Stephen MARKOV v. Robin MARKOV.
No. 58, Sept. Term, 1999.
Court of Appeals of Maryland.
Aug. 23, 2000.
758 A.2d 75
John J. Ryan (Ryan & Drewniak, P.A., on brief), Annapolis, for Appellee.
RAKER, Judge.
The parties in this appeal, Stephen Markov, Appellant, and Robin Markov, Appellee, were granted an absolute divorce by the Circuit Court for Anne Arundel County, as sought by Appellee, on December 28, 1998, just three days after the twelfth birthday of twin girls who were born during the first year of the couple‘s marriage. Presented for our review is the propriety of the Circuit Court‘s finding that Appellant is equitably estopped from denying paternity of the two girls and its concomitant decision awarding Appellee child support as part of the relief that she requested in her divorce action. In addition to concluding that the Circuit Court incorrectly formulated its estoppel of Appellant on the issue of paternity and improperly issued a ruling as to Appellant‘s non-paternity of the children, we shall hold that Appellant may not be estopped from denying a duty to pay child support until Appellee establishes financial detriment.
Factual Background
Appellant and Appellee were married in Baltimore County on Valentine‘s Day in 1986. A little over ten months later, on Christmas Day of that same year, Appellee gave birth to twin girls, Amanda and Kelly. Despite these seemingly blessed beginnings, the parties’ relationship unfortunately did not prove to be everlastingly blissful. In the summer of 1992, Appellee confessed to having had a short-lived, extramarital liaison with a college student some two weeks after her wedding day.1 This revelation significantly underscored Ap-
Over the next few years, the couple endured periodic episodes of separation, of varying but always short duration, until March of 1997, when the parties separated permanently. Although Appellant and Appellee remained apart since that time, Appellant voluntarily made support payments to Appellee until October of 19972 and continued a paternal relationship with the twin girls, either through actual visitation or telephone calls, until May of 1998, when he stopped all contact with them. Insofar as the parties’ pleadings and testimony on various factual occurrences and conversations conflict, and given that the Circuit Court did not issue specific findings of fact, it is unclear whether either person, for a significant part of their early marriage, was completely sure as to the veracity vel non of Appellant‘s status and representation as the twin girls’ father. In any event, with respect to the later years of their marriage, both parties have believed for a long time, at least since 1992, that Appellant is not the children‘s biological father. The parties steadfastly abide by this position even though, according to the record, no scientific evidence confirming (or refuting) such has ever been produced or even procured.
Procedural Background
In initiating the divorce action, Appellee alleged in her “Complaint for Limited Divorce and Other Relief” that the twin girls “were born to the parties as a result of their marriage.” As part of her demand for relief, Appellee requested that “she be awarded child support pursuant to the Maryland Child Support Guidelines.” In timely fashion, Ap-
Appellee submitted a written answer to Appellant‘s motion stating that “a blood test for paternity is entirely unnecessary ... as paternity is not an issue in this case and it is admitted and established that [Appellant] is not the biological father of the two (2) minor children.”3 In addition, Appellee asserted that Appellant “should be estopped from denying that he has held himself out as the father of the two (2) minor children and that he is the only father that the children have known.”4
On February 2, 1998, the Circuit Court directed as follows:
As [Appellant] requested a hearing, and given that the blood tests could in fact be/or lead to, a final disposition of the claim, or defense to a part of the claims, the matter needs a hearing.
Schedule the Motion for Blood Test before any judge.
Nevertheless, it appears that a hearing on the motion for blood tests was never conducted. By way of a letter to the Circuit Court dated January 30, 1998, Appellant, the party who had requested the hearing, seemingly waived the hearing as unnecessary in stating, “In as much as [Appellee] confirmed that [Appellant] is not the father of her children, there now
The Circuit Court subsequently denied Appellant‘s motion for the blood test, issuing an order dated March 9, 1998 that stated in part:
- That [Appellee, Appellant] and the previously alleged children of the parties are not required to submit to a blood test for purposes of determining paternity in light of Plaintiff‘s Answer admitting and confirming that the Defendant is in fact not the biological father of the two (2) children, namely: Amanda Markov and Kelly Markov;
- That [Appellant] be and is hereby determined and ruled not to be the biological father of the said two (2) children, namely: Amanda Markov and Kelly Markov.
