimore at stated that applying H.B. 337 to both legitimate illegitimate considerably children “would impact broaden the of this sec- tion in that all determinations of parentage open would be added.) (Emphasis redetermination a later date.” of Human Department objected Resources also bill: the opportunity fathers disgruntled permit “This bill would Maryland child in thousands judgments challenge paternity Shea, Department of Brian Testimony support cases.”9 Judiciary House Com- 337 to the on H.B. Human Resources 1995). (Mar. of these statements mittee, neither at 2 While application retroactive potential about the directly complain in their statute, application do infer a retroactive they new legislation effect general concern over the expression of, “all,” and child on “thousands” would have rejected apparently concerns were cases. These final enactment. in this *18 history legislative hold that the extensive We General that, Chapter enacting case indicates in nature. As the to the Act be remedial Assembly intended below, 248 “is Chapter out Appeals pointed Special Court of on grounds equitable of the expansion in that it is an remedial of a from the effect may court relieve which a been determined father who later has adjudged an judgment in question.” of the child biological father not to be the at 566. More W., at 741 A.2d Md.App. Tyrone puta in that it relieves and remedial simply, procedural is opinion by Tandra S. fathers from the effects tive prob remedying perceived for procedure expanding 5-1038 section case, apply In it is appropriate lem. to restore clear intent Legislature’s due to the retrospectively, by providing purpose intended originally to its provision that most, instances, Depart- agencies, generally the state many, not In if Resources, driving force behind are the ment of Human seeking the relevant assistance for her child contacts actions. A mother She is informed that in agency public for the child. for assistance state assistance, she must name the father qualify public order is support If the mother agency seek child in her name. permit i.e., father, individu- only sexual intercourse with one had certain occurred, is conception might have he during period which al however, If, named, arrangements proven, made. fact father, case, she, not know the or is uncertain frequently the does as is more, father, man, she is under intense of two or is as to which out someone, may she If she does not name pressure to name someone. wrong names the the child. Sometimes she receive assistance for person. See footnote infra. an putative procedure remedy fathers with additional challenge prior paternity declarations. note, however, that this not completely
We
does
ad
may
applied retroactively.
dress whether this statute
Gen
erally, a
or procedural
applied
remedial
statute
not be
retroactively if it
with
will interfere
vested or substantive
Janda,
168-69,
As
at
rights.
we noted
237 Md.
Ordinarily affecting rights a statute matters or of substance given retrospective will not be to transac- operation as tions, matters not in litigation and events the time the statute takes effect: “ * * * clear, strong unless its words are so and impera
tive their retrospective expression no other mean them, ing can be attached to or unless the manifest Legislature intention of the could not grati otherwise be * * * cases). (citing amendatory fied. An Act takes effect, enactment, legislative like other from the passage, time of its and has no application prior transactions, an contrary expressed unless intent to the clearly the Act or from implied provisions.” its [State ] Tax Comm. v. Electric Company, [Potomac Power ] 111, 117[, Md. ]. statute, intended,
... A if Legislature even so will not *19 be applied retrospectively to divest or affect adversely rights.... vested Aside from the legisla- disinclination of tive bodies operate and courts make law on past events transactions, or the limitations on only retroactive laws are and, legislation those which affect all if Legislature affecting intends a law operate substantive matters to retro- spectively the law does not offend constitutional limita- restrictions, tions or given will be the effect intended. See also Landing Partnership Waters Ltd. v. Montgomery 29, (1994) (“In 712, County, 337 Md. 650 A.2d the final of a part retroactivity analysis, a court must determine wheth- er the retroactive application the statute or ordinance would Mason, rights.”); interfere with vested 309 Md. at (“A impairing substantive affecting at 1346 statute A.2d transactions, as to retrospectively not rights operate will the statute matters, litigation at the time and events not indicates.”); Beech- so language clearly its takes effect unless 253-54, Lucas, v. 215 Md. wood Coal Co. (1958) (“A is statutory construction general rule
682-83 contrary that, manifestation of a in the absence of a clear will intent, rights substantive adversely a statute which affects retrospec- than prospectively rather operate be assumed hand, of the new the other where the effect tively.”). On rights, but existing is not to substantive impair statute machinery involved the enforcement procedural alter the them, such remedies available enforce rights, those all proceedings as on legislation usually operating construed right occurred before passage, instituted after its whether or after that date. stage at this to define substantive and vested important
It is Statutory Construc- rights. Singer, Norman J. Sutherland’s (1999 tion, 41.09, Supp.), explains “[a] at 56 that law supra, rights, obligations, if it duties and while is substantive creates the methods of procedural simply prescribes a remedial or law of those The definition of “vested rights.” enforcement rights” tricky. is more is “accrued”
A most natural definition of the term ‘Vested” or, it, put “completed as dictionaries and consummated.” sense, But in claim or which has come into that interest “a would have to be said being perfected right” and been vested.... ... once remarked with reference to the Justice Holmes retroactivity reasoning that problem “perhaps as the instinct which always cases has been as sound decisions,” suggested the criteria directed prevailing are “the views of really governed which decisions justice.” problem comprehend is to what real consider- prevailing of “the judgment application ations influence injustice.” views
420 impossible precise meaning
... It is
to discover the
consistently
all of the decisions can be
through
term
which
attempts
Most of the numerous
at definition are
explained.
nature,
in the
essentially
pronouncement
circuitous
is
right,
that “a vested
as that
term used
relation
an
which it is
guarantees,
implies
constitutional
interest
recognize
protect,
for the state to
and of which
proper
deprived arbitrarily
injus-
the individual
not be
without
right”
simply
right
tice.” Thus “vested
means
which
legis-
circumstances will be
from
particular
protected
under
lative interference. Another definition notes that a vested
right
enjoyment
is an immediate
or a
right
present
present
right
enjoyment.
fixed
of future
(footnotes omitted).
41.05, 41.06,
369-70,
§§
2
id.
379
See
Treasurer,
Nat’l Arena Ltd.
v.
287
Washington
Partnership
(“[I]t
4,
1060,
Md.
46 n.
1065 n. 4
has
been
long
recognized
right’
conclusory—a right
that the term ‘vested
perfected
is vested when it has been so far
that it cannot be
statute.”)
Hochman,
taken
away by
(quoting
Supreme
Constitutionality
Court and the
Retroactive
73
Legislation,
denied,
(1960)),
cert.
Harv. L.Rev.
U.S.
(1980).
S.Ct.
[t]he
facts,
case,
any
creates
relates to antecedent
but
neither
any
nor
new
The defen-
obligations
new
establishes
duties.
of his three
obligation
provide
support
dant’s
to
the
children,
essence,
changed.
in its
has not
although fluid
Rather,
procedure whereby
establishes a new
statute
existing
seek modifications of
child
parties
inquiry
a new channel of
simply opens up
orders....
[I]t
appropriate.
into whether a modification is
case,
In
application
Id. at
Regarding
rights,
appear
“vested”
the Act does not
to
destroy modify any
right belonging
to the children
vested
State,
petitioner
on behalf of
these
cases.
Locklear,
that
appellees
suggests
Danielle and
Riffe and
cer-
rights
upon
entry
original
tain
of the children vested
specify
declarations. The State does
what “vest-
be,
rights
rights
ed”
those would
but does insinuate that three
(2)
(1)
might
analysis:
rights;
to this
inheritance
Social
apply
benefits;
Security
support.
child
rights,
Security dependent
As to inheritance
and Social
benefits,
by paternity
are not
rights
survivor’s
these
vested
Rather,
rights of a
against putative
declaration
father’s.
estate, or from the
putative’s
child to inheritance of a
Security
putative
earning wages
father’s
under the Social
word,
Act, vest,
the traditional sense of the
when
inheritance,
In
respect
rights
father dies.
putative
proceedings
paternity proceedings, particularly
purpose
(1974,
Maryland
RepLVol.,
Code
conducted under
of the Estates & Trusts Article is
section 1-208
Cum.Supp.),
establish,
through
when and
whom such
partially,
least
bluntly,
To
it more
these
eventually
put
will
vest.
rights
entitled
who must die for the child
proceedings establish
or survivor’s benefits.11
inheritance
vesting monetary sup-
Regarding
support,
child
support already paid by
to occur is in
port
appears
recognize
usually
we
that it is
putative
Although
father.
adjudicated
that a man
to be the father of
child will be
case
support,
right, particularly
child
there is no
pay
ordered
from a father. A child
*22
any
right,
support solely
vested
to seek
a
paternity
against
a
declaration
support
accompanying
order
instance,
father,
the mother to
may require
pay
putative
5-1033(a)
(“In
§
Article
a
Family
Law
support. See
may
the court
order the father or the
paternity proceeding,
”
of ...
of the child ....
pay
part
support
mother to
all or
added)).
right
Nor does the child have a vested
(emphasis
Article
to seek
utilizing
Family
paternity provisions
Law
benefits,
relitigating
Regarding
and survivor's
not
inheritance
paternity might
opposite
have the
effect on the child. He could
issue of
receiving
prevented
inheriting
from his actual
from
or
benefits
father,
financially
putative
might
stable than the
father.
who
be more
Judge Eldridge pointed
problem, along
potentially
out the
with other
consequences,
continuing
adjudicate paternity
wrong
of
in the
dire
S.,
Md. at
648
at 451
father in his dissent in Tandra
336
A.2d
J., dissenting):
(Eldridge,
judgment
paternity
continuing
A
has
ramifications uncharacter-
typical judgment
by
istic of the
rendered
a court.
