Corbett v. Mulligan

GRAEFF, J. William Corbett, appellant, filed a complaint in the Circuit Court for Frederick County against Amy Mulligan, appellee, to determine the paternity of her daughter, Gracelyn. 1 Mr. ⁴¹ Corbett appeals from the circuit court’s order denying his request for paternity testing and ordering that Mr. Thomas Mulligan is the legal father of Gracelyn. Mr. Corbett presents three questions for our review, which we quote: 1. Under the precepts of either Maryland Family Law Article 5-1027(c), or Estates and Trusts Article l-206(a), is a child who is conceived during the marriage but after the separation of a husband and wife, and who is bom after their divorce, considered to be “born out of wedlock”? A) If so, was the Judge required by the Family Law statutes to order blood tests without a “best interests analysis” so as to determine the child’s biological paternity?

B) If a blood test is not mandatory, then did the Judge err in determining that the Appellant had not demonstrated by the preponderance of the evidence that it was in [Gracelyn’s] best interest to have genetic/blood testing done to determine the identity of her biological father? 2. Did the trial court err by placing significant import on an Affidavit of Paternity, purportedly signed by the Appellee’s former husband, that was a) never produced at trial, and which, b) if completed and signed as claimed by the Appellee, would have demonstrated that the signers were guilty of perjury? 3. Did the Court’s denial of the Appellant’s request for blood testing also result in a denial of his due process rights to establish his parenthood, which is a basic human right and liberty guaranteed by the Constitution? We will dispose of the appeal on the first issue.

For the reasons set forth below, we hold that the request for genetic testing was governed by the paternity provisions in the Family Law Article, which required the court to order such testing upon Mr. Corbett’s request. Accordingly, we shall reverse the judgment of the trial court. ⁴² FACTUAL AND PROCEDURAL BACKGROUND Mr. and Ms. Mulligan were married on March 26, 1999. They had two sons and one daughter. The Mulligans separated in April 2009. 2 During the separation, Ms. Mulligan entered into a relationship with Mr. Corbett, and she became pregnant.

Her relationship with Mr. Corbett ended before the child was born, and Ms. Mulligan reconciled with Mr. Mulligan. Gracelyn, the child conceived while Mr. and Ms. Mulligan were married, but separated, was born on January 25, 2010. Although Mr. and Ms. Mulligan were living together at the time of Gracelyn’s birth, they were no longer married; they were divorced on September 25, 2009. On February 25, 2010, Mr. Corbett filed a Complaint for Paternity, Child Support and Visitation Schedule.

He asserted that it was in Gracelyn’s best interests “to know for certain who her father is, both for purposes of involvement and bonding as well as for future medical needs.” He alleged that it would be in Gracelyn’s best interests to develop a relationship with him, her actual father. He asked the court to hold a hearing to determine whether DNA testing should be ordered “to determine the parentage of the child,” to establish a visitation schedule, and to determine appropriate child support payments. On March 29, 2010, Ms. Mulligan filed a Motion to Dismiss for Failure to State a Claim. She maintained that Gracelyn was “the legal child of Thomas Mulligan” pursuant to Md. Code (2001 Repl.Vol.), § 1-206 of the Estates and Trusts Article (“E.T.”), and she lived with her parents and siblings in Frederick, Maryland.

Ms. Mulligan alleged that Mr. Corbett, who lived in Pennsylvania, had not had any contact with ⁴³ Gracelyn, he had not demonstrated “good cause of sufficient persuasive force to overcome the statutory presumption” that Mr. Mulligan was the legal father, and the court “should not require a blood test to determine ‘paternity’ of a child living with her legal father in a stable home environment.” On April 9, 2010, Mr. Corbett filed his response to Ms. Mulligan’s motion to dismiss. He alleged that Mr. and Ms. Mulligan were separated when Gracelyn was conceived, and they were divorced when Gracelyn was born. Because Gracelyn was not born during an intact marriage, Mr. Corbett asserted that E.T. § 1-206 did not apply, but rather, the applicable statutory provision was Md.Code (2006 Repl.Vol.), § 5-1029(b) of the Family Law Article (“F.L.”), which requires that “blood or genetic tests” be ordered upon request. Although he acknowledged that he had not had contact with Gracelyn, Mr. Corbett asserted that there was a court order that barred him from contacting Ms. Mulligan.

