Stephen SIEGLEIN v. Laura SCHMIDT
No. 76, Sept. Term, 2015
Court of Appeals of Maryland
May 20, 2016
136 A.3d 751 | 447 Md. 647
Courtney J. Hagermann (SARC Legal Services Program, Bel Air, MD), on brief, for Respondent.
BATTAGLIA, J.
The primary issue we address in the present case is whether the use of the term “artificial insemination” in Section 1-206(b) of the Estates & Trusts Article of the Maryland Code1 encompasses only a specific procreation technique of artificial insemination or whether the term more broadly encompasses any methodology wherein human reproduction is achieved by artificial means. The issue is queued up in this case, because Lаura Schmidt, Respondent, wife of Stephen Sieglein, Petitioner, delivered a child through in vitro fertilization (IVF)2 using donated sperm.
Mr. Sieglein, who the Circuit Court found to be the father of the child, was also determined to have voluntarily impoverished himself with respect to child support, as well as had
* Battaglia, J., now retired, participated in the hearing and conference of this case while an active member of this court; after being recalled pursuant to the Constitution, Article IV, Section 3A, she also participated in the decision and adoption of this opinion.
- Whether the “plain meaning” of
Md.Code Ann. ‘ET’ § 1-206(b) can be interpreted to include a case of “in vitro” fertilization from a donated egg and donated sperm, as a result of which Petitioner has been declared a “parent” of the child and thereby liable for child support, even though the child has no genetic connection to either of the parties? - Whether the “plain meaning” of
Md.Code Ann. ‘FL’ § 1-203(a)(2) can be interpreted to sustain a permanent injunction against Petitioner on the basis of “harassment“? - Whether the long settled meaning of “voluntary impoverishment” has been ignored by the decisions of the Cоurts below?
Seiglein v. Schmidt, 445 Md. 487, 128 A.3d 51 (2015).
We shall hold that the term “artificial insemination” in
The facts of this case are, for the most part, undisputed. Stephen Sieglein and Laura Schmidt were married in 2008 in Havre de Grace, Maryland and resided together in Abingdon until 2012. Prior to the marriage, Mr. Sieglein had one biological child, an adult, from a previous relationship, as did Ms. Schmidt. After the birth of his child Mr. Sieglein had undergone a vasectomy. Although Ms. Schmidt desired to have another child, Mr. Sieglein refused to have his vasectomy reversed. He did, however, accompany Ms. Schmidt to the Shady Grove Fertility Reproductive Science Center (“Shady Grove“) as well as support the process of obtaining medical assistance to conceive a child.
Both Ms. Schmidt and Mr. Sieglein signed an “Assisted Reproduction: In Vitro Fertilization, Intracytoplasmic Sperm Injection, Assisted Hatching, and Embryo Freezing Consent” form in January of 2010. The form required both parties to
I/We have been fully advised of the purpose, risks and benefits of each of the procedures indicated above, as well as Assisted Reproduction generally, and have been informed of the available alternatives and risks and benefits of such alternatives. This information has been supplemented by
my/our consultation with my/our medical team. I/We have had the opportunity to ask questions and all my/our questions have been answered to my/our satisfaction. I/We have read the Assisted Reproduction document in its entirety and have had ample time to reach my/our decision, free from pressure and coercion, and agree to proceed with my/our participation in Assisted Reproduction services as stated above.
(emphasis added).
A son was born in 2012; his birth certificate listed Ms. Schmidt under the section for the mother‘s name and Mr. Sieglein under the section for the father‘s name. The parties separated shortly thereafter, however, and Ms. Schmidt filed a complaint in the Circuit Court for Harford County for a limited divorce on the grounds of cruelty and vicious conduct against her and her children, as well based upon voluntary separation; she also requested child support. Mr. Sieglein generally denied the allegations of the complaint as well as that he was the father of the boy; he, thereafter, filed a motion requesting that the court determine “whether or not [he was] a ‘parent’ as that term is employed and understood under Maryland law, so as to obligate him under [Ms. Schmidt‘s] claim for child support.”
