Burden v. Burden

³⁵¹ LAWRENCE F. RODOWSKY, Judge, (retired, specially assigned). Christine R. Burden (Christine) appeals from a decree entered by the Circuit Court for Baltimore County in a divorce case that was filed in April 2006. She is aggrieved by the exclusion from the court’s child support order of one of her sons, who is the stepson of the appellee, Michael L. Burden (Michael). Christine contends that Michael is precluded from denying paternity because he voluntarily acknowledged paternity on the child’s South Dakota birth certificate.

Michael has not filed a brief or otherwise appeared in this appeal. The child is Malachi Antoine Viccarrio (Malachi) who was born to Christine, then unmarried, on July 23, 1995, in Sioux Falls, South Dakota. His original birth certificate was issued using Christine’s family name, Handy, as the child’s surname. Christine and Michael first met sometime after Malachi was born.

The parties were married on April 22, 2000, in South Dakota. They separated in May 2003. After the parties separated, Christine moved to Baltimore. In August of 2003, in connection with his employment as an assistant basketball coach, Michael moved to Florida.

Currently, he coaches at the University of Maine. While in Florida, Michael was the object of child support proceedings. Michael testified that a child support order in Florida was entered for both Malachi and his half-brother, Michael, the child of Christine and Michael, who was born on December 6,1999. 1 The uncontradicted evidence is that, prior to the parties’ separation, Michael treated Malachi as if the latter were the former’s own child. Michael supported Malachi, who referred to Michael as his father.

Michael’s family accepted Malachi as one of the grandchildren or nephews. ³⁵² On July 5, 2000, Michael had filed a paternity affidavit with the Department of Health in Pierre, South Dakota, in which he acknowledged, with Christine’s signed consent, that he was “the natural father” of Malachi. In that affidavit he furnished personal information which was “to be entered on the certificate o f birth relative to the natural father.” Michael also signed the acknowledgment set forth below: “I acknowledge that I voluntarily sign this Paternity Affidavit. I further acknowledge that all rights, responsibilities, alternatives and legal consequences associated with signing this affidavit have been fully explained to me, orally and/or in writing, and I fully understand the same. I also understand that an affidavit of paternity signed by both parties creates a presumption of paternity and allows for the establishment of a child support obligation without further legal proceedings to establish paternity.

I further understand that either party can seek circuit court recission of this affidavit within 60 days of signing the affidavit, unless an administrative or judicial proceeding has already been commenced regarding the child.” The South Dakota Department of Health issued a certificate of birth for Malachi listing Michael as the father. Christine testified that Michael wanted to adopt Malachi at the time of the affidavit, but that the couple could not get the biological father to sign a termination of parental rights. Michael described the circumstances leading to the execution of the paternity affidavit as follows: “I don’t know about adoption. We discussed—I signed that because the whole thing was he didn’t have my last name.

Michael had my last name, and she had it, and we was worrying about that. That’s why I signed the form.” In the case before us, the circuit court, in an oral opinion, concluded that it could not include Malachi in the support order because the parties agreed that Michael was not the biological father of Malachi. The court would not give effect to the South Dakota paternity affidavit and birth certificate because it was not a court judgment. ³⁵³ In a post-opinion motion, Christine, for the first time, called the circuit court’s attention to 9A South Dakota Codified Laws (SDCL) (1999 rev., 2007 supp.), §§ 25-8-52 and 25-8-59. They read: “25-8-52.

Rebuttable presumption of paternity— Signed and notarized affidavit. A signed and notarized affidavit of paternity creates a rebuttable presumption of paternity, admissible as evidence of paternity, and allows the Department of Social Services to proceed to establish a support obligation in accordance with the provisions of §§ 25-7A-5 to 25-7A-8, inclusive, without requiring any further proceedings to establish paternity.” 2 “25-8-59. Actions contesting rebuttable presumption of paternity. Any action contesting a rebuttable presumption of paternity as established by §§ 25-8-50 to 25-8-58, inclusive, shall be commenced in circuit court either sixty days after the creation of the presumption of paternity or the date of any administrative or judicial proceedings relating to the child including proceedings to establish a support obligation in accordance with § 25-8-52, whichever occurs earlier, except in cases where there are allegations of fraud, duress, or material mistake of fact.

In cases involving allegations of fraud, duress, or material mistake of fact, any action contesting a rebuttable presumption of paternity shall be commenced within three years after the creation of any presumption. The burden of proof shall be upon the moving party and the payment of child support, or any other legal responsibilities of the parties, may not be suspended during the pendency of the proceedings, except upon a showing of good cause by the moving party.” Christine contended that the presumption of paternity, arising from Michael’s acknowledgment, was irrebuttable because ³⁵⁴ the time set under § 25-8-59 had passed. The circuit court denied the motion by docket entry. In this Court, Christine presents two questions on the merits: I. “Whether the Trial Court’s finding, by implication, that the Appellee’s paternity had not been established under the laws of South Dakota was clearly erroneous?” II. ‘Whether the Trial Court erred in failing to give full faith and credit to the acts and records of the State of South Dakota Health Department?” Noteworthy is that Christine does not argue estoppel. 3 Standard of Review In Steinhoff v. Sommerfelt, 144 Md.App. 463 , 798 A.2d 1195 (2002), this Court held that, where a motion to alter or amend raises an independent contention, its denial is subject to broad discretionary review.