By this order, Appellant‘s non-paternity was thus established for purposes of the case to the satisfaction of the Circuit Court as well as, apparently, to the satisfaction of Appellee, but not to that of Appellant. Despite the Circuit Court‘s declaration that he was not the biological father of the two girls, Appellant renewed his request “[t]hat the Court pass an Order requiring the parties and the alleged children of the marriage to submit to a blood test to determine paternity of the said children.” The litigation then continued as to whether Appellant should be ordered by the court to continue to pay child support.6
Appellant filed a written response denying that he was aware of his non-paternity and that he held himself out as the girls’ father, asserting that his monetary and non-monetary contributions were directed “to the support of the marriage,” as opposed, presumably, to the support of the children, and stating that he could “not attest to what the minor children of [Appellee] believed.” In addition, Appellant highlighted and incorporated the Circuit Court‘s March 9, 1998 order, which he characterized as “finding that [Appellant] is not the biological father” of the two girls. Appellant further asserted that, because he does not fit within the definition of a “parent” under the Child Support statute, he “therefore is not legally responsible for the payment of child support, as a ‘parent.’ ” Finally, Appellant pointed out that Appellee‘s formulation of a child support obligation on his part under a theory of estoppel was made “without providing any legal authority for such an assertion.” In a subsequent filing, Appellant reasserted his demand that a blood test be performed on all the pertinent persons, as noted above.
On May 8, 1998, the Circuit Court ordered that the case be set for hearing “on all open matters.” Accordingly, on December 7, 1998, the Circuit Court held a hearing. The court
On May 3, 1999, the Circuit Court issued an “Earnings Withholding Order,” requiring Appellant to pay Appellee the sum of $697.36 per month or the sum of $162.18 per week for the support of “the parties’ minor children, namely Amanda Markov and Kelly Markov.” Twenty-five days later, on May 28, 1999, Appellant filed a second Notice of Appeal, “from the final judgment entered in this action on May 3, 1999.” Prior to a decision by the Court of Special Appeals, this Court granted a writ of certiorari on its own initiative.
Analysis
It behooves us to address two preliminary matters before reviewing the Circuit Court‘s finding of equitable estoppel in the present case. First, we conclude that it was beyond the authority of the Circuit Court to declare, by way of a preliminary order in Appellee‘s divorce proceeding, that Appellant is not the biological father of the twin girls. With respect to the issue now before this Court, the task of the trial court, as placed upon it by Appellee‘s divorce action and her related claims, concerned only whether Appellant has a duty to pay child support. Under the circumstances that Appellant‘s putative paternity, albeit a question of fact strenuously and repeatedly denied by both parties, was undeniably not the basis upon which Appellee asserted that Appellant had a duty
Indeed, under the centuries-old common law rule first promulgated by Lord Mansfield in 1777, a child born of a married woman is presumed to be the legitimate offspring of her husband. See Goodright v. Moss, 2 Cowp. 591, 592-94, 98 Eng. Rep. 1257, 1258 (1777) (“The law of England is clear that the declarations of a father or mother cannot be admitted to bastardize the issue born after marriage.... As to the time of the birth, the father and mother are the most proper witnesses to prove it. But it is a rule founded in decency, morality, and policy, that they shall not be permitted to say after marriage that they have had no connection, and therefore that the offspring is spurious.“); see also Hale v. State, 175 Md. 319, 323, 2 A.2d 17, 19 (1938) (“[Lord Mansfield‘s Rule] has been adopted in Maryland and in many other states; however, qualifications have been applied to the rule, so rationalizing it that, in this state and elsewhere, the presumption of legitimacy may be overcome when common sense and reason requires that departure.“); Staley v. Staley, 25 Md. App. 99, 102-03, 335 A.2d 114, 117 (1975) (“[Lord Mansfield‘s Rule], as formulated in Maryland, created a presumption that the child of a married woman was the legitimate issue of her husband, which presumption could be rebutted by clear and convincing testimony of a person other than the husband or mother, that the husband did not have intercourse with the mother at a time when conception of the child in question would have been possible.“). The General Assembly has codified this common law rule in two separate statutes as a rebuttable presumption. See
It thus cannot be denied that there existed at the beginning of this case a presumption that Amanda and Kelly Markov are the biological children of Appellant given the undisputed fact that they were both conceived and born during the parties’ marriage. Nevertheless, that presumption was rebutted for purposes of the present case when, two months after filing her initial complaint, Appellee answered Appellant‘s motion requesting a blood test, stipulating that he was not the father. Ever since that time, Appellee has exclusively relied upon the doctrine of equitable estoppel as the singular basis for the alleged duty of Appellant to support the two girls, explicitly eschewing any claim that Appellant owes a duty of support based upon a biological relationship to the twins. It consequently misses the mark for Appellant, or any court hearing the parties’ dispute, to focus upon the paternity vel non of Appellant, whether born of any common law or statutory presumption or to be induced from the result of a scientific test. For purposes of this litigation, paternity is simply not an issue in the present case.