A hearing on Mr. Sieglein‘s motion and Ms. Schmidt‘s request for child support was held in the fall of 2012. Judge William Carr of the Circuit Court for Harford County issued a memorandum opinion and order in which he found that Mr. Sieglein was the parent of the child and, therefore, was obligated to pay child support:
[T]he Estates and Trusts Article unequivocally states that a child conceived via the artificial insemination of a married woman with the consent of her husband is the legitimate child of both spouses. Additionally,
§ 1-206(b) creates a presumption that a husband consented to the IVF process.* * *
The facts the Defendant brings forth may demonstrate that he did not want to be a parеnt, but they do not rebut the
presumption of consent to the IVF Treatment, and they do not show that he did not consent to creating a child. The Defendant married the Plaintiff in 2008. When the Plaintiff expressed a desire to have a child, the Defendant accompanied her to a fertility clinic to explore the IVF process, and they both signed the consent forms for the IVF treatment. The Defendant remained in the marital home with the Plaintiff throughout the pregnancy, and his name appears on the child‘s birth certificate as the father. * * *
[T]he presumption in
§ 1-206(b) is that the Defendant consented to the artificial insemination process, making the child the legitimate child of the Defendant.... [He] jointly engaged in efforts with the Plaintiff to create a child, and it is in the best interest of the child to receive support and care from both parents.
(internal citations omitted). The court did not, however, determine the amount of the child support.
The parties appeared in December of 2012 before Judge Angela Eaves of the Circuit Court for Harford County for a pendente lite hearing on custody, visitation and child support. Prior to the hearing, Ms. Schmidt filed an amended complaint for limited divorce in which she sought sole legаl custody of the boy, child support and injunctive relief under
During the December 2012 hearing, Mr. Sieglein attempted to re-litigate the issue of parentage and iterated that he did not seek custody or visitation. Judge Eaves, however, de-
I am making a finding that he is voluntarily impoverished, first stating that he is not going to support [the child] in any way; second, from then having other assets and resourcеs at his disposal that he has chosen to use only for his benefit, but not necessarily even in a way that‘s financially prudent. He has a renter that left ... [h]e has that property available. He has a mortgage of $800, but he chooses to then spend $350 a month to live elsewhere ... In this case, also the fact that he took out used funds from the money market account in order to only pay his own living expenses and not pay anything towards the child‘s expenses[.] Even though he could incur a penalty for early withdrawals of the IRA account, he still has some ability there, but he has chosen not to undertake any responsibility whatsoever with respect to this child[.]
Mr. Sieglein‘s potential income became the focal point of the child support calculation.8 In January of 2013 sole physical and legal custody of the boy was granted to Ms. Schmidt, while Mr. Sieglein was ordered to pay monthly child support
Ms. Schmidt was granted an absolute divorce in 2013. A final hearing to determine child support and to address her request for injunctive relief was held in February of 2014. At the hearing, Mr. Sieglein testified that he was a college graduate, had been an employee of Sysco Food Services until resigning in 2012 and was unemployed from mid November 2012 until December of 2013. He acknowledged that he was the former husband of Ms. Schmidt and had recently started working as a driver for a frozen food delivery service. Mr. Sieglein also testified that while unemployed he received unemployment benefits and additional income from a rental property he owned prior to the marriage.9 Mr. Sieglein urged he had not voluntarily impoverished himself, but proffered evidence of his search for employment through copies of forms logging efforts to find work during his period of unemployment. Upon cross-examination, Mr. Sieglein admitted to making 90 contacts during his twelve-month term of unemployment, several of which were repeated. He also testified that he had been employed for eight days in August 2013 as a trainee with Business Machines, but that his position was terminated after he had requested that the company enter a later start date to enable him to continue to receive unemployment because of unpaid training time.
Ms. Schmidt testified in support of her request for a permanent injunction to protect her from physical harm or harassment. She recounted several instances of Mr. Sieglein‘s circling around her, getting in line near her and approaching and intimidating her at the church attended by both of them, in violation of the protective order.
At the conclusion of the hearing, Judge Eaves determined, after considering Mr. Sieglein‘s physical condition, education,
With respect to Ms. Schmidt‘s request for a permanent injunction, the court stated:
[Mr. Sieglein‘s] credibility suffers with this Court. The manner in which he testifies, his ability only to recall events favorable to him in this case and the fact that he is less than honest in his dealings with respect to Ms. Schmidt.... Circling around her when he knows she is present ... There is a protective order in place. Getting in line behind her when you know it is her means that you walk away because there is a protective order in place.
* * *
I do think [Mr. Sieglein] is playing fast and loose with the Court‘s order in this matter and accordingly, I‘m going to order him to stay 75 yards away from [Ms. Schmidt] and the children and to have no contact. No contact means not in person, by telephone, in writing or through third-parties in this case. And that will extend past the duration of the current protective order that is in effect.