In addition to
support,
providing the basis for child
a
determination
affects,
alia,
rights, citizenship,
inter
inheritance
and the child's
history.
knowledge
Sampson,
medical
See
v.
of his or her
Locklear
(Fla.App.1985);
478 So.2d
Crowder v. Com. Ex. Rel.
1115
Thus,
Gregory,
(Ky.Ct.App.1988).
S.W.2d
151
accurate
critical,
simply
determinations of
are
not
because a child is
father,
support
entitled to financial
from his or her
but also because
organ
may later be in need of a blood transfusion or an
child
transplant
compatible family
may
from a
member. A child
face
marriage
childbearing
decisions about
based on
risk
passing what the child believes are inherited conditions.
on
has a
in a
support.
person
right
particular
vested
“[N]o
of a
or in
remedy
right,
particular
for enforcement
modes
or rules of evidence. The
procedure,
legislature
pass
remedies,
changing, eliminating,
adding
retroactive acts
so
long
passage
as efficacious remedies exist after
of the act.”12
Construction,
Singer,
Statutory
Norman J.
Sutherland’s
(footnotes omitted).
41.16,
§
supra,
at 429
holding
already paid
Our
to the
apply
support
by
does
putative
they
support.
fathers and to the arrears
owe
Those property rights
already
clearly
are
accrued.
It would
problems, particularly
raise
the areas of
takings
due
process,
interpret
for this Court to
the statute to extend the
retroactive
so
application Chapter 248
far
a child must
claimed,
received,
back
pay
support already
adjudicated,
expended through a paternity-related
support,
child
or other
order,
compensatory
during
period
legally
it was
in effect.
Likewise, this
reasoning applies
puta
debt owed
through
prior
order,
tive father
compensatory
which is
putative
enforceable at least until the
father initiates
to attack
proceedings
declaration to which the
(“A
41.06,
order relates. See 2 id.
at 880
right
vested
has
equated
‘property’
been
with
order to
it for
qualify
protec
interference.”);
tion from arbitrary
Washington Nat’l
cf.
Arena Ltd.
Partnership,
Md. at
B. Paternity Aside Declarations to Set in rele- Family Law Article states 5-1029 of the Section part: vant genetic Blood or tests. 5-1029. Administration,
(b) the motion of the general.—On In motion, the court or on its own party proceeding, to the mother, child, alleged father to submit shall order the alleged tests to determine whether genetic blood or the father of the child. being father can be excluded as evidence.—(1) (f) Subject Laboratory report subsection, laboratory of this provisions paragraph of the blood or test shall be received report evidence if:
(i)
established; or
exclusion is
definite
(ii)
sufficiently extensive to exclude 97.3% of
testing
fathers,
’biological
are not
and the
alleged fathers who
distinguished
negative paternity
The Court
the cases
after a
test.
lowed
revisory powers
Chapter 248
in those states.
based on
broader
result,
argument.
those
obviously changed the context of that
As a
S.,
now,
cases,
by this Court in Tandra
are
reason of
disfavored
See,
statute,
e.g., Spears Spears,
v.
in accordance with our views.
1995
605,
("[I]t
(Ky.Ct.App.1990)
apply
S.W.2d
607
is our belief that to
784
challenging paternity,
judicata
preclude
from
when
[the father]
res
father,
testing
that he is not the
would 'work an
blood
has shown
385,
Franzel,
"); Department
Mich.App.
v.
204
injustice.’
391,
Soc. Servs.
495,
(holding
longer
497
that a
order was "no
516 N.W.2d
father),
putative
appeal
equitable" after a blood test excluded the
995,
also,
denied,
(1994);
e.g.,
parte
447 Mich.
The issue debated is whether the mandatory genetic requirement blood or test 5-1029 section also motion, in a an applies, upon proceeding whereby adjudicated father is to attempting set aside the declaration against putative entered him. The fathers claim appeal State, mothers, apply, it does while the on behalf of the curiae, amicus claim trial court must first consider the “best interests of the child.”
An examination of section 5-1038 legislative history and its makes clear that the “best interests of the child” standard generally place proceeding has no a paterni- reconsider (a)(2)(i)2 First, ty plain reading declaration.14 of subsection reveals that it to “a cross-references blood or test done 5-1029(b) § in accordance with 5-1029.” A reading of section then states that the motion of ... a party “[o]n mother, ... proceeding, child, the court shall order alleged father to submit to or genetic blood tests to determine alleged whether the can be excluded as being the father added.) (Emphasis the child.” The word “shall” makes it that, clear at least in a proceeding to determine paternity, or a challenge to a prior paternity declaration under section 5- 1038, a blood or genetic triggered test is to be automatically any party, including father, when putative moves to have testing conducted. addition, 5-1038(b)
In plain language of section states ]xcept a declaration paternity, “[e the court modify or set aside order or an part of order under this just subtitle as the court considers proper light circumstances and in the best interests the child.” (Empha- added.) words, sis In other the “best interests” standard is only be considered the trial court in corollary matters declaration, visitation, such custody, “giving bond,” or “any other matter that is general related place original paternity It also has no in the fact-driven action. 5-1035(a) See interests of the child.” and best
welfare (enumerating provisions additional Law Article Family *25 a conjunction in with may grant an order a circuit court which declaration). paternity Chapter passage process leading legislative
The noted, section 5- supra, further. As point this emphasizes Assembly to by the General was to be modified originally any attempt in to review analysis interests require the best Both H.B. court order. paternity-related or prior paternity repealed have reading, first would at their 337 and S.B. “may that a trial court 5-1038 to read re-enacted section and this or of an order under any part aside order modify set in just proper light and as the court considers subtitle of the child.” Ulti- in best interests and circumstances com- so that orders language was amended mately, other than decla- proceeding, of a ing out themselves, “just proper could be amended when rations in the best interests of in of the circumstances and light child.” opposi- unsuccessful in the bill files evidence the
Materials In a March in the statute. tion to this modification Baker, Director Acting M. Executive to Senator Walter letter M. Joan Enforcement Administration Support of the Child best stated, 1: are concerned that ‘the at Knight “[W]e for in Section provided the child’ is not interests of to include the best interests that the bill be amended request a declaration of decision to dissolve of the child that amendment never Despite Knight’s plea, Ms. paternity.” was interests of the child” standard occurred and the “best of whether to set aside from the determination excluded declaration. prior paternity go also lack of a best interest standard did for Jessamy, Attorney C. the State’s by
unnoticed Patricia letter, supra, In her she noted: City. Baltimore that to factor to be considered is avoid Another additional it is for courts paternity, possible redetermination in all mandatory testing blood request to order or plaintiffs, frequent cases. This would resolve the most request redetermining testing, i.e. blood but paternity, public also involve a substantial expenditure would funds requested. [Emphasis cover the additional blood tests added.]
Although discussing testing she was the context of an original paternity proceeding, Jessamy recognized the Ms. that, mandatory agree effect section 5-1029. We without cost, considering might trial preferable courts require testing original in the paternity proceedings; decla- ration backed a conclusive test confirming paternity would provide greater finality, stability, Maryland’s and thus system determining paternity.15 The putative fathers case, however, not have such testing did conducted original hearings. their To not allow testing now would violate the mandatory tenets of section 5-1029 the Legis- *26 intent, lature’s in enacting Chapter provide to relief to putative seeking fathers review of potentially paternity false hold, declarations against given legislá- entered them. We files, newspaper copied 15. We also note one of the articles into the bill Bowling, supra, quotes University of Baltimore Law School Professor Murphy, presented Jane appeal who an amicus curiae brief in this on article, Family behalf of the law school's Law Clinic. In the Professor Murphy potentially way paternity discusses a better to administer cases: this,” system encourages "Our kind of ... "In order for a mother Children], to collect AFDC Dependent [Aid to Families with she has to name someone go for the office of child enforcement to [”] after. "[Naming pressure, the father] is done under and without the formality encourage truthtelling.” that would way Requiring "Is there a better to do verify it? ...” a blood to test option, says.... the mother’s word is one she adds, better, ... paternity ... more [S]he accurate determinations of key avoiding judgments are the to involved here. rigidity "The kind majority opinion inappropri- reflected in the concerned,” adds, ate noting unlikely where children are she it is Tyrone W. or John S. will ever take more than a financial interest in putative their children’s lives. "I making exceptions can see the court's concern with not finality judgments,” says, judg- she "but we should either make exceptions ments more accurate or create cases].” [for original.] [Some alterations in 248, that history Chapter Legislature behind intended tive available, motion, upon be made genetic for blood or tests to decla- any putative seeking challenge him in such previously against ration entered which blood Moreover, an test was not introduced. exam- evidence in of the place of the best interests child has no that ination determination. that, legislative history, note faced with similar
We
when
Warren,
Minnesota, in
v.