Finally, the Circuit Court‘s declaration of non-paternity in the manner it chose, outside of the statutory scheme for paternity actions found in
Because the present case was not prosecuted as a paternity action, because Appellee, as well as the court, treated the issue of paternity as a matter for stipulated denial rather than as a factual matter needing to be investigated and determined, whether by rebuttable presumption, scientific inquiry, or otherwise, and because there were other competing interests involved in the present case yet perhaps unrepresented, namely, those of the twin girls, the court‘s declaration of non-paternity was error. We therefore shall direct the Circuit Court to vacate that portion of its March 9, 1998 order declaring that Appellant is not the biological father of Amanda and Kelly Markov.8 Cf. In re Adoption/Guardianship No. 10935, 342 Md. 615, 631, 679 A.2d 530, 537 (1996) (holding that “the only dispute in this case relates to a matter which was not properly an issue, namely the duty of support” and modifying the lower court‘s order “to make it clear that the order does not represent any adjudication whatsoever with respect to the duty of support“).
The appropriate contours for a trial court‘s finding of equitable estoppel in a child support action have been set out in Knill. See id. at 536, 510 A.2d at 550. This Court, after reiterating that the essential elements of equitable estoppel are ” ‘voluntary conduct’ or representation, reliance, and detriment,” id. at 535, 510 A.2d at 550, held that the type of detriment that must be established in order to give rise to equitable estoppel in an action for child support is a financial loss. See id. at 538, 510 A.2d at 552. Quite importantly, this Court reiterated in Travelers v. Nationwide, 244 Md. 401, 224 A.2d 285 (1966), that “[w]e have repeatedly stated that whether or not an estoppel exists is a question of fact to be determined in each case.” Id. at 414, 224 A.2d at 292 (emphasis added) (citing Gould v. Transamerican Associates, 224 Md. 285, 297, 167 A.2d 905, 911 (1961); Liberty Mut. Ins. Co. v. American Auto. Ins. Co., 220 Md. 497, 501, 154 A.2d 826 (1959); and cases cited therein).
Having fully reviewed the record, we find that sufficient evidence was presented to the Circuit Court to support the conclusion that Appellee and her twin daughters reasonably relied upon Appellant‘s conduct and verbal representations that he would provide for the support of the girls for as long as necessary.10 In his deposition, Appellant indicated that he suspected from the time that he was informed of Appellee‘s pregnancy that he was not the responsible party and that, by the time that the twin girls were born, he was convinced that he was not their biological father. Even so, Appellant admitted that he led others to believe that the doctor who had performed his vasectomy had confirmed that he was capable of siring the children because one of the vas had reconnected. Appellee testified that, shortly after she announced her pregnancy, Appellant told her the same, lead-
Four-and-a-half to five-and-a-half years of the parties’ living together as the married parents of the twin girls passed before the possibility once again arose—and, according to the parties, the permanent realization set in—that Appellant was not the girls’ biological father. It was then that Appellant confronted Appellee with information that he had learned from his sister as to the dubiousness of his paternity of the two girls. During the ensuing conversation, Appellee confessed that she had been involved in the extramarital relationship shortly after the wedding, and Appellant revealed that his rendition of a reconnection was mere ruse. Moreover, Appellee testified that, during this telling conversation, Appellant stated that “he had always known that he was not [the girls‘] father, and that he intended to raise these children as his own.” Appellee also testified that the two parties at that point discussed adoption for the one and only time but that Appellant assured her that no adoption was required because he intended to raise the girls as his own, and that all that an adoption would entail was an “unnecessary legal fee.”