Mr. Sieglein appealed to the Court of Special Appeals, which affirmed in a reported opinion, Sieglein v. Schmidt, 224 Md. App. 222, 227, 120 A.3d 790, 793 (2015).10 The court, review-
By enacting ET
§ 1-206(b) , the General Assembly evinced its intention to acknowledge the role of medically assisted, non-traditional conception of a child in establishing a parent‘s rights and obligations.
Id. at 242, 120 A.3d at 802. The court further concluded that the circuit court had not abused its discretion in granting a permanent injunction to Ms. Schmidt nor in finding Mr. Sieglein had voluntarily impoverished himself. Sieglein, 224 Md.App. at 246-52, 120 A.3d at 805-08.
The threshold question before us involves our interpretation of the term “artificial insemination” in
(a) A child born or conceived during a marriage is presumed to be the legitimate child of both spouses. Except as provided in
§ 1-207 of this subtitle, a child born at any time after his parents have participated in a marriage ceremony with each other, even if the marriage is invalid, is presumed to be the legitimate child of both parents.(b) A child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes. Consent of the husband is presumed.
In statutory interpretation, our primary goal is always to discern the legislative purpose, the ends to be accomplished,
or the evils to be remedied by a particular provision, be it statutory, constitutional or part of the Rules. We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that no word, clause, sentence or phrase is rеndered surplusage, superfluous, meaningless or nugatory. Further, an interpretation should be given to the statutory provisions that does not lead to absurd consequences. If the language of the statute is clear and unambiguous, we need not look beyond the statute‘s provisions and our analysis ends. If, however, the language is subject to more than one interpretation, or when the terms are ambiguous when it is part of a larger statutory scheme, it is ambiguous, and we endeavor to resolve that ambiguity by looking to the statute‘s legislative history, case law, statutory purpose, as well as the structure of the statute.
Anderson v. Council of Unit Owners of Gables on Tuckerman Condominium, 404 Md. 560, 571-72, 948 A.2d 11, 18-19 (2008) (internal citations omitted) (internal quotation omitted). Thus, our initial inquiry is whether the term “artificial insemination” in
Mr. Sieglein argues that the term “artificial insemination” has a plain meaning that refers to only one procedure, specifically, that being intrauterine insemination.12 He argues that in vitro fertilization, the procedure utilized in the present case, should be excluded from the definition because it was not a procedure known about in 1969, when the provisions of The term “artificial insemination” is not defined anywhere in the Maryland Annotated Code. Past and present dictionary definitions abound regarding the term, in addition to Merriam-Webster‘s definition and the Magill Medical Guide. The 1961 edition of Webster‘s Third New International Dictionary defined the term as the “introduction of semen into the uterus or oviduct by other than natural means.” Webster‘s Third New International Dictionary Unabridged, 124 (1961). “Inseminate” in 1961 included two definitions; “to sow or sow in” and “to introduce semen into (the female genital tract) by coitus or by other means.” Webster‘s Third New International Dictionary Unabridged, 1168 (1961). Black‘s Medical Dictionary has provided that, “Artificial insemination is the introduction of semen into the vagina by artificial means.” Black‘s Medical Dictionary, 65 (26th ed. 1965). Stedman‘s Medical Dictionary defines “artificial insemination” as the “introduction of semen into the vagina other than by coitus.” Stedman‘s Medical Dictionary, 982 (28th ed. 2007). In 1965, Black‘s Medical Dictionary, 65 (26th ed. 1965), recognized, “There are two forms of artificial insemination: AIH and AID. In AIH ... the semen is оbtained from the husband. In AID ... the semen is obtained from a man other than the woman‘s husband.” See also Ausman & Snyder‘s Medical Library, Lawyer‘s Edition, § 1:32 (1988) (Homologous Insemination refers to the use of the husband‘s sperm while Heterologous Insemination deals with the use of donated sperm). In addition, multiple techniques for introducing the sperm into the woman also have existed; intrafollicular, intraperitoneal, intratubal and intrauterine.13 Rather, by reference to the legislative history of Subsection (b) is new. It is derived from 2-111(b) (UPC). The Commission feels that this addition is desirable in view of the increased use of artificial insemination and the lack of any statute or case law on the subject in Maryland. Second Report of the Governor‘s Commission to Review and Revise the Testamentary Law of Maryland, Article 93 Decedent‘s Estates 8 (Dec. 5, 1968). Although the Report did not define the term “artificial insemination“, its reference to “2-111(b) (UPC)” was to the 1967 draft of the Uniform Probate