Appeals
Spaeth
the Court
(Minn.Ct.App.1991),
reached the same conclusion
N.W.2d
judice. Spaeth
we
in the
sub
addressed
issue
do
case
analysis
applied
the best interests
should be
in a
of whether
of whether
allow a
case to
pre-trial determination
Paternity
proceed under Minnesota’s version
the Uniform
portion
“Minnesota ... excised the
Act. The court noted that
”
child.’
referencing
of the UPA
‘best interest of the
Id.
[the]
court
was
analysis
at 323. The
held that the best interest
not
adjudicating paternity.
to be considered
Id. at
holding
history
testing
Our
is also bolstered
statute,
history
section 5-1029. We discussed that
Eagan
(1988).
Eagan
313 Md.
The new was the give section enacted order court a relatively the benefit of new tool—the scientific use Bowen, prove nonpaternity. blood tests to “Blood Tests Ill, Disputed Parentage,” 18 Md. L.Rev. (hereinafter Bowen). It provided: in bastardy proceedings
Whenever the defendant de- child, that he is upon petition nies the father defendant, complainant, the court shall order that the her child and the defendant submit to such blood tests as necessary be deemed to determine whether or not can be being defendant excluded as the father of the evidence, child. result the test shall be received in but in case exclusion established .... definite [emphasis supplied]
This new patently addition was for the benefit of the State, 437, 449, defendant. v. Shanks 185 Md. (1945); Bowen, 18 Md. L.Rev. at 116-117. (alteration 269-70,
Id. at
Petitioner Locklear, appellees Riffe and and ami- curiae, cus argue that a number of previous Court of Appeals decisions impliedly inject the best interests analysis into a All declaration. of these cases are distinguishable, Whisted, however. In Turner v. 327 Md. 607 A.2d 935 (1992), mother, Kelly Whisted, had been involved with man, Turner, another William prior marriage her and there *28 430 husband, be the Her might
was evidence that he father. Whisted, on the was listed as the child’s father birth Danny briefly, during The parties separately certificate. married Eventually, time the lived with Turner. which mother marital Kelly home. Whisteds reconciled returned child, Turner, a with the developed relationship who Mr. had ensued, that During the he sought rights. litigation visitation paternity court blood tests of prove moved the to order to the child. relief, that could such on a grant held the trial court
We
cause,
showing
good
equated
which we
to
that
showing
be “in
child.” See id.
test would
the best interests of the
Court, however,
116, 607 A.2d at
This
reasoned that
test was not to be conducted under
edicts
the blood
5-1029,
section
illegitimacy provisions
section
but under
1—208(b)
Trusts
id. at
Estates &
Article. See
607
recognized
utilizing
at 938. The
Estates &
A.2d
Court
“
1—208(b)
section
was meant to be a
‘less traumatic’
Trusts
Family
than utilizing
means of
Law
establishing paternity”
Solis,
provisions.
Id.
v.
263
(citing
Article
Thomas
536, 544,
(1971);
781
v. Eversberg,
Md.
A.2d
Dawson
308, 314,
(1970)). Thus, paternity
Md.
l-208(b),
of section
testing performed
authority
under
specifically
not
mention
was to be
testing,
which does
ordered
That
pursuant Maryland
a court
Rule 2-423.
rule is
discretionary and
found the
is where
Turner decision
standard,
equated
it
“good cause”
which
best interests
See
analysis,
testing.
the context of blood
id. at
113-14,
section
Proceedings
Monroe v.
329 Md.
A.2d
sought
distinguishable.
being
“Rather than
easily
cited and is
in
in an
...
the blood tests
paternity,
action
establish
in
of a child
being requested
the context
[.Monroe] [we]re
custody
the mother of a child born out
dispute between
ha[d],
after their
wedlock and the man who
both before and
marriage, acknowledged that child as his own and maintained
766,
relationship
a
with her.” Id. at
621 A.2d at
fatherly
hopes
blood test in the
that it would
sought
mother
and, thus,
that
not the
father
prove
biological
her husband was
him
deny
custody
her case to
of the child. As Chief
Monroe,
Judge
recognized
Bell
329 Md. at
A.2d at
not a
“establishing paternity
necessary
is
factor
be
addressing
custody.”
when
the issue of
Monroe
considered
trial
held that the
court had to consider the “best interests”
a
is
analysis prior
ordering
the test because
court
“[w]hen
upon
parties
called
to resolve the issue of which of the
to a
child,
custody
a
custody
child
action should be awarded
critical
is in the best
overriding
consideration is ‘what
factors;
It
of several
simply
interest
the child?’
is
one
rather,
objective
all
factors
virtually
is ‘the
which
other
”
(citations omitted).
speak.’
See id.
The same
does not
analysis
apply
fact
visitation, custody
accompanied
As with
order of
an
reviewed,
all,
must
if at
original
declaration of
5-1038(b),
to section
which
the best inter-
pursuant
requires
is
absent
analysis.
analysis
notably
ests
That standard of
5-1038(a)
origi-
to an
provisions relating
from section
out Mon-
pointed
As the Court
paternity proceeding.
nal
roe,
must be conducted
“weighing process
interests
the best
a presumptive
father nor
putative
where there
neither
man,
but
who has
paternity,
for the child’s
vying
own,
in combat with the child’s
the child as his
locked
treated
A.2d at 905.
custody].”
on
Id. at
[of
mother
the issue
paternity disputes
a situation far different from the
This is
appeal
before us now.
(1994),
Sider,
512,
substantially cases, In sought.17 great majority are of these *31 addition, presumably In the circumstances Sider would now Laws, Maryland by Chapter which enacted section addressed 5-1002(c) subtitle[, Family “Nothing of the Law Article: in this “Pater- right putative nity Proceedings,”] may be of a construed to limit complaint paternity father to file a to establish his of a child.” McEwen, Comment, R. 17. This distinction was also noted in Jean E. Right Standing & J.W. The to McG. C.W. v. & W.W.: Putative Father’s State, mother, on who initiates the is the behalf father. As in the against putative present proceeding cases, State, agencies, litigates the through its various And, to in the name of the mother. as the matter conclusion out, may present challenge fathers often not be to points letter genetic sample. or to a blood or proceeding provide by relief to such fathers Chapter provide 248 was intended allowing testing paterni- to seek even after the them ty against declaration them has been rendered. illogical deny putative
We further note that it would be genetic to receive a test under chance blood 5-1029, otherwise, analysis on a interests section based best type proceeding by Legislature when the envisioned 5—1038(a)(2)(i)2 if requires testing, section that such adopting requested, must be to consider whether to conducted order biological as the father. Without complainant exclude father could in his chal- testing, putative never succeed lenge Special Appeals point- the declaration. The Court analysis: ed this out below well-reasoned 5—1038(a)(2)(i)(2) § F.L. provision present permit- [T]he ting modify a court to or set aside an enrolled declaration of if blood or “done in accordance testing § with 5-1029 of this subtitle establishes the exclusion” if adjudged meaningless father would be the exclusion- ary F.L. testing pursuant 5-1029 that serve as the revisory basis for the court’s exercise of its must power requested prior have been and obtained to the declaration of paternity. Obviously, if blood or genetic testing excluding alleged prior father had been obtained to the declaration Presumption Paternity, Rebut the Marital 76 Nw. U.L.Rev. (1981): question of the child's best ... arise until the interests does not putative procedural right father has first been accorded his to stand- ing paternity. say to establish his This is not to that the best interests unimportant, they of the child are but are irrelevant preliminary paternity. factual A essential determination of suc- putative automatically a example, cessful action father does not custody, entitle him to nor even to visitation with his child. *32 a declaration of there would not have been paternity, (who not adjudged would at all and the reviso- invoking not be “adjudged”) have become would 5-1038(a). reject F.L. We as of the court under ry power contrary. position illogical appellees’ W., at 573. 741 A.2d Tyrone Md.App. mandatory 5-1029 are provisions that the section
We hold moves for a blood or party any paternity proceeding once a post-declaration proceeding, a genetic test. This includes paternity, conducted subsequent to the initial declaration 5-1038(a)(2)(i)2, be- challenging the declaration under section be, not, may biological father is not putative cause the of section 5- mandatory statutory language father. Given section, history of that the “best interests” determining not in analysis generally may be conducted grant testing. whether to a motion for Laches
C. briefly issue of laches as a defense to We address the (in two case numbers 117 and appellant Langston’s complaints 137) it mentioned the circuit court its because was First, appear complaints dismissal of the below. does the defense of appellees from the record that ever raised court to have not Appellees laches for the trial consider. below, Thus, issue, if it raised argued appeal. it on was Second, has not we note that it would seem preserved. been appellant in this case because could inequitable apply laches believed, to this that he was legitimately prior appeal, have declarations challenge pre-1995 unable of Tandra against him with blood or evidence because addition, out, unaware of his appellant points S. In he was until, case, test was potential complaint one case, and in the other when he County, conducted Harford question. At learned he not be the father of the child minimum, laches, raised, if would have defense from the of those events. delay considered based on the time alone, however, Delay is not enough prove laches. Brummell, In 646, 649-50, Howell v. 293 Md. (1982), paternity case which the father laches pled
