Ashley v. Mattingly

HOLLANDER, J. In this appeal, we must determine whether the Circuit Court for Wicomico County erred when, many years after the parties’ divorce, it refused to permit a challenge to paternity with respect to a child born during the parties’ brief marriage. Patrick Winfred Ashley, appellant, and Michelle Marie Mat-tingly, appellee, were married on April 18, 1990. Some eight months later, on December 11, 1990, Chase Patrick Ashley was born. Shortly thereafter, on January 18,1991, the parties separated.

The Circuit Court for Wicomico County issued a ⁴⁰ Judgment of Absolute Divorce on August 20, 1992, by which appellee was awarded sole custody of Chase, appellant was awarded visitation, and he was ordered to pay child support. More than a decade later, in 2004, appellant began to doubt his paternity of Chase. He obtained DNA testing, which established that he is not Chase’s biological father. Consequently, in December of 2004, appellant filed a “Complaint for Discontinuance of Child Support and Request for Paternity Testing.” 1 Among other things, appellant sought a judicial declaration that he is not Chase’s biological father, and asked the court to terminate his child support obligation.

After the circuit court granted appellee’s motion to dismiss, this appeal followed. Appellant poses the following questions: 1. Did the trial judge commit error in dismissing appellant’s amended complaint to set aside and partially vacate the judgment of absolute divorce? 2. Did the trial judge commit error in dismissing Steven Mark Reid as a party defendant?

For the reasons that follow, we shall vacate and remand. FACTUAL AND PROCEDURAL SUMMARY 2 Prior to the parties’ marriage, appellee dated Steven Mark Reid. When that relationship ended, appellant and appellee ⁴¹ renewed their previous relationship. As a condition of his marriage to appellee, appellant asked appellee to take a pregnancy test.

According to appellant, appellee subsequently “represented to Mr. Ashley that the results of the test indicated that she was not pregnant.” Thereafter, the parties were married on April 18, 1990. 3 Chase was born some eight months later, on December 11, 1990. The following month, when Chase was just a month old, the parties separated. Appellant filed a “Complaint for Absolute Divorce” on April 29, 1992, in which he alleged, inter alia, that the parties “had a child by the name of Chase Patrick Ashley____” He requested “reasonable visitation....” In her answer, appellee asserted: “That as a result of the marriage, [the parties] had a child by the name of Chase Patrick Ashley, born December 11, 1990.” In her “Counter-Complaint,” filed on July 15, 1992, appellee averred: “That one child was born to the parties as a result of their marriage; to wit, Chase Patrick Ashley, d.o.b. 12/11/90.” The court (Truitt, J.) held a divorce hearing on August 11, 1992. 4 Appellant testified that one child, Chase, was “born as a result of the marriage.” By “Judgment of Absolute Divorce” dated August 20, 1992, the trial court awarded sole custody of Chase, “the minor child of the parties,” to appellee, and granted reasonable visitation to appellant. The court also ordered appellant to pay $100 per week in child support.

At some point after the parties’ divorce, appellee and Chase ⁴² relocated to Virginia, and appellant only had “sporadic” visitation with Chase. In the spring of 2004, appellant “came in visual contact” with Reid and, “based on his observation, did not believe he (Mr. Ashley) was the biological father” of Chase. Appellant and Chase underwent independent DNA testing in April of 2004. The results, attached to appellant’s complaint, revealed that there was a 0.0% probability that appellant is Chase’s biological father.

As a result of what transpired, on December 1, 2004, appellant filed a “Complaint for Discontinuance of Child Support and Request for Paternity Testing.” In addition to the facts previously set forth, appellant claimed that appellee led appellant to believe that Chase was born to the parties. He averred: [Appellant] is now informed and believes and on that basis alleges that Defendant Mother and former spouse was pregnant with the minor child prior to their marriage and, Defendant Mother represented to Plaintiff that she was not pregnant prior to the marriage and further, upon the representation, Plaintiff and Defendant were married. Further, appellant alleged that in September 2004 he told Ms. Mattingly about the results of the DNA testing and expressed his belief, based on Ms. Mattingly’s prior relationship with Mr. Reid, that Mr. Reid is Chase’s biological father. According to appellant, Ms. Mattingly asked, “should we tell [Chase] or not,” and also asked Mr. Ashley if he thought Chase would hate her when he found out.