Code (“Draft UPC“), which proposed language for “Legitimacy; Effect of Illegitimacy on Intestate Succession.” Third Working Draft Uniform Probate Code With Comments, Na- Section 2-111(b) of the Draft UPC provided: Any child conceived following artificial insemination of a married woman with the consent of her husband shall be treated as their child for all purposes of intestate succession; consent of the husband is presumed unless the contrary is shown by clear and convincing evidence. Id. at 70. The Comment to that Section stated that, “[the] section [was] designed to reflect the modern policy toward minimizing illegitimacy and its impact on inheritance rights, but with safeguards against abuse.” Id. at 71. The Governor‘s Commission rewrote Section 2-11(b) using “indigenous” Maryland language, but closely followed the ideas expressed. The Uniform Probate Council, Maryland Follows Uniform Probate Code, 4 Real Prop. Prob. & Tr. J. 253 (1969). By 1967, concern about the implications of the use of donated sperm in artificial insemination had arisen from a growing awareness that donated sperm separated the husband from the child, biologically, and raised the specter that the child could be regarded as illegitimate, as well as the wife as an adulteress.15 See Allen D. Holloway, Artificial Insemination: An Examination of the Legal Aspects, 43 A.B.A.J. 1089, 1090 (1957) (“The second type of artificial insemination—using the semen of a donor—is the one which poses the grave questions.“). One of the “grave questions” was whether the injection of a third-party donor‘s semen into a married woman could be Adultery, and the injection of “bad blood” into the family, uprooted the long-held presumption that a child born during the marriage was legitimate, as the biologic offspring of the wife and her husband. See C. Thomas Dienes, Artificial Donor Insemination: Perspectives on Legal and Social Change, 54 Iowa L. Rev. 253, 279 (1968) (“It is universally recognized that a child born in wedlock is presumed legitimate.“); Smith, 67 Mich. L.Rev. at 140 (“The presumption of a child‘s legitimacy is grounded in the English common-law concept that an оffspring is deemed legitimate.“). The presumption of legitimacy would be overcome, however, by a showing that the husband was impotent or absent at a time when conception could have occurred. Smith, 67 Mich. L.Rev. at 140. Proof that the wife was impregnated by artificial insemination with donor sperm, then, could overcome the presumption of legitimacy of a child born during a marriage. Holloway, 43 A.B.A.J. at 1092. Commentary also included reflection on the use of donated sperm in artificial insemination, raising again the issue of adultery and questions regarding consent by a husband in order to legitimize the child and facilitate his or her inheritance rights. See Robert T. Jewett, The Legal Consequences of Artificial Insemination in New York, 19 Syracuse L.Rev. 1009, 1010 (1968) (“It is the introduction of the semen of a third party donor in the AID process which creates most of the legal difficulties[.]“). One commentator, noting that “[t]he trend [in 1965] [was] to narrow rather than enlarge the area in which children are labeled illegitimate[,]” argued that children born through artificial insemination with donated sperm and the consent of the husband should not be “stigmatized” with illegitimacy, particularly if the husband‘s name was registered as the father. Elliott L. Biskind, Legitimacy of Children Born by Artificial Insemination, 5 J. Fam. L. 39, 43 (1965). Others advocated for the introduction of a statutory solution to address the “problem [] raised by the expanding utilization and acceptance of artificial insemination“. Harry D. Krause, Bringing the Bastard into the Great Society—A Proposed Uniform Act on Legitimacy, 44 Tex. L.Rev. 829, 845 (1966); As artificial reproduction developed and expanded to include in vitro fertilization, the same concerns regarding the use of donated sperm continued to be raised in the literature. See Emily McAllister, Defining the Parent-Child Relationship in an Age of Reproductive Technology” Implications for Inheritance, 29 Real Prop. Prob. & Tr. J. 55 (1994); Helene S. Shapo, Matters of Life and Death: Inheritance Consequences of Reproductive Technologies, 25 Hofstra L.Rev. 1093 (1997). In IVF, the sperm is combined with mature eggs in a lab, and one or more fertilized eggs (embryos) may be introduced into the woman‘s uterus a few days later. American Congress of Obstetricians and Gynecologists, http://www.acog.org/Patients/FAQs/Treating-Infertility (https://perma.cc/5KEG-Y6GQ). As a result, we construe Mr. Sieglein further asserts, in support of his position that he is not the legal parent of the child and should not be obligated to pay child support, that In re Roberto d.B., 399 Md. 267, 923 A.2d 115 (2007), established that the proper test to be applied in determining parentage is whether the parent is genetically related to the child, which he is not. Mr. Sieglein also points to our holding in