Id. at 484 , 798 A.2d at 1207 . The procedural history of the divorce action before us implicates the Steinhoff rule. The trial in the instant matter concluded on January 9, 2007, at which time the South Dakota statutes had not been cited or argued. At that time, the court orally ruled from the bench.

The docket entry for that proceeding concluded: “Order to be filed.” It is within ten days from that oral ruling that Christine filed her motion to alter or amend. By an order entered on February 16, 2007, the court denied that motion, and the notice of appeal was filed on March 19, 2007. The judgment of absolute divorce, however, was not docketed until April 26, 2007. 4 Thus, al ³⁵⁵ though the post-trial motion filed by Christine did not have the effect of deferring the time for noting an appeal, because no judgment had been entered, the motion presented an entirely new ground in an attempt to persuade the court to the contrary of its announced ruling. In Steinhoff , a divorce case, the appellant asserted for the first time, in a motion to alter judgment, that a qualified domestic relations order was required, as part of a monetary award. 144 Md.App. at 482 , 798 A.2d at 1206 .

We said that “[t]he appellant may not exploit an appeal from a post-trial procedure as a device to outflank the non-preservation bar to an appeal from a trial procedure. One may not preserve an issue nunc pro tunc.” Id. at 483, 798 A.2d at 1206-07 . The preservation requirement is governed by Maryland Rule 8-131, providing that “[ojrdinarily,” an appellate court will not decide an unpreserved issue. Reposed in the appellate courts, however, is a discretion nevertheless to decide the issue, exercisable, inter alia, when an appellate ruling would be desirable for trial court guidance.

Because the problem presented here, and application of the analytical framework required to resolve it, are highly likely to recur, we shall exercise our discretion to consider the appeal. 5 ³⁵⁶ Discussion As will appear infra, the two questions presented merge into one issue. Christine contends that the circuit court; erred in failing to give full faith and credit to the records of South Dakota. She submits that, under the law of South Dakota, Michael, by voluntarily acknowledging paternity and by failing timely to seek to disestablish paternity, is now conclusively presumed to be the father of Malachi. Article IV, § 1 of the Constitution of the United States reads: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” The relevant federal legislation is the Social Security Act, subchapter IV, “Grants to States for Aid and Services to Needy Families with Children and for Child-Welfare Services,” Part D, “Child Support and Establishment of Paternity,” 42 U.S.C. § 651 et seq., as revised by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the Federal Act), P.L. 104-193, effective July 1, 1997. These federal statutes are the basis for the South Dakota enactments relied upon by Christine. The Maryland counterparts of the South Dakota statutes are found in Maryland Code (1984, 2006 RepLVol.), Subtitle 10, “Paternity Proceedings,” Title 5, “Children,” of the Family Law Article (FL). Under 42 U.S.C. § 666 (a), each state, in order to qualify for federal funds, must have in effect laws requiring the use of statutorily prescribed procedures to improve the effectiveness of child support enforcement.

In addition to genetic testing, these procedures include, under § 666(a)(5)(C) and (D), volun ³⁵⁷ tary paternity acknowledgment. The relevant provisions read as follows: “(5) Procedures concerning paternity establishment “(C) Voluntary paternity acknowledgment “(i) Simple civil process “Procedures for a simple civil process for voluntarily acknowledging paternity under which the State must provide that, before a mother and a putative father can sign an acknowledgment of paternity, the mother and the putative father must be given notice, orally, or through the use of video or audio equipment, and in writing, of the alternatives to, the legal consequences of, and the rights (including, if 1 parent is a minor, any rights afforded due to minority status) and responsibilities that arise from, signing the acknowledgment. “(iii) Paternity establishment services “(I) State-offered services “Such procedures must require the State agency responsible for maintaining birth records to offer voluntary paternity establishment services. “(II) Regulations “(aa) Services offered by hospitals and birth record agencies “The Secretary shall prescribe regulations governing voluntary paternity establishment services offered by hospitals and birth record agencies. “(bb) Services offered by other entities “The Secretary shall prescribe regulations specifying the types of other entities that may offer voluntary paternity establishment services, and governing the provision of such services, which shall include a requirement that such an entity must use the same notice provisions used by, use the same materials used by, provide the personnel providing such services with the same training provided ³⁵⁸ by, and evaluate the provision of such services in the same manner as the provision of such services is evaluated by, voluntary paternity establishment programs of hospitals and birth record agencies. “(iv) Use of paternity acknowledgment affidavit “Such procedures must require the State to develop and use an affidavit for the voluntary acknowledgment of paternity which includes the minimum requirements of the affidavit specified by the Secretary under section 652(a)(7) of this title for the voluntary acknowledgment of paternity, and to give full faith and credit to such an affidavit signed in any other State according to its procedures. [ (Emphasis added) ]. 6 “(D) Status of signed paternity acknowledgment “(i) Inclusion in birth records “Procedures under which the name of the father shall be included on the record of birth of the child of unmarried parents only if— “(I) the father and mother have signed a voluntary acknowledgment of paternity; or ³⁵⁹ “(II) a court or an administrative agency of competent jurisdiction has issued an adjudication of paternity. “(ii) Legal finding of paternity “Procedures under which a signed voluntary acknowledgment of paternity is considered a legal finding of paternity, subject to the right of any signatory to rescind the acknowledgment within the earlier of— “(I) 60 days; or “(II) the date of an administrative or judicial proceeding relating to the child (including a proceeding to establish a support order) in which the signatory is a party, “(iii) Contest “Procedures under which, after the 60-day period referred to in clause (ii), a signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger, and under which the legal responsibilities (including child support obligations) of any signatory arising from the acknowledgment may not be suspended during the challenge, except for good cause shown.” The regulation implementing voluntary paternity establishment programs is 45 C.F.R. § 303.5 (g). It applies to such programs at, inter alia, “the State birth record agencies.” § 303.5(g)(1)(h). Section 303.5(g)(2)(i) requires that the State’s voluntary paternity establishment program “[pjrovide to both the mother and alleged father” certain information, including the responsibilities of acknowledging paternity. § 303.5(g)(2)(i)(C). “[AJlleged father” is not a defined term in §§ 303.1 and 301.1.