Appellant asked the court, inter alia, to order paternity testing; declare that appellant is not the natural father of the minor child; and relieve appellant from his obligation to pay child support. Appellee filed a motion to dismiss on March 18, 2005, claiming the complaint failed to state a cause of action upon which relief could be granted. On May 4, 2005, appellant filed “Plaintiffs Motion to Add Party Defendant,” seeking to add Reid as a defendant. On May 9, 2005, after a hearing, the ⁴³ court (Beckstead, J.) granted appellee’s motion to dismiss, with ten days leave to amend.

Accordingly, on May 16, 2005, appellant filed an “Amended Complaint to Set Aside and Partially Vacate the Judgment of Absolute Divorce and Request for Paternity Testing.” In his amended suit, appellant alleged, in part: 11. That [appellee] knew and fraudulently did not inform [appellant] that she was in fact pregnant prior to the marriage, knowing she was in fact pregnant and fraudulently misrepresented to [appellant] that she was not pregnant at the time of her marriage to [appellant], and that he was not the minor child’s biological child when the minor child was born. 12. That [appellant] only assumed that he was the father of the minor child who was born after the marriage of the [appellant] and [appellee], and did not know at the time that he was not the minor child’s biological father. 13. That there has been no previous declaration of paternity attributed to [appellant]. 14.

That [appellant] has been informed by the minor child that [appellee] has informed the minor child of the nature of the pending proceeding. Among his requests for relief, appellant asked the court to require the parties and Chase to undergo blood tests in accordance with § 5-1029 of the Family Law Article of the Maryland Code and, upon receipt of the test results, to exercise its revisory power in accordance with Rule 2-535(b) of the Maryland Rules of Court and pass an Order setting aside and vacating, in part, the Judgment of Absolute Divorce, rebutting the presumption that [appellant] is the biological father of a child born during the parties’ marriage and obligation for payment of child support. Appellee again moved to dismiss, and also opposed appellant’s motion to add Reid as a defendant. The court (Jackson, J.) filed an Order on May 25, 2005, adding Reid as a party defendant.

Thereafter, on June 8, 2005, appellee filed a “Motion to Strike Order Adding Party Defendant.” ⁴⁴ Following a motions hearing on August 19, 2005, the circuit court (Davis, J.) orally granted appellee’s motion to dismiss the amended complaint, as well as the motion to strike the order adding Reid as a party defendant. In particular, the court determined that the “paternity provision” of the Family Law Article applies to “children bom out of wedlock,” and Chase was not bom out of wedlock. Therefore, the court concluded that the statute was not applicable. The court stated: Well, we are here on, I guess, an Amended Complaint by Mr. Ashley to set aside and partially vacate the provisions of a divorce decree that was entered in 1992, and in conjunction with that to request paternity testing.

And the basis in that divorce degree [sic] that was entered contained various provisions regarding Chase Patrick Ashley who was then, I guess, I don’t know exactly how old, a year or two, I guess, and it provided among other things that it was a judge [sic] ordered by consent of the parties that sole custody of the minor child of the parties be awarded to Michelle Ashley, that Patrick Ashley be awarded reasonable visitation and then provided for payment of child support. After discussing the allegations in the suit, the court said: [O]rally, this morning [appellant’s counsel] also added that the Plaintiffs position is that during the course of the 1992 divorce that the defendant had an obligation to disclose to the plaintiff and to the Court that the plaintiff was not the father of the child, biological father of the child, and that failure to disclose, and assuming for purposes of this, that for this motion and ruling that, in fact, Mrs. Mattingly didn’t have a pregnancy test or did not have a pregnancy test that disclosed that she was not pregnant and misrepresented those facts to the plaintiff, that and the failure to correct that mistaken — or that the erroneous representation form the basis for the plaintiff[’]s allegation that fraud was com ⁴⁵ mitted by the defendant during the course of the divorce and that the Divorce Order is a result of that fraud. The court continued: Now, rule 2-535 provides basically that the Court can exert advisory [sic] power and control over any Judgment within 30 days after the entry of the Judgment except that on the motion of any party at any time, the Court may exercise [its] advisory [sic] power and control over the Judgment in case of fraud, mistake or irregularity. Now, fraud in this context does not necessarily have — it does not have as broad a meaning as would be applicable in some other context.