Knill v. Knill, 306 Md. 527, 510 A.2d 546 (1986), in which we determined that a husband, whose wife had had a child by another man during the marriage yet treated the child as his own for twelve years, was not estopped from denying a duty to support the child. In re Roberto d.B. involved a situation in which an unmarried father provided sperm that was combined with donated eggs and implanted into a gestational surrogate who was not the donor of the eggs nor married to the father. The process resulted in the birth of twins, and the surrogate‘s name was entered on the children‘s birth certificates. Neither the father nor the gestational surrogate wanted her name to appear on the birth certificate as the child‘s mother, as no relationship was intended between the children and the surrogate. The circuit court ruled that a trial court did not have the power to remove the surrogate‘s name and that it would not be in the children‘s best interests were it to do so. The primary issue before us, then, was whether the gestational surrogate‘s name could be removed from the children‘s birth certificates as mother under (a)(1) Except as provided in paragraph (2) of this subsection, a declaration of paternity in an order is final. (2)(i) A declaration of paternity may be modified or set aside: * * * 2. if a blood or genetic test done in accordance with After establishing that under Maryland law a trial court was, in fact, authorized to order the removal of the mother‘s name from a birth certificate, we permitted the gestational surrogate‘s name to be removed, because we interpreted the statute to “extend the same rights to women and maternity as it applies ... to men and paternity.” Id. at 284, 923 A.2d at 125. Whilе we acknowledged that, based on the language of the statute,17 “the Legislature did not contemplate anything outside of traditional childbirth ... [and] [t]he statute does not provide for ... a situation where children are conceived using an assisted reproductive technology,” id. at 279, 923 A.2d at 122, we “construed the statute to apply equally to both males and females.” Id. at 283, 923 A.2d at 124-25. As such, under the applicable terms of the statute, the gestational While Mr. Sieglein also relies on Knill, 306 Md. at 527, 510 A.2d at 546, in which a husband denied, during a divorce action, his obligation to support a boy, born during the marriage, but who was not his biologic child. The husband provided financial support for the boy until his wife sued for divorce. At the divorce heаring, the husband argued that he had no obligation to support the boy, because his relationship with the child was solely based on a voluntary act on his part, rather than a legal obligation. The trial court concluded that the husband was equitably estopped from denying his obligation to support the child. The husband appealed, and we issued a writ of certiorari before argument in the Court of Special Appeals. We noted that We concluded that the evidence presented at trial did not support the inference that the wife had foregone her opportunity to seek child support from the natural father as a result of the husband‘s voluntary support and that the wife could still bring a paternity action against the natural father. Thus, “we believe[d] that [the husband] should not be penalized for his conduct under the circumstances as described[, and] ... [held] In the present case, the boy born during Mr. Sieglein‘s and Ms. Schmidt‘s marriage resulted from an artificial insemination procedure to which Mr. Sieglein consented. Unlike Knill, where the child was born as a result of the wife‘s infidelity and voluntarily supported by the husband, Mr. Sieglein consented to the use of artificial insemination and, under Because we have determined that Mr. Sieglein is the father of the child under We had acknowledged the importance of earning capacity two decades earlier in Pet v. Pet, 238 Md. 492, 497, 209 A.2d 572, 574 (1965), in an alimony context: “The rule of this Cоurt ... is that an award of alimony is to be based on the earning capacity and financial worth of the husband at the time of trial.” We expanded the notion to child support payments in Chalkley v. Chalkley, 240 Md. 743, 744, 215 A.2d 807, 808 (1966) (“Ordinarily, the awarding of alimony and support should be based on the earning capacity and financial worth of the husband and father and the circumstances of the wife and children as of the time of the award.