Further evidence was presented that, during the successive years, up until October of 1997, despite the parties’ periodic separations and reconciliations, Appellant continued to provide for the support of the two girls even during his absences. In addition, he continuously insisted that he desired to treat and raise the twins as if they were his biological children. In fact, testified Appellee, on the occasion of “each and every” separation save the last, permanent one, she offered Appellant the opportunity to “tell the girls the truth” and to “walk away as their biological father.” Appellant “remained adamant,” however, insisting “that he did not want the children to know any
On cross-examination, Appellee repeatedly denied that Appellant encouraged her during their marriage to “go after [the biological father] for child support.” She stated that the first time he mentioned taking such action did not occur until October of 1997. When pressed as to why she never searched on her own for the alleged biological father, Steven Mayo, in order to obtain child support for the girls from him, Appellee responded:
Each time we separated, we talked extensively about whether or not [Appellant] would continue to be their father. I gave him ample opportunity over and over again to back down. He is the one that insisted I not find the biological father. He is the one that insisted. He continued the role that he portrayed.
Finally, when asked why she did not pursue Mr. Mayo even after it became “crystal clear” to her that Appellant could not be the girls’ father, on account of his revelation that his vasectomy had not reversed and that he “still was sterile,” Appellee answered once again that she “did not at the request of [her] husband.”
The evidence was insufficient, however, under the standard we set out in Knill, to establish the financial detriment required to give rise to equitable estoppel in an action for child support. See id. at 538, 510 A.2d at 552. Although the Circuit Court expressed “extreme doubt that [the biological father] could be located at this period of time,” such doubt is not supported by the record in this case in light of the facts known to the parties and given the breadth of information available through today‘s technology. We therefore conclude that, under the circumstances of the present case, the trial court‘s finding of fact as to the inability to locate the presumed natural father is untenable.
The trial judge explained that “Mrs. Markov knew the name of her lover, but is not sure it was correct. She went to where he lived for the assignation, but was too drunk to remember the number. She believes he was a student at University of Maryland Baltimore Campus.” It also seems that the court based its conclusion in part upon the mere passage of time as an insurmountable impediment to locating the putative biological father, Steven Mayo.
To be sure, there is some doubt as to whether the twin girls’ supposed natural father can be located for purposes of initiating a paternity/child support proceeding against him. The existence of such abstract uncertainty, however, cannot suffice to establish as a matter of fact the financial detriment prerequisite to a finding of equitable estoppel with respect to a purported child support obligation on the part of a nonbiological parent. Before such an obligation may justifiably be
There simply has been no satisfactory proffer by Appellee, or other indication, of any effort to locate the twins’ presumed biological father. In fact, Appellee concedes that she “never even tried to learn the identity of the twins’ putative father, or to contact him.” Brief for Appellee at 7. Based upon representations made by either or both of the parties, Appellee is aware of the man‘s name or possible name, his possible affiliation with the University of Maryland at Baltimore, the general whereabouts of his residence in Baltimore at the time of Appellees‘s encounter with him, and perhaps even the specific time period of their encounter. Yet, none of these leads seems to have been investigated, with reliance instead upon the facile assertion that these leads do not seem promising. Consequently, we shall order that the Circuit Court‘s finding of equitable estoppel and its subsequent judgment awarding Appellee child support be vacated.
In the interests of judicial economy, a remand is appropriate. In Jessica G. v. Hector M., 337 Md. 388, 653 A.2d 922, (1995), this Court held, in accordance with the pellucid language of
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED IN PART. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE DIVIDED EQUALLY.
BELL, C.J., concurs in the judgment only.
ELDRIDGE, J., dissents and files opinion.
ELDRIDGE, Judge, dissenting:
Although there may be good reasons for requiring further circuit court proceedings in this case, I cannot agree with the Court‘s opinion which reaffirms Knill v. Knill, 306 Md. 527, 510 A.2d 546 (1986), and with the Court‘s judgment which requires further proceedings in accordance with its opinion. I continue to adhere to the principles set forth in Chief Judge Murphy‘s dissent in Knill v. Knill, supra, 306 Md. at 539-554, 510 A.2d at 552-560, which was joined by Judge Smith and myself.