And the issue here with respect to fraud is whether assuming that Mrs. Mattingly was untruthful with those representations, and she intended to deceive and to have Mr. Ashley rely on those representations, and assuming further that that [sic] was fraudulent, that does not necessarily constitute fraud within the meaning of this particular rule because the Maryland Appellate Courts have established that the fraud which is necessary in order to seek relief, it must prove extrinsic fraud and not intrinsic. It is defined in, I guess, most recently looking at the annotations Manigan (phonetic) versus Burson (phonetic) a 2004 Court of Special Appeals case that says fraud is extrinsic when it actually prevents an adversarial trial but it is intrinsic when it is employed during the course of the hearing which provides a forum for the truth to appear. Basically I think the authorities cited by [appellee’s counsel] are correct in that this “fraud”, I am using the term quotes, assuming that the allegations in the light most favorable to the plaintiff are correct, and that it would constitute fraud are not fraud of the nature that prevents an adversarial trial in the cases which involved actual perjured testimony, an Order based on perjured testimony, not forming the basis for subsequent relief on the grounds of fraud. Certainly, this does not rise to that level.

And if it wasn’t an appropriate basis then, it certainly wouldn’t be in this case. So if we approach it on what ⁴⁶ would be the traditional and generally only basis to look at this which is attempting to revise a Judgment more than 30 days after the Order is entered, or a Judgment is entered, the Plaintiffs motion has to fail. I will just comment with respect to, I asked a question of [appellant’s counsel], but both counsel responded to this. The specific issue was not litigated.

There was no contest as to paternity, and does that make a difference? I guess, in my view it doesn’t. I think that the general rule is that any issue which was raised or could have been raised with respect to a particular matter, the doctrine of res judicata generally precludes that issue from being raised subsequently in another proceeding, and certainly in a divorce proceeding that involves issues of child custody, child support, child visitation, the paternity of that child certainly would be a germane subject that would be a subject that could have been raised and wasn’t. It was resolved based on the review of the actual Order on the basis of, I think, a consent or stipulation of the parties, but I don’t think that the fact that it was not a knock down drag out fight on that issue that resulted in a specific finding of fact by the Court, I don’t think that changes the result, and the only thing that would is whether or not the legislation and the more recent cases such as the cases that counsel had referred to in the paternity case issue makes a difference.

And I guess my conclusion with that is this. The provisions which plaintiff is relying upon are those in the subtitle 10, title 5 of the Family Law Article, that being paternity proceedings, and it is correct that the statement of legislature [sic] policy, the court decisions and the other provisions of that statute make clear to me that it does not relate to a child born in wedlock. In our case, there is a divorce decree which actually makes findings and enters Orders to the effect that there is a child. And so I don’t think that affects or disturbs in any ⁴⁷ way the analysis that as a result of any conclusion I have stated so far as Rule 2-535 is concerned.

And I guess, really, I think this Court today is in much the same position that the Court of Appeals, I guess, it was in the, I guess maybe it was the Tandra S. versus Tyrone W. case where the Court of Appeals said, and I think if I am not confusing which facts go with which case, there was a case that was presented in which the evidence was that the person who was paying child support was definitely not the father. But it hadn’t — the issue had not been raised on an appropriate basis from a timing stand point, and the Court said while it’s obviously harsh under the state of the law as it exists, that is the decision the Court has to make as a result of which the legislature went to work and enacted legislation that would permit the paternity issue to be raised which it subsequently was, and I guess was resolved favorably to the father. The court concluded: As I see the law in this particular case, I think we are, unfortunately for Mr. Ashley, in the same situation. Based on what is proffered it seems clear that he is not the biological father, however, that determination was made in, I guess, 2004 and to gain relief it requires setting aside provisions in the 1992 Divorce Order, and I don’t believe that the state of the law is such that discovering this fact in 2004 provides the necessary factual basis to grant relief under Rule 2-535 to modify an Order that was entered into [in] 1992.