after a ten-year delay, this Court noted: argument] laches is based on
[The the contention that two potential defense witnesses became unavailable during the *33 delay. argument This was undermined at trial by testimony which showed that one of the in witnesses resided the appellant’s hometown by and could have been served the sheriff and that appellant the knew that the other inwas the Therefore, armed services in Germany. West the wit- nesses’ absence at trial was not by delay. They caused the were available to the appellant the time of trial through subpoena deposition. or Parr, 222, 164 in Lipsitz
“As was held v. 164 Md. A. 743 (1933), laches is an delay, inexcusable without necessary duration, reference to and, the assertion of a right, mounting unless to statutory period limitations, the laches, delay mere is not to constitute the sufficient if delay has not worked a disadvantage to another. See Futrell, 512, 525, v. 225 Md. 171 A.2d 500 Bradford (1961).... Prejudice injury or to the party raising ‘lach Clark, es’ is an essential element. v. Simpers 239 Md. 395, 403, (1965). 211 A.2d So long position as the parties the is not changed and there is no prejudice delay from the laches are inapplicable. Oak Lawn Ceme tery 280, 291, v. Baltimore County, Md. [174 198 A. (1938) Board, Salisbury Beauty ].” Schools v. State 32, 63, added). 268 Md. (emphasis Any prejudice that resulted from the absence of the two witnesses at trial was by appellant’s caused the to failure subpoena depose or them and not by passage the of time. Consequently, apply laches does not under the facts and circumstances of this case because delay did not cause prejudice appellant. original.] [Alteration in Neither Attorney State’s nor the circuit court below any potential discussed prejudice appellees to and we do not find evidence of any prejudice within the record. Summary and Effect on Remand
III. Laws, 248 was intend- Maryland Chapter hold that 1995 We cases, all applied paternity to be to Legislature ed Thus, anyone who has had initiated. whenever 1, 1995, him against prior October declaration entered initiate testing, generally may pro- genetic without blood and under section modify or set aside that declaration ceedings 5-1038(a)(2)(i)2 pro- In those Family Law Article.18 motion, may, by request blood ceedings, putative 5-1029, test, to confirm to section order pursuant or which is admissible evidence under deny paternity, inter- A determination of the best of that statute. provisions testing, or ordering requested child in ests revised, original whether paternity, consideration holding today applies only proceedings inappropriate. Our declaration; an attempt modify or set aside an resulting original from modify or set aside other order 5-1038(b). In by section governed declaration is addition, necessarily affect holding of this Court does *34 already paid or arrears as of the date any support child trial court. filing respective proceedings of these respondent Tyrone W. and holdings, Pursuant these proceedings to initiate appellant Langston William are entitled against declarations entered paternity below set aside 117, 1, In appellant case number prior them October test, already has taken a blood which has conclusive- Langston him Pursuant to section ly biological excluded as the father. 5-1029(f) Article, may those test Family of the Law he admit paternity to set aside the hearing results into evidence at his 137, In 136 and both men declaration. case numbers they are the genetic tests to determine whether seek blood paternity biological question. fathers of the children exception paternity statutory declarations in which the 18. There is a knowing "acknowledged paternity he was not the fa- putative father where, 8(a)(2)(h). exception is also an in the ther.” 5-103 There case, a final decision on the original paternity this Court rendered Maryland paternity prior to the effective date of 1995 merits of the issue Laws, Chapter 248. and, conclusive, if tests should be administered admitted into evidence, testing to section 5-1029. If the excludes pursuant paternity, and the lower courts set aside either of this Court affect judgment, holding necessarily does support already paid proven child or the arrears by owing the mothers to be due and as of the time of the original filings of these reconsideration in the trial proceedings Thus, in Tyrone appeal, court. W.’s case number respondent Special Appeals. we affirm the decision of the Court of In cases 117 and we vacate the of appellant dismissal Langston’s and remand the case for further complaints pro- ceedings.
IN CASE NO. JUDGMENT OF THE COURT OF AFFIRMED; SPECIAL BE PAID APPEALS COSTS TO BY THE STATE OF MARYLAND.
IN 117 AND THE CASE NOS. JUDGMENT OF VACATED; CIRCUIT COURT FOR BALTIMORE CITY REMANDED CASE FOR FURTHER PROCEEDINGS OPINION; NOT INCONSISTENT WITH THIS COSTS TO BE PAID BY THE MARYLAND. STATE OF
BELL, Judge, Dissenting. Chief today This Court holds: Laws, Maryland
“... 1995 Chapter 248 was intended Legislature cases, to be to all applied whenever initiated.[1] Thus, anyone who has a declaration 1, 1995, him against prior entered to October without blood genetic testing, generally may initiate proceedings modify or set aside declaration under section 5- 1038(a)(2)(i)2 Family Law Article. In those proceed ings, putative may, by motion, request a blood or test, 5-1029, pursuant to section in order to confirm deny paternity, which is admissible evidence under the *35 provisions of that A statute. determination of the best agree Legislature 1. I that the intended the amendment to be retroactive. did, Having dispatch acted with the that it it is inconceivable that it any remedy. would intend that meritorious case would be left without a testing, or requested ordering child of the interests revised, or original whether paternity, the consideration pro today applies holding Our inappropriate. is declaration; an paternity modify or set aside ceedings resulting order any aside other modify or set attempt by section governed paternity declaration original from an 5-1038(b).” Thus, amend- 396, 437, from the 754 A.2d
359 Md. decisions, of our which response to one ment of a statute Legislature indicates that history of the amendment finality to the interpretation an gave too restrictive thought 2-535, right majority expands Rule Maryland rule of to seek modification simply order not of one under achieve, order, sought to Legislature clearly what the of that to the obtain, right regard and without as a matter but also the certainly not the child who is anyone, interests of order, test, to a pursuant a blood or subject of the only addresses that has not been amended and which statute I cannot simply Because pre-paternity proceedings. order majority intended what the orders Legislature believe that the logic majority’s resolution the issue and because the me, I presents escapes this case dissent. W., 303, 306, Tyrone
Tandra S. v. 336 Md. a court can vacate an question addressed “the whether judgment post- on the results of a enrolled based on mother’s judgment post-judgment blood test based father is not in fact testimony judicially that the determined question required resolution of that the father.” The (1984, § 5-1038 of the Repl.Vol.) of Md.Code construction Article, which, provided: at the time Family Law “(a) in the manner paternity final.—Except Declaration of of an any equity order or decree and to the extent of the court under subject revisory power court is law, rale, procedure principle practice established in an is final. order equity, declaration “(b) for a modification.—Except subject Other orders may modify court or set aside paternity, declaration *36 any part order or of an order under this subtitle as the just proper light court considers and of the circumstances and in the best of interests the child.” a We concluded that court could not vacate an enrolled judgment enumerated, under the circumstances therein rea- soning, 5-1038(a) (b) §§
“Reading and together, is clear that the rule, 5—1038(b), § more liberal revisory governs orders re- lating paternity, but does not control the of declaration Rather, § paternity itself. 5-1038 entirety read its makes it strict revisory plain rules set forth in Rule 2-535.” that paternity judgments are [2] governed by the 2-535(b), 336 Md. at A.2d 445. Under Rule after thirty days, judgment a may becomes enrolled and be revised fraud, mistake, a of or irregularity. See only upon showing (1974, Maryland Code 1989 RepLVol.) 6-408 of the Courts (“[ajfter Proceedings and Judicial Article3 expiration [thirty days,] the court has revisory power and control over fraud, judgment only mistake, in case of irregularity, or failure of an employee the court or of the clerk’s office to rule”). perform duty required by statute or After reviewing precedents fraud, on the meaning of mistake and irregu- larity, we that determined neither had been shown. Maryland provides, part: 2. Rule 2-535 in relevant "(a) Generally. any party On days motion of filed within 30 after entry judgment, may revisory power the court exercise and control and, court, judgment over the if the may action was tried before the any take action that it could have taken under Rule 2-534. "(b) Fraud, Mistake, Irregularity. any party On motion of filed at time, revisory power the court exercise and control over the fraud, mistake,
judgment
in case of
irregularity.”