“). As a seminal matter, therefore, inclusion of the term “voluntarily impoverished” anticipated voluntary unemployment or underemployment. Within a few years after the enactment of the statute, the Court of Special Appeals, in Goldberger v. Goldberger, 96 Md.App. 313, 327, 624 A.2d 1328, 1335 (1993), cert. denied, 332 Md. 453, 632 A.2d 150 (1993), recognized voluntary impoverishment as rendering oneself voluntarily without adequate resources: [A] parent shall be considered “voluntarily impoverished” whenever the parent has made the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources. The court‘s characterization of voluntary impoverishment was based partly on the fact that it recognized that the issue had arisen most often when “a parent reduce[d] his or her level of income to avoid paying support by quitting, retiring, or changing jobs.” Id. at 326, 624 A.2d at 1335. The traditional notion of voluntary impoverishment, thus, contemplated whether a parent had intentionally acted to reduce their income in an effort to minimize, or eliminate, their child support obligation. Id. at 327, 624 A.2d at 1335. To aid in its determination of whether a parent had freely and voluntary impoverished himself, the intermediate appellate court in Goldberger reiterated the factors to be considered: In Wills v. Jones, 340 Md. 480, 485, 667 A.2d 331, 333 (1995), we recognized that “[t]he meaning of ‘voluntary impoverishment’ [in In determining whether a parent is voluntarily impoverished, the question is whether a parent‘s impoverishment is voluntary, not whether the parent has voluntarily avoided paying child support. The parent‘s intention regarding support payments, therefore, is irrelevant. It is true that parents who impoverish themselves “with the intention of avoiding child support obligations” are voluntarily impoverished. But, as the court recognized in Goldberger ... a parent who has become impoverished by choice is “voluntarily impoverished” regardless of the parent‘s intent regarding his or her child support obligations. 340 Md. at 494, 667 A.2d at 338 (internal citations omitted) (emphasis omitted). [T]he Court has to consider the individual‘s current physical condition, prospective level of education, the timing of any change in employment for financial circumstances relative to the proceedings, the relationship of the parties prior to the proceedings, efforts to find an retain employment, efforts to secure retraining, if that is needed, whether they have ever withheld support, any relevant past work history, the areas in which the parties live, and the status of the job market and any other considerations presented by either party. Judge Eaves specifically found that Mr. Sieglein was in good health and that nothing precluded him from being employed. The Judge also noted that he had sufficient education to work in a managerial capacity. Characterizing the relationship between Mr. Sieglein and Ms. Schmidt as acrimonious, the Judge stated that “[n]either one wants to have anything to do with the other.” Regarding Mr. Sieglein‘s efforts to find and retain employment to the extent he had been employed with Sysco, the Judge concluded that his effort was insufficient. Although he had made efforts at finding employment, Judge Eaves determined that his repetitive contact with the same employers over a short period of time and his attempt to have Business Machines postdate the start of his employment constituted a lack of effort based upon his own actions. The Judge further explained that the area in which the parties lived and the job market overall were not a problem in this case. Mr. Sieglein‘s work history indicаted that he had been steadily employed for 12 years with Sysco, and the testimony provided no reason for him to have left that position. Based upon its findings, the Circuit Court found Mr. Sieglein to be voluntarily impoverished and imputed an income of $4,052.00 per month, which we affirm. We finally turn to the issue of whether (a) In an action for alimony, annulment, or divorce, an equity court: (1) has all the powers of a court of equity; and (2) may issue an injunction to protect any party to the action from physical harm or harassment. Mr. Sieglein asserts that the circuit court‘s grant of the permanent injunction by its February 2014 order was improper based on the evidence presented, even when taken in a light most favorable to Ms. Schmidt and, therefore, was an abuse of the court‘s discretion. He posits that the allegations of harassment made by Ms. Schmidt аmounted only to “bare assertions of unrelated happenstance encounters” and did not meet the requisite threshold for an injunction. In support, Mr. Sieglein points to the Court of Special Appeals‘s opinion in Cote v. Cote, 89 Md.App. 729, 735, 599 A.2d 869, 872 (1992), in which the court affirmed the entry of an interlocutory injunction barring the husband from the marital home, based on the risk of “irreparable injury” to the wife should the injunction be denied, a risk Mr. Sieglein contends is not present in this case. Mr. Sieglein bolsters his argument against the permanent injunction by referring to a comment included in Cote to the effect that: “The trial judge stated that the injunction would ‘remain in full force and effect until further Order of the Court.’ Therein lies our concern. This injunction has been in force well over a year and no further order of the court has been forthcoming.” Id. at 739, 599 A.2d at 874. A court of equity sitting in an action for divorce, alimony, or annulment, in addition to exercising all the powers of a court of equity, may issue an injunction to protect any party to the action from physical harm or harassment. Maryland Code (1974, 1977 Supp.). We had occasion to reviеw Section 3-603(b) shortly after it was enacted and the trial court‘s authority to issue an injunction. Winston v. Winston, 290 Md. 641, 431 A.2d 1330 (1981). In Winston, we reversed the trial court‘s denial of an injunction, stating: ... [T]he General Assembly was unambiguously endowing the equity court sitting in divorce, alimony and annulment proceedings with all the general powers normally exercised by that court in other matters. In addition, the enactment specifies that this authority is extended so as to encompass the right to enjoin a party in domestic relations proceedings from physically harming or harassing another party. Id. at 648, 431 A.2d at 1333. Chapter 296 of the 1984 Maryland Laws recodified Section 3-603(b) as In Galloway v. State, 365 Md. 599, 627-28, 781 A.2d 851, 867-68 (2001), we defined harassment as: We agree with the reasoning of the Court of Special Appeals in Caldwell v. State, supra, and with those states finding that the terms “annoy,” “alarm,” and “harass” are commonly understood by ordinary people and, as such, provide fair notice to potential offenders and adequate guidance for enforcement. The definition of “annoy” is “to disturb or irritate especially by repeated acts.” An alternative definition for annoy is “to harass especially by quick brief attacks.” The definition of alarm is “to strike with fear.” The applicable definition of harass is “to annoy persistently.” (internal citations omitted). Circling around her when he knows that she is present means avoid her. There is a protective order in place. Getting in line behind her when you know it is her means that you walk away because there is a protective order in place.... [T]he reasonableness of fear is to be determined from the perspective of the person experiencing it. And that is Ms. Schmidt in this case.... There isn‘t any reason Mr. Sieglein needs to be in the presence of Ms. Schmidt in the direct, immediate or proximate presence of Ms. Schmidt and the children in this case. That harassment could constitute irreparable injury in the present case is supported by the findings. Cf. El Bey v. Moorish Science Temple of America, Inc., 362 Md. 339, 355-56, 765 A.2d 132, 140-141 (2001). Our conclusion that the trial court judge did not abuse her discretion in entering a permanent injunction against Mr. Sieglein for harassment is supported by Cote, in which the Court of Special Appeals reviewed a circuit court‘s issuance of an injunction pursuant to The Court of Special Appeals, citing two elements necessary for injunctive relief—irreparable injury from a denial of the injunction and retention of the court‘s ability to grant relief in the divorce action—determined that “a risk of irreparable injury that could occur, namely, future physical abuse of and WATTS, J., concurs. WATTS, J., concurring. Respectfully, I concur.1 I would affirm the Court of Special Appeals‘s determination that the child is the legitimate child of Stephen Sieglein (“Sieglein“), Petitioner, and Laura Schmidt (“Schmidt“), Respondent, and that both Sieglein and Schmidt are the child‘s legal parents. I would not hold, however, that As an initial matter, I would conclude that, because this case involves a child who was born during Sieglein‘s and Schmidt‘s marriage, the statutes in Subtitle 10 (Paternity Proceedings) of Title 5 (Children) of the Family Law Article do not apply. As Rather, because the child was born during the marriage, (a) Marriage of parents.—A child born or conceived during a marriage is presumed to be the legitimate child of both spouses. Except as provided in (b) Artificial insemination.—A child conceived by artificial insemination of a married woman with the сonsent of her husband is the legitimate child of both of them for all purposes. Consent of the husband is presumed. Thus, Importantly, in my view, Sieglein has not presented any evidence to rebut To conclude otherwise—that a child who is conceived during a marriage and with the consent of both parties through IVF using a donated egg and donated sperm is not presumed to be the legitimate child of both spouses—would be contrary to the statutory presumption of legitimacy. This simply could not have been the General Assembly‘s intent. Rather, by enacting For the above reasons, respectfully, I concur.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.
Notes
(c)(1) There is a rebuttable presumption that the child is the legitimate child of the man to whom its mother was married at the time of conception.
(b)(1) Except as provided in paragraph (2) of this subsection, if a parent is voluntarily impoverished, child support may be calculated based on a determination of potential income.
(2) A determination of potential income may not be made for a parent who:
(i) is unable to work because of a physical or mental disability; or
(ii) is caring for a child under the age of 2 years for whom the parents are jointly and severally responsible.