The legislature can change that, but I don’t think that the Court can. So for that reason, I am going to grant the Motion to Dismiss and while doing so, I guess, probably makes moot the motion to — may make moot the Motion to Strike the Order adding Mr. Reed [sic] as a party defendant. So we will tie everything up in a neat bundle, I am going to grant that motion as well. ⁴⁸ A judgment was docketed on September 21, 2005, dismissing the suit without leave to amend. 5 On the same day, appellant noted .an appeal. Thereafter, on September 30, 2005, appellant filed “Plaintiffs Motion to Alter or Amend Judgment and Request for Hearing,” which appellee opposed.

That motion was denied on October 7, 2005. 6 DISCUSSION A. According to appellant, under Maryland Code (1999, 2006 Repl. Vol.), § 5-1006 of the Family Law Article (“F.L.”), a challenge to paternity may be brought at any time before a child’s eighteenth birthday. Moreover, in his view, F.L. § 5-1038(a)(2)(i)2 “permits a paternity judgment to be set aside at any time,” if scientific testing “establishes that the named father is not the biological father of the child.” (Emphasis added.) 7 Relying on Maryland Rule 2-535(b), appellant also argues that the circuit court retained revisory power over the matter because appellee’s conduct constituted “extrinsic fraud.” Appellant recognizes that, “[historically, enrolled judgments could not be reopened for fraud unless there had been no adjudication on the merits.” See Gray v. Gray, 245 Md. 713, 715 , 228 A.2d 441 (1967); Pinkston v. Swift, 231 Md. 346, 351 , 190 A.2d 533 (1963). In his view, however, the issue of parentage was not resolved “on the merits,” because appellee consented to the Judgment. 8 He explains: ⁴⁹ Appellant’s parentage in this case was not determined by a declaration of paternity by the court, but by the fact the minor child involved was born during the brief marriage of Appellant and Appellee.

This factual profile has been a troublesome issue because it involves the preclusive effect of paternity findings in divorce decrees, which are typically findings of nothing more than recitals found in the pleadings that a child or children were born of a marriage, custody was awarded and child support ordered. In this scenario, the child’s paternity is not actually litigated. Appellee counters that the trial court “correctly declined to exercise revisory power over the judgment of divorce” under Rule 2-535(b), because the conduct alleged by appellant does not constitute “extrinsic fraud.” She asserts: Appellant had every opportunity to avail himself of all his legal remedies at the time of the divorce proceeding which he initiated. The Appellee never fraudulently restricted his access to the court or prevented him from getting to court in the first place----The Appellant did not act with ordinary diligence and does not have a meritorious defense to the underlying judgment.

According to appellee, F.L. §§ 5-1001 to 5-1048 apply only to “putative fathers of children born out of wedlock,” and give them “expanded rights in paternity actions.” She maintains, however, that appellant “cannot be a putative father because Mr. Ashley is already Chase’s legitimate father.” Appellee states: The Appellant claims that the expanded rights afforded to putative fathers as the result of the 1995 amendments to the Paternity Act should extend to him as well. Actually, the Paternity [A]ct amendment favors the Appellee, not the Appellant. Presumably, the legislature amended the Paternity Act to avoid sometimes harsh results against putative fathers in cases involving children born out of wedlock. However, the legislature did not similarly amend the Estates and Trust Article to afford such rights to legitimate fathers of children born during wedlock.

Nor did the ⁵⁰ legislature amend the Paternity Act to apply to children born during wedlock. The legislature certainly could have amended either provision but chose not to in 1995 and has chosen not to in the intervening eleven years. Further, appellee relies on Md.Code (2001, 2006 Supp.), § l-206(a) of the Estates and Trusts Article (“E.T.”), which provides: A child born or conceived during a marriage is presumed to be the legitimate child of both spouses. Except as provided in § 1-207, 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.

Based on E.T. § l-206(a), appellee argues that, “[e]ven if this Court were to find that extrinsic fraud existed and the Appellant acted with ordinary diligence, the trial court correctly dismissed his claim____” She insists that appellant “would not be entitled to relief in this case,” because Chase “was born during the marriage while the parties were living as husband and wife.” Appellee concludes: If the Appellant’s request is granted, paternity testing would become almost mandatory in every divorce case involving minor children. Husbands would seek to disown their children (as is the case here). Wives would seek to strip husbands of their custodial and visitation rights. It could even be considered malpractice if an attorney failed to insist on paternity testing in every case.