(1974,
Maryland
Repl.Vol.) §
Code
6-408 of the
Courts
Proceedings
provided:
Judicial
Article
period
days
entry
judgment,
"For a
of 30
after the
of a
or thereafter
pursuant
period,
revisory
motion filed within that
the court has
power
judgment.
expiration
control over
After the
of that
period
revisory power
the court has
judgment
and control over the
fraud, mistake,
irregularity,
in case
employee
or failure of an
perform duty required
of the court or of the clerk’s
by
office to
statute or rule.”
Thus,
prove
of the evidence to
reliability
despite
case,
excluded
in one
a blood test
non-paternity,
petitioners’
mother,
and,
other,
in the
W.
petitioner, Tyrone
after the
to that
shortly
name
changing the child’s
father,
man,
as the child’s
admitted
whom she identified
child,
S., Jr.,
not the father
her
John
was
petitioner,
petitioner,
the result
in each case of
unfairness
adjudicated fathers acted
to whether the
regard
without
*37
336
at
ordinary diligence, Md.
faith or with
good
sacrosanct, that
finality
was
held that the rule
at
we
stand,
being
exception
no
must
there
the result
both cases
tests,
to the blood
change
to
it. As
the Court
permitting
States,
stated:
of courts in other
we
noting
agreement
tests,
court relied on
vacat-
which the circuit
“The blood
2-535(b)
alter this result. Rule
ing
judgment,
do not
revisory powers.
very
a circuit court with
limited
provides
change
unambigu-
The results of the blood test did
Therefore, the
revisory
that exists in the
rule.
ous mandate
1990 paternity
court
when it vacated the
circuit
erred
because,
the circuit
the child fatherless
judgment and left
fraud, mistake,
irregular-
nor
recognized,
court itself
neither
from other
ity
majority
occurred. The
decisions
had
similarly reject attempts
reopen paternity
jurisdictions
blood tests.”
judgments
post-judgment
based on
Similarly,
regard
648
at 447.
with
Id. at
A.2d
pointed
the Court
out:
change proceedings,
name
nullifying
the 1986
“But this did not have the effect
father;
which declared John
be the
paternity judgment,
furthermore,
regard
In
Randy.
not vest
did
between
parental relationship
as to the
child,
meaningless.
was
See
change
and the
the name
John
Edelmann,
150, 175-76, 577 A.2d
County v.
320 Md.
Carroll
(a
parental
to terminate a
authority
court has no
through
adoption
other than
decree
relationship
to termi-
Even if it was the mother’s intent
guardianship).
by changing her child’s
support payments
nate John’s child
name,
Stambaugh
In
v.
result would be no different.
Admin.,
(1991),
“Moreover, if
to uphold
we were
the lower court’s decision
case,
in this
the ramifications could
potentially
disas-
trous. For
if
example, what
the mother in another five
years changes her
again
statement
and testifies that John is
juncture
father? Should a court at that
reinstate the
In
original paternity judgment?
regard,
policy
finality
an important purpose—the
serves
parties under-
stand their respective rights and need have no concern
about future developments changing
rights.”
their
322-23,
Id. at
We concluded:
“It is therefore clear that overriding policy the in Maryland emphasizes decided, that once a case is it shall remain decided with certain very Moreover, narrow exceptions. majority of jurisdictions decisions from other support giving judicial and, conclusive effect to a of finding paternity therefore, in are accord with our today.... decision
“The
in
Indeed,
result
these cases
seem harsh.
case no.
Tyrone has been excluded as a possible father.
Nevertheless,
case,
in each
the ‘judicially determined father’
was advised of all the safeguards the law
to
provides
decisions,
prevent incorrect
rights.
and waived all those
It
is
that
evident
each man had an adequate opportunity to
obtain a fair
full adjudication
and
paternity
original
action, but each failed to avail himself of that opportunity.
To argue that fairness requires relitigation of the paternity
question totally
adjudicated
overlooks the fact
that
contest
have a chance to
cases did
each
these
fathers
not,
accept
to
instead
choosing
issue but did
paternity
be
knowing
they
that
would
determination
paternity
also over-
It
respective
their
children.
required
if
occur
the children
the unfairness that would
looks
thereby leav-
relitigated,
to be
paternity issue were allowed
support.
and without
ing the children fatherless
court’s reviso-
“Moreover,
consistently said that a
we have
the amendment of an enrolled
provide
do not
ry powers
”
ground
on the
of ‘fundamental unfairness.’
judgment
324-25,
Id.
other
(1984,
Family
of the
Repl.Vol.),
5-1007
ryland Code
relevant,
rule
Article, which,
“[a]ny
that
provided
Law
a
applies
proceed-
that
procedure
court or statute
relates
rule or
to the extent that
ing
under this subtitle
...,”
...
practical
under
circumstances
statute
judgments.
review of
336 Md.
applied
dissenting). But it was the
(Eldridge,
The same focus apparently guided the
Assembly
General
decision,
overrule our
majority
as the
points out. See 359 Md.
“(a) Declaration paternity final; modifications.—
“(1) Except provided in paragraph of this subsec- tion, a declaration of paternity in an order is final. *40 “(2)(i) or set may be modified A declaration of aside: or any order
“1. in manner and to extent revisory subject court is equity of an decree rule, law, or any established of the court under power equity; in or practice procedure of and principle in with “2. if or test done accordance genetic a blood of the § the exclusion 5-1029 of subtitle establishes father in the order. named as the individual (i) “(ii) of this subparagraph paragraph, Notwithstanding or set paternity may of not be modified a declaration acknowledged if in aside individual named the order knowing he was not father. “(b) for a subject modification.—Except Other orders to modify or of the court set aside paternity, declaration of this subtitle as part order or an order under circumstances just proper light court considers and child.” and the best interests of the (1984, See, Family § RepLVol.), 5-1038 Md.Code Article. Law (a) be read in context to avoid an
Section 5-1038 must read, § 5- So it becomes clear that unintended result. 1038(a)(2) mean, mean, nor be that the can neither read 5-1029, mandatory language §of Legislature intended the applies paternity, to the initial determination of which for anyone in an entitlement to blood tests who result absolute modify or set aside a declaration desires seeks observed, statutory As this Court has paternity. previously interpretation statute,
“begins light with the words of the read they appear, light full context in which of external general purpose manifestations intent or available through language clearly When other evidence. apparent purpose of the statute and the consistent with absurd, no required. result is further research is More- over, the must under- analysis language the statute’s technical, per- rather than a taken from a commonsensical spective, always seeking giving avoid statute strained or an interpretation one that reaches re- absurd sult.” State, 305, 308-09,
See Bane v. 327 Md. 314-15 (1992) (citations omitted). internal quotes § Present 5- 1038(a), § 5-1038(a), detail, like former albeit more pre may modify scribes when a court set a paternity or aside order. It such permits order be modified or set aside court, (a)(i) 1, other equity orders or decrees an subsection test, when a blood “done in accordance with 5- *41 1029” person excludes the in order named the as the father. amendment, intent, The mirroring Legislature’s the quite specific: it a provides mechanism to avoid the harsh results in
Tandra by expanding S. the in which circumstances the court may order; modify paternity a it no any does more nor less. Most the assuredly, amendment does not deal with entitle ment of a named in person decree to a blood or genetic § test 5-1029 or provide any support under for the notion, the by majority, genetic advanced that blood or tests may demand, now be on requested ordered in aid modifi order, no, cation of a paternity any, reason, for or other than the that the man uncertainty may now have concerning his paternity of a child to whom the court entered the paternity order. sure,
To § 5-1038 does § refer to 5-1029 and a blood or genetic is, test done accordance with that section. That however, a most reed on rely slender which to proposi- the 5-1038, tion that Legislature, by § the amending only and that section, not to intended address the unfairness of the finality but, time, rule at the same to allow disaffected father under a order challenge to that order and automatically to be assisted making challenge by the being § entitled to 5-1029’s mandatory genetic or provi- blood test sion. The reed becomes even more when it is slender recalled that situation, 5-1029 addresses the pre-paternity order when there has no is; been determination of who the father simply does to apply the situation that exists the case sub judice, determined, where has been by albeit test genetic or time blood and after the when agreement, ordered, re- have, it been have, had and been would could quested. provides: 5-1029
Section mother, child, the “(a) request may The Administration or tests. genetic blood alleged father to submit “(2) child, comply mother, or father fails alleged if the Administration, the Administra- of the request
with for an order to the circuit court apply tion to the tests. submit directs the individual Administration, a “(b) party of the On motion motion, the court shall order or on its own proceeding, child, blood or mother, alleged to submit alleged father can be genetic tests to determine whether father of the child. being excluded as “(c) laboratory made in a blood tests shall be genetic The or provided from a of laboratories by the court list selected the Administration.