This ambiguity has not escaped the attention o f commentators. P. Roberts, Truth and Consequences: Part I. Disestablishing the Paternity of Non-Marital Children, 37 Fam. L.Q. 35 , 37 (2003), has pointed out that “[a] man could sign a voluntary paternity acknowledgment knowing he was not the child’s biological parent, but nonetheless wanting to assume ³⁶⁰ the responsibilities of parenthood”; and Note, “Voluntary acknowledgments of paternity: Should biology play a role in determining who can be a legal father?,” 38 Ind. L.Rev. 479, 489 (2005) (“In its effort to simplify paternity establishment through voluntary acknowledgments, Title IV-D ignored one salient question—whether paternity affidavits are intended only for biological fathers.”).

The National Conference of Commissioners on Uniform State Laws has also identified the problem. In the comment to new § 301, “Acknowledgment of Paternity,” of the Uniform Parentage Act (2000, rev.2002), the Commissioners observed that the Federal Act “does not explicitly require that a man acknowledging parentage necessarily is asserting his genetic parentage of the child.” 9B U.L.A. Supp. at 19 (2002). Thus, “[i]n order to prevent circumvention of adoption laws, § 301 corrects this omission by requiring a sworn assertion of genetic parenthood of the child.” Id. South Dakota has not adopted the Uniform Parentage Act.

Id. at 4. Nevertheless, the form of affidavit acknowledging paternity for birth registration purposes in South Dakota includes the acknowledgment by the male that he is the “natural” father of the child. Thus, the ultimate issue before us is whether Michael, in Maryland, may disestablish, based on the agreed fact that he is not the biological father of Malachi, the natural fatherhood that he voluntarily acknowledged in South Dakota. This raises the question, “Which state’s law applies?” A. Full Faith and Credit Under the Federal Act, each participating state must “develop and use an affidavit for the voluntary acknowledgment of paternity[.]” 42 U.S.C. § 666 (a)(5)(C)(iv).

Each participating state must also have in effect laws requiring procedures “to give full faith and credit to such an affidavit[, i.e., a voluntary acknowledgment of paternity,] signed in any other State according to its procedures.” Id. Under the rule of construction of the immediate reference, “its,” in the context of the case before us, refers to the procedures of South Dakota. ³⁶¹ Consistent with that reading, the implementing federal regulation requires “[procedures under which the State must give full faith and credit to a determination of paternity made by any other State, whether established through voluntary acknowledgment or through administrative or judicial processes.” 45 C.F.R. § 302.70 (a)(ll) (emphasis added). The Maryland implementation of this standard for a Title IV-D program is FL § 5-1048, which reads: “A finding of paternity established in any other state shall have the same force and effect in a proceeding under this subtitle as in any other civil proceeding in this State if: “(1) with respect to an adjudication of paternity, the finding was established by a court or by an administrative process that includes a right to appeal to a court; or “(2) with respect to a finding of paternity that is based on an affidavit of parentage, the affidavit was signed after each signatory to the affidavit was advised of their legal rights.” We interpret “finding of paternity,” as used in the introduction to § 5-1048 and in subsection (2) thereof, to refer to the effect of the voluntary acknowledgment under South Dakota law. It is clear that foreign judicial adjudications or administrative orders establishing paternity are treated in subsection (1).

It is the alternative in subsection (2) that addresses the voluntary affidavit of paternity. We construe the term “finding,” as used therein, consistently with the use of the same term in the Federal Act, under which “a signed voluntary acknowledgment of paternity is considered a legal finding of paternity[.]” 42 U.S.C. § 666 (a)(5)(D)(ii). Further, Professor William L. Reynolds of the University of Maryland School of Law, writing with Susan F. Paikin, has described this aspect of the Federal Act as follows: “Although not a traditional judgment, voluntary paternity acknowledgments now create a conclusive determination of paternity, subject to a