For these reasons and the reasons set forth in Evans [v. Wilson, 382 Md. 614 , 856 A.2d 679 (2004),] the judgment of the lower court must be affirmed. B. Under the Maryland Code, paternity may be established pursuant to the Family Law Article or the Estates and Trusts Article. Turner v. Whisted, 327 Md. 106, 112-13 , 607 A.2d 935 (1992); Toft v. State of Nevada, 108 Md.App. 206, 224 , 671 ⁵¹ A.2d 99 (1996). In particular, two provisions in the Maryland Code relate to paternity determinations.

As to children born out of wedlock, the statutory provisions governing “Paternity Proceedings” are set forth in F.L. §§ 5-1001 to 5-1048 (hereinafter, the “Paternity Act”). With regard to children bom during the marriage, E.T. § l-206(a) provides: “A child bom or conceived during a marriage is presumed to be the legitimate child of both spouses.” This means that a husband is presumed to be the father of a child born to his wife during their marriage. The Paternity Act is largely aimed at addressing putative fathers in regard to children born outside of marriage. See Stubbs v. Colandrea, 154 Md.App. 673, 688 , 841 A.2d 361 (2004); Williams v. Williams, 18 Md.App. 353, 356 , 306 A.2d 564 (1973) (‘We think it is clear from the provisions of the Paternity Act ... that it was the legislative intent to make it the exclusive basis in this State for enforcing the obligation of a putative father to support his illegitimate child”) (emphasis added). 9 F.L. § 5-1002, which sets forth the purpose of the Paternity Act, makes clear that it applies only when a child is bom outside of marriage: § 5-1002.

Legislative Policy. (a) In general. — The General Assembly finds that: (1) this State has a duty to improve the deprived social and economic status of children bom out of wedlock; and (2) the policies and procedures in this subtitle are socially necessary and desirable. (b) Purpose. — The purpose of this subtitle is: (1) to promote the general welfare and best interests of children bom out of wedlock by securing for them, as nearly as practicable, the same rights to support, care, and education as children born in wedlock; ⁵² (2) to impose on the mothers and fathers of children bom out of wedlock the basic obligations and responsibilities of parenthood; and (3) to simplify the procedures for determining paternity, custody, guardianship, and responsibility for the support of children bom out of wedlock. (c) Establishment of paternity. — Nothing in this subtitle may be construed to limit the right of a putative father to file a complaint to establish his paternity of a child.

(Emphasis added.) F.L. § 5-1027(c) is also relevant. It provides: § 5-1027. Trial to be held after birth of child — Burden of proof; presumptions; testimony. (c) Presumption. — (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.

(2) The presumption set forth in this subsection may be rebutted by the testimony of a person other than the mother or her husband. (3) If the court determines that the presumption set forth in this subsection has been rebutted by testimony of a person other than the mother or her husband, it is not necessary to establish nonaccess of the husband to rebut the presumption set forth in this subsection.. (4) If the court determines that the presumption set forth in this subsection has been rebutted by testimony of a person other than the mother or her husband, both the mother and her husband are competent to testify as to the nonaccess of the husband at the time of conception____ Under F.L. § 5-1006(a), a proceeding to establish paternity may be initiated at any time prior to the child’s eighteenth birthday. F.L. § 5-1029(b) provides that, upon motion of the Child Support Enforcement Administration or one of the parties to a paternity proceeding, “the court shall order the mother, child, and alleged father to submit to blood or genetic ⁵³ tests to determine whether the alleged father can be excluded as being the father of the child.” (Emphasis added.) Notably, F.L. § 5-1038 outlines the circumstances under which a prior paternity judgment may be modified.

It allows a court to set aside a paternity judgment based on scientific evidence that demonstrates that the adjudicated father is not the biological father. The statute states: § 5-1038. Finality; modification. (a) Declaration of paternity final; modification. — (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: 1. in the manner and to the extent that any order or decree of an equity court is subject to the revisory power of the court under any law, rule, or established principle of practice and procedure in equity; or 2. if a blood or genetic test done in accordance with § 5-1029 of this subtitle establishes the exclusion of the individual named as the father in the order. (ii) Notwithstanding subparagraph (i) of this paragraph, a declaration of paternity may not be modified or set aside if the individual named in the order acknowledged paternity knowing he was not the father. (b) Other orders subject to modification. — Except for a declaration of paternity, the court may modify or set aside any