“(d) report results each blood laboratory shall requires. form the court writing test in genetic “(e) laboratory copy report A blood or their provided parties shall be counsel test *42 that court directs. manner the (3)
“(f) of this Subject provisions paragraph to the subsection, report genetic the the blood or test laboratory in evidence if: shall received
“(i) established; is or definite exclusion “(ii) to 97.3% exclude testing sufficiently the is extensive fathers, the biological who are not and alleged fathers is at of the father’s probability alleged statistical 97.3%. least
“(2) of the A is facie laboratory report prima evidence genetic of a or test. results blood (ii) “(3) (i) Subject provisions subparagraph to the laboratory genetic of the blood or paragraph, report the of a presence the test is admissible evidence without laboratory doctor or technician from the that prepared the if report the report: by
“1. is the signed doctor or technician who prepared report; or verified the
“2. that the result of or genetic states the blood test is report. as stated in the
“(ii) laboratory When the of the report blood or genetic evidence, test is or admitted a doctor technician from that laboratory report the prepared subject the is by any party cross-examination if proceeding party who desires cross-examination has subpoenaed the doctor or technician least 10 before trial. days “(4) A laboratory into report received evidence establish- ing a probability alleged statistical of the father’s paterni- ty of at 99.0% least constitutes a rebuttable presumption paternity. his “(g) if any fails to to a individual submit blood or genetic court, refusal, by test ordered properly introduced in evidence:
“(1) court; shall be disclosed “(2) may be commented on counsel.
“(h) (1) indigent, unless party requests who or blood genetic or who test secures the appearance court of doctor laboratory or technician from that prepared report of or genetic the blood responsible test is the cost of the test the costs with associated the court appear- However, if ance. the requesting party prevails in the proceeding, the court shall assess the cost of the or blood genetic or the costs with test associated the court appear- ance against parties the other proceeding.
“(2) if chargeable any party with the cost of the blood genetic test or the costs with court appearance associated cost indigent, blood test or the costs with associated the court appearance shall be borne by the county proceeding where the is pending, except extent that the court party orders other *43 proceeding part to all or of cost. pay the a “(8) to right any party subpoena Subject to the of trial, a days before custodian of records least that the laboratory prepared from the statement written of concerning the cost genetic of or test the blood report the court appearance test cost associated with and the a presence of be in evidence without shall admissible facie prima constitute of records shall custodian the costs. evidence of
“(i) any party or to the of the Administration upon motion court, court by the and due consideration proceeding if: child support order for the pass temporary shall a “(1) a statistical laboratory report probabili- a establishes 99.0%; and ty of at least “(2) has the putative the court determines that for the ability temporary to child. provide evident, § is makes there As even review 5-1029 cursory (b), relating ordering § more to 5-1029 than section genetic particular or relevance the reference blood test. Of (f), 5-1038(a) believe, (c), (d), (e), is, § I sections conducted, is reported the test to be how pertaining where I provisions It to these that and the effect of the results. is (b). reference, not clearly section Legislature think the had I not yet why another reason do believe There majority reaches. Legislature intended result that the order the event provides statute for modification of him excluding a blood test genetic a named father obtains father; require such a test be obtained. as the it does that challenges to Legislature pater- intended to facilitate Had orders, undoubtedly have amended 5-1029 nity would or it orders testing of fathers named provide clearly have its intention that be done more would stated 5-1038; to blood §in for the absolute entitlement provide has legal genetic testing after determination would, made, could, and, submit, I Assembly been the General 5-1038(a) that, although already § de- clearly have stated father, has a man an absolute nevertheless termined test, clearly rejecting the best right to a blood or thus it chose I cannot believe that interest the child standard. *44 method, this at best circuitous and ambiguous, to accomplish something so important potential mischief, and with such for only not to the might affected, children who but system itself.4
Moreover, the intent majority the attributes to Legisla- the ture is inconsistent with purpose the driving the amendment in the first place. Senator Hollinger, her testimony before Judiciary the House Committee any disavowed intention to leave children “fatherless and without support,” one of the reasons given by Judge Murphy decision, Chief for the which in Tandra S. authored, he majority view, Under the it is quite possible that many children could be left “fatherless and support,” without at least from parent.5 their inconceivable, and, indeed, It is not quite probable, that there will be requests number of for blood by and tests made men who but, now, agreed paternity, payments to perhaps behind in regretting decision, modification; the initial obtaining will take a shot at after all, they nothing have everything gain. to lose and to The losers majority opinion under the are the children. This is ironic since the policy of this State as to those clearly: children has been stated "Purpose.—The purpose of this subtitle is: (1) promote general to and best interests children bom welfare them, by securing out of wedlock nearly practicable, for as care, rights support, same to and education as children born in wedlock; (2) impose to on the mothers and fathers of children born out of wedlock obligations responsibilities the basic parenthood; and (3) simplify to procedures determining paternity, custody, guardianship, responsibility for the of children born added) (Emphasis out of wedlock." majority 5. The cites a letter contained in the Senate bill file from Joan Knight, Acting M Executive Director of Support the Child Enforcement Administration, proposition Legislature for the that the "excluded [the best interest of the child from standard] the determination of whether prior to set aside a declaration.” Md. 754 A.2d at states, 405. That letter "[W]e are concerned that ‘the best interest of provided child’ is not for in request Section that the bill be amended to include the best interests of the child in decision to dissolve a paternity.” declaration of Aside from the fact that it is inappropriate legislative document, history discern from such a it in way necessarily no reflecting the views held Legislator, even one when read in context of the "inequality” "fairness issues” and no majority that the interest of child has holds best modify or set aside a play the decision role holding majority’s interpreta- is Underlying order. 5-1038(a) to be require genetic testing § blood or tion of quarrel §to 5-1029.6 I do not with pursuant ordered is implicated interest the child that the best proposition That a blood is ordered the latter section. when test under shown, when section, governs as I situation have agree- been open an when there has neither question, still situation, In that adjudication nor fact. ment 5-1038(a) designed ad- S. that amendments to were *45 Tandra dress, however, was purpose the overall of subtitle the letter and likely rejected misinterpretation statute. more and as a of the dismissed assuredly, were to be a Most concerns raised in the letter considered if statute, interpretation Legislature likely would have valid of the clearly application child rejected the the best interest of the more of 5-1038(a) provided § for explicitly in and more modification standard 5-1029, § genetic testing specifical- paternity procedures of or blood ly by, probably, precluding of the welfare most consideration child’s 5-1038(a)(2) changes, § cannot before the test ordered. Absent these is mandatory § Legislature language that the of 5- mean intended the to result blood tests in where a in an absolute entitlement to cases paternity sought of to or set declaration is be modified aside. majority 6. The states: also 5—1038(b) plain language “[ejxcept of section states "[T]he may modify any court or set order paternity, declaration aside of part just of an under this the court and or order subtitle as considers light proper in and the best interests of circumstances of words, added.) In (Emphasis child.” other the "best interests” by is standard corollary to be considered the trial court in matters declaration, visitation, paternity custody, to such as bond,” "giving “any general other matter that is related to the 5-1035(a) § and of See of the welfare best interests the child.” Family (enumerating provisions Law to which a Article additional may grant conjunction paternity circuit court an order in with a declaration).” Despite proposed at at 405. both 359 Md. revisions Senate, 5-1038(b) unchanged § final the House went in the Thus, of the of the version statute. best interest child standard applied prior § apply in those areas 5-1038’s continues where it most, change language, sug- amendment. decision not to at gests Legislature goals that the decided to the overall embrace statute, favoring paternity judgments. purpose finality of the It does Legislature suggest applicabil- all that the intended address the ity the best when the is the interest child standard issue right petitioner’s a blood or test. question fact, which, decided, is one of historical until cannot have anything to do with the child’s best interest.
A however, different situation is presented, after determined, has been by agreement whether adjudication. Then, the best interest of the necessarily child is involved. The historical fact of parentage longer alone; no stands now it is intertwined with the interests of the no longer child and is capable separation. established, § Once 5-1029 has no further play role that arena. The amendment to § that, view, 5-1038 change my without, does not as there is case, not in this an making amendment it so. Contrary to the view, majority while the amendment permits the modification judgments when there has been blood or genetic testing father, excludes the named it does not address the named and, father’s entitlement to such testing conse- quently, it does not restrict the consideration of the best interest of the child before post-paternity blood or genetic Thus, testing whether, is ordered. after paternity has been determined, be, be, there will or should a blood test ordered is not a question 5-1029, directed to but to the trial judge, to be decided in light circumstances, the relevant including, therefore, the best interests of the child.
The cases sub judice are exactly type cases which dictates, our case law and the Assembly envisioned, General that the best interest of the child standard applied. would be *46 Through own, no fault of their the children in these cases have been forced into highly stressful paternity proceedings that may significantly impact the rest their Ironically, lives. they while are at the center of disputes, these the records contain no information live, about where they where they go to school, they whether healthy, are what their current family life is like or even they whether are aware of these proceedings. Moreover, the records contain little or no information about the relationship between the children and legal fathers, their them, who would disown or whether the blood tests will promote relationship with a parent. new More disturbing, these proceedings are occurring more than years ten after paternity of the children has been legally, poten- determined
453 life, destroy- family stability their disrupting tially my In system. legal in our may have they ing any confidence on a order modify paternity view, though permitted even modify or set before, “the discretion basis than more liberal they are entered merely because final orders aside otherwise with must be exercised which remedy is a in a case 388, M., 337 Md. Hector v. caution.” Jessica G. utmost (1995). must include This caution 922, 401, A.2d 929 653 of the child. considering the welfare best interest that the consistently required has Maryland the welfare affecting in matters applied be the child standard 166, 170, 106 See, 134 Md. Pangle Pangle, v. e.g., of children. (1919) decid concern 337, (holding primary that the 338 A. highest wel the child’s custody promoting cases ing child 935, 117, 940 Whisted, 106, 607 A.2d 327 Md. fare); v. Turner is the (1992) of the child the best interest (holding that to order blood determining whether concern” “paramount Monroe, 329 Md. Monroe v. paternity); to determine tests (1993) trial court (holding that the 758, 898, 905 773, 621 A.2d tests ordering blood considering whether erred child); of the in the best interest was disestablish (1994) 1076, 512, 527, 1083 Sider, 639 A.2d v. 334 Md. Sider should child standard’ that “the ‘best interest (holding petition”); grant deciding used in whether 10941, 99, 113, 642 A.2d No. 335 Md. Adoption/Guardianship supercedes interest 201, (holding that a child’s 208 parents). of its natural Legislature that the sure, presume must
To be
this Court
interest of
applying
case law
the best
body
was aware
enacted,
amend
subsequently
standard when
the child
5-1038(a).
300 Md.
ed,
Hackley,
Baltimore v.
City
See
Educ.,
v.
283,
(1984); Board
Garrett Co.
1076, together 5-1038(a), revised, §with makes clear that the best interest of the child applicable. standard remains It is I significant, repeat, that while making amendments the Legislature for, not provide address, did petition even 5-1038(a). er’s testing § entitlement to significant It is also 5-1029 procedures outlines initial paternity hearing, subsequent not its modification. majority
Yet the ignores significant impact these pro- ceedings may have on Here, the children involved. via a proceeding, modification the trial courts are presented with a conflict between a paternity determination, valid resulting from court proceedings, and a claim of non-paternity, for the confirmation of which a blood test conducted accordance §with 5-1029 is sought. Contrary view, majority prior legal determination makes the decision to test, order a blood simple not a one determine a biological fact, but an enormously complex decision affecting the welfare child whose is at issue. The result of the test may require blood the modification of a former declara- tion, or, where the parties are married each other and the child born during marriage, presumption of paternity, and the of a uprooting foundation, child’s potentially resulting in significant mental, emotional psychological stress to the child. As this Monroe, Court noted in Monroe v. supra:
“Significant to the best interest determination is the desira- bility, from the child’s perspective, of establishing that the man that is the father the child has ever known ... and who child, is, has acknowledged fact, not the child’s father. The that determination is not only effect of to establish that person who the child regarded as her is, father, fact, not her father, but also to establish that she has no known father.” added). Md. at 621 A.2d at 905 (emphasis Hardly can argue
one that the General Assembly intended that the best interest of children under these circumstances be disregarded or ignored, especially where paternity has legally been de- years clared ten prior. *48 view, majority required,
Under the
the trial court is
me-
chanically,
disturbing
to order a blood test and thus risk
a
legally
paternity judgment,
irrespective
established
of the
have on
impact
family
the test
the child
the child’s
life.
view,
In my
technological
even with the
advances and result-
ing
certainty
identifying
biological
increased
of
parents
analysis,
and DNA
still must
through
testing
blood
courts
of
respect and consider
“best interest
the child” and make
in
independently
a determination
based on the facts
the record
Monroe,
ordering
before
tests. See
329
at
supra,
blood
Md.
769,
Many of our sister agree. example, Supreme states For Court of Kansas addressing when whether blood tests should paternity be conducted in a action involving competing pre- sumptions of paternity prior deciding held that whether order blood tests to determine a presumed parent whether biological parent, the trial court must consider the best child, mental, interests of the including physical, its Ross, emotional needs. In Re Marriage 245 Kan. (1989). case,
P.2d 338-339 In that brought a mother paternity action on against behalf her child both her former husband and alleged biological father. When blood tests proved that alleged biological inwas fact father, biological pay the trial court ordered him to child granted joint custody the mother and her former husband. Id. at 333-34. The Kansas intermediate appellate court affirmed the trial court ruling but held that a best evidentiary hearing interest of the child not did have be held before making such determination. Id. at 334. Criticizing placing judicial economy the intermediate court for child, bastardizing ahead of Supreme Court Kansas appellate regard reversed the intermediate court with application of the best interest of the child standard conclud- of a action does
ing filing that mere “[t]he the action is the child’s best automatically imply this conclusion independently interests. A court must reach on the facts the record.” Id. based Carlson, 108 Wash'.2d Similarly McDaniels v. (1987), addressing Supreme Washington Court P.2d 254 held that: competing presumptions automatically of a action does not filing “the mere A court that the action is the child’s best interest. imply on the facts independently reach this conclusion based must guardian ad the record and the recommendations the interests of the child.” appointed represent litem *49 There, tests to establish plaintiff sought Id. at 262. blood of the child was his of a child born while the mother paternity holding necessary man. that it was married to another While action impact paternity for the trial court to consider the of paternity proceedings, Supreme on the child before the Washington Court of reasoned: experts widely importance stress the development “Child relationships, stability predictability parent/child figure parent. is not the natural parent even where suit, nature, by very .... A its threatens the paternity are concerned that the stability of the child’s world. We standard, broadly interpreted, of the child too best interests any person disrupt become a blanket license for could relationships by claiming to be the long-fostered family of a It be true that a child’s interests are parent child. accurate, as to inaccurate or generally by opposed served However, possi- determinations. it is stipulated, paternity that in some circumstances a child’s interests will be ble no at all. paternity even better served determination standard does not entitle a The best interests child court to that determination is automati- presume Therefore, in the child’s best interest. absent show- cally in fact child’s ing that such determination is within the best interests, this standard cannot be invoked on behalf someone other than the child.” (citations omitted).
Id.
Other courts have followed the
reasoning
sound
McDan
”
See,
“Adam,
Paternity
351,
iels and Ross.
In re
273 Mont.
(1995)
207, 211
903 P.2d
(holding
the best interest of the
proper
child was the
standard to
apply
determining whether
conducted);
N.H.,
blood tests should be
M.F. v.
252 N.J.Su
(A.D.1991)
420,
per.
that the best interest however, is Spaeth, at 322. See id. adjudicating paternity. more, more the unfor- emphasizes distinguishable. What’s in this case and does little reached tunate result majority’s position. summary judgment to a order challenge a involved
Spaeth in action. paternity a undisputed of the granted favor child’s join the child or the There, trial court did not not consider the best as a and it did party mother’s husband at 321-22. The determination. Id. of the child its interest appealed arguing current husband of child and her mother of the have the best interest applied trial court should that the judgment paternity. of making before child standard the trial argument and affirmed rejected court appellate simply best interests reasoning that child’s ruling, “[a] court at 323. Id. biological determination.” are irrelevant cases, challenge involve a did not present Spaeth Unlike the challenge nor did it involve judgment paternity, legal conflicting there are paternity. to a Where presumption courts, with a Minnesota consistent paternity, presumptions country, have throughout of courts significant majority consistently holding Spaeth clearly distinguished v. Kelly of the child standard. See the best interest applied Cataldo, (clarifying that (Minn.App.1992) 488 N.W.2d best interest of the child standard rejection of the Spaeth’s conflicting presump- where there are applicable precedent C.M.G., 516 N.W.2d Matter paternity.); tions of of Welfare of (applying the best interest (Minn.App.1994) should be determining whether a blood test child standard “[wjhere holding conducted to establish exist, the determination presumptions competing fact.”); solely biological an issue longer no (up- (Minn.App.1997) Myers, v. 560 N.W.2d Murphy interest of the child stan- of the best holding application (1990). (1987); § Minn.Stat. 257.64 7. See UPA 9B U.L.A. 320 *51 dard paternity action where trial court ordered blood tests conducted). The facts are not Spaeth only distinguishable, they but illustrate a majority’s analysis flaw that cannot be supported by legislative history Assuming statute. arguendo similar factual scenario as that in Spaeth occurred in Maryland, case, applying majority view “undisputed” father legally who has been recognized as the parent of the child decide at time after the judgment to reopen proceedings by demanding a blood test on based little more than a newly developed hunch that he father, is not biological regard without to the best interest child, long so as acknowledge he did not 5—1038(a)(2)(ii). knowing § was he the father. See In addi- tion, another man may, provided he has standing, reopen the legal test, determination of by demanding a blood also regard without to the best interest of the child. I am if legislature result, convinced that intended such a drastic it would carefully clearly have written it into the statute. do,
I forcefully as possible, dissent.
WILNER, Judge, Dissenting. 1, 1995, law,
Until October Maryland as enunciated in Code, Maryland § Article, 5-1038 of the Family Law made clear that a declaration of paternity embodied in an order entered a circuit court in a paternity case was final and that such a declaration not could later be modified set aside 2-535(b). on a motion pursuant filed Maryland Rule declaration could be reviewed in a timely-filed direct appeal and, presumably, on a motion pursuant filed to Maryland Rule 2-535(a), 2-534 or but days once 30 without elapsed noting of an appeal filing or the of a rules, motion under one of those the declaration of paternity truly became final and unreview- able. That was our holding W., v. Tyrone Tandra S. (1994). Md. 648 A.2d 439 Because of the of 5- wording 1038, the authority of a circuit court to judgments revise its 2-535(b) Maryland under upon Rule a showing of due dili- fraud, mistake, apply irregularity did gence either thus, person even if the paternity, to declarations of *52 prove to father later blood or through be the could declared fact, father, not, in the that he the genetic testing was subject abrogation. not to declaration was revision law, that thus Assembly change to and The General decided Laws, Act, finally adopted, ch. The as enacted 1995 Md. authorized to or set aside declaration modify the court (1) any in the manner to the extent that order paternity and court, subject revisory power equity an court is the (2) if a 5- blood or test done accordance with Family 1029 of Law Article established the exclusion paternity named as the father order. the individual paternity The one that a declaration of imposed limitation was set if named in the may be modified or aside the individual that he not the acknowledged paternity knowing order was 1,1995. father. The Act took effect October Legislature no in the gave The indication 1995 amendment apply that it was to to orders or declarations of silence, already Ignoring majority effect. that con- is, indeed, that and persons cludes the Act retroactive allows who, 1, 1995, prior acknowledged paternity to October either issue, adjudicated relitigate or were that It presumably at time the future. holds that against application normal retroactive of statutes presumption (1) because, view, Legislature in its intended is overcome retroactively appli- that the and applied Act be retroactive permissible procedural Act is both cation because the I with respectfully disagree remedial. most those conclusions. There is that the ch. 248 to Legislature no evidence intended upon that had final operate declarations become 1, 1995; procedural; Act is not prior October it although regarded as remedial with to the respect subject men who entered were declarations 1, 1995, impacts upon impor- prior significantly October rights tant of both the mothers the children substantive affected those declarations.
461
“legislative
established rule is that
enactments are
presumed
operate prospectively
and are to be construed
accordingly.” Granahan v. Prince George’s County, 326 Md.
(1992).
346, 357,
91,
97
A.2d
The reason for
presump
that
tion is
“retrospective
that
which
application,
attempts to deter
mine the legal significance of acts that
prior
occurred
date,
statute’s
potential
effective
increases
interference
persons’
rights.”
with
substantive
(citing
Id.
v.
WSSC River
Co.,
561,
(1987)).
dale Fire
308 Md.
Accordingly, we have
held
presumption against
“[t]he
retrospectivity
is rebutted
where
expres
there are clear
and,
sions
the statute to the contrary;
even where permissi
ble, retrospective application is not
except upon the
found
plainest
Granahan,
mandate in
legislation.”
supra, 326
added).
Md. at
(emphasis
WSSC,
A.2d
See also
supra,
(“[U]nder
The majority’s finding of legislative intent appears to be (1) based on its own view that the perceived injustice to putative fathers “could not be remedied by legislation awith strictly prospective effect,” and “generic some evidence” of Legislature’s the intent gleaned from legislative history. The first by basis articulated the majority simply wrong. is Retro- application active is not necessary to remedy perceived injustice. Nor is anything there in legislative the history that comes even close to an establishing by intent the General Assembly to make the 1995 amendment applicable to declara- tions that became final prior the effective date of the Act.
In light of this pronouncements Court’s clear on what it takes to strong overcome the presumption against retroactive application—“clear expressions statute,” in the “plainest the mandate in legislation”—it impermissible is even to root around for snippets the bill from files which some weak inference of intent may be drawn. If the intent in- statute, may expressed not be
unambiguously however, files, majori- those searching through ferred. In piece most of evi- ty ignores significant what be the then-Department prepared dence—the fiscal note Fiscal Services. enactment, years
In
the 1995
preceding
the three
in the
courts
been
over
filings
averaging
case
circuit
had
1989-90,
26,000
been
they
as far back as
had
per year.1 Even
If
21,000
1995 amendment were
per year.
over
averaging
retroactive,
million
apply
quarter
it could well
over
declarations,
many
half
even as
as a
million. Child
perhaps
num-
equivalent
actions showed at least
support enforcement
men
for child
potential
pursued
support
bers. The
variety
relitigate
women for a
of other reasons to seek
enormous, indeed, overwhelming. The
issue of
was
of Human Resources
that the bill “would
Department
noted
permit disgruntled
opportunity
challenge pater-
fathers the
Maryland
child
cases.”
nity judgments
thousands
Services,
on information
Department
relying
Yet the
of Fiscal
Courts,
supplied by the Administrative Office of the
advised
“[wjhile
Assembly
that
this bill could result
an
General
cases,
reopened paternity
it is assumed that
increase
the budgeted
workload can be absorbed within
additional
If
slightest
of the
there was the
indica-
judiciary.”
resources
retroactively to
enor-
applied
tion that the bill could be
1, 1995,
inventory
prior
surely
mous
closed
to October
cases
would have
note
Administrative Office
Courts
made
rosy
hedged
its
fiscal advice.
prospect
WSSC,
In
confirm-
supra, 308 Md.
A.2d
after
*54
against
ing
general presumption
applica-
the retroactive
statutes,
regard-
tion of
we noted and confirmed what
converse,
corollary,
emanating
ed as
or at least a
principle,
in
largely from
v.
Motors
237
Maryland
Corp.,
Janda
General
(1964),
161,
that
governing proce-
Md.
The nature. It any procedure establishing adjudicat- creates nor alters ing paternity. procedure after October 1995 is precise- ly what it was that action before date—a filed and litigated Family §§ 5-1044 through under 5-1010 Law All effectively Article. that the amendment does is to permit particular a man declared to be the father of a child or to petition reopen following children that declaration him blood or test that excludes as the father. It is a that not right previously substantive did exist. Under our W., holding in Tandra Tyrone supra, S. v. 336 Md. final,
A.2d once the declaration became in the that sense longer subject it was no on appeal pursuant review 2-535(a), timely filed finding motion under Rule 2-534 or of paternity was from af- relitigation. Chapter immune right, circumstances, men forded under limited to reliti- action, that It gate gave determination. them a cause of even case, though the same that previously did exist. That is not, view, in my merely procedural.
Nor is the 1995 Act solely Judge remedial nature. Chief quite aspects Bell notes well the substantive of the legislation. court, permits that, It on the basis evidence most instances, earlier, could have been obtained a legal undo it, often, relationship and with an emotional one as well. That was policy Legislature choice that the made had make, right but to suggest there is no substantive aspect is to ignore reality amendment of its effect. I fully expressed by the view dissenting judges understand S., obviously persuasive Legisla- Tandra which was to ture, comment, I way other, and make no one or the on merits of that view from the perspective policy. social *55 bad, good accomplish- the fact is policy
Whether objective necessarily legally of its leaves father- ment children fatherless, less, emotionally existing sometimes without an an paternal support, ability order and without to inherit adjudicated previously from a man to be the father. It child’s well, abrogates, support flowing to the mother or other that, some the “true” hope day, custodian the child. be discovered and substituted—the likelihood of which, largely I suspect, is remote—does not diminish the effect setting immediate substantive aside an established paternity declaration. reasons, these I would that the
For hold 1995 amendment is not apply retroactive and does declarations of I that were final to October 1995. would reverse the prior judgment Special Appeals of the Court in No. 136 and City affirm the Court for Baltimore judgments the Circuit in Nos. 117
Judge joins RODOWSKY has authorized me state that he dissenting opinion.