He stated that he had requested visits with Gracelyn, through his attorney, but Ms. Mulligan had rebuffed all his requests. On April 15, 2010, the circuit court denied Ms. Mulligan’s motion to dismiss. The court held a hearing on May 13, 2010. Mr. Mulligan testified that he and Ms. Mulligan separated in April 2009, but she returned in September of that year.

Mr. Mulligan actively participated in preparing for Gracelyn’s birth. He paid for and attended all of Ms. Mulligan’s prenatal appointments, and he had “pretty much delivered the baby” with the assistance of a midwife. After Gracelyn was born, he continued to pay her medical bills, as well as paying for diapers, clothing, and “everything she’s needed.” He participated in daily care, and he obtained a second job to pay expenses because Ms. Mulligan was not working outside the home. Mr. Mulligan also testified regarding the bond between Gracelyn and her siblings and the family activities they participated in together.

He described his children as “thrilled” to have Gracelyn in their family, stating that his sons were ⁴⁴ protective of Gracelyn and his daughter acted “like a little mom sometimes.” Regarding the issue of paternity of Gracelyn, Mr. Mulligan recognized the possibility that Mr. Corbett was the biological father. 3 Mr. Mulligan encouraged Ms. Mulligan to contact Mr. Corbett on the day Gracelyn was born because Mr. Corbett “ha[d] a right to be there.” He told Ms. Mulligan, however, that if Mr. Corbett was unwilling to sign the birth certifícate, he “would love to be the baby’s father.” Although Mr. and Ms. Mulligan were not married, Mr. Mulligan testified that they were engaged and planned to marry as soon as time permitted. On cross-examination, counsel for Mr. Corbett pressed Mr. Mulligan regarding his past financial troubles and criminal history. Mr. Mulligan admitted that his home had been in foreclosure, but he testified that he had filed for bankruptcy, and the home was no longer in foreclosure. On two previous occasions, 1992 and 2006, Mr. Mulligan had been found guilty of theft.

Ms. Mulligan testified that in August 2009, because she was pregnant, she resigned her teaching position and moved with her three children to live with Mr. Corbett in Waynesburg, Pennsylvania. Mr. Corbett paid for the rent and utilities, but he told Ms. Mulligan that she needed to sign up for food stamps to provide groceries for herself and her children because “it was too hard for him to do it all.” On September 3, 2009, Mr. Corbett became frustrated with Ms. Mulligan’s children, and he told her that “he couldn’t stand it anymore,” and “he wanted out.” Ms. Mulligan told him that she would go away for the weekend to “give him ⁴⁵ some time to think about it.” On Friday, September 4, 2009, Mr. Corbett sent Ms. Mulligan a text message asking her to move out of his house by the following Monday. 4 Ms. Mulligan, who was pregnant and had three children, was unable to move all her things out in that short time frame. Mr. Corbett subsequently left her a phone message that if she did not get her things out of the house, he would put them out on the curb. Ms. Mulligan subsequently moved out of Mr. Corbett’s home and back to Maryland.

She testified that she sent Mr. Corbett an update on the baby after every doctor’s appointment. 5 Mr. Corbett had asked if he could be present when ⁴⁶ Gracelyn was born, but Ms. Mulligan testified that would not be possible because it would be “too hard” given the nature of their relationship. She testified that Mr. Corbett was “antagonistic,” and he had harassed her, prompting her to file harassment charges against him. Ms. Mulligan called Mr. Corbett on the night Gracelyn was born. Mr. Corbett was “very angry” and told her that she was “very inconsiderate for not ... letting him be there.” When he asked who was present when Gracelyn was born, she responded that Mr. Mulligan had been there.

Mr. Corbett was upset and appalled. Mr. Corbett was also upset because visiting hours were almost over, and he would not be able to see Gracelyn until the next day. The next morning, Ms. Mulligan called Mr. Corbett to remind him to bring his identification so that he would be able to sign the Affidavit of Parentage for the birth certificate as Gracelyn’s father. Mr. Corbett stated that he would talk about that when he got there.

When he arrived at the hospital, he refused to sign the affidavit, stating that he would have “to support [Gracelyn] for 18 years of her life.” He became “very ugly,” stating that her last name was not Mulligan, and bringing up again that she did not allow him to be there for the child’s birth. The argument became heated, and Ms. Mulligan threatened to call security. Mr. Corbett left and did not contact her again or give her any money or anything else to provide for the baby. Ms. Mulligan testified that, when the baby was born, she was covered under Mr. Mulligan’s health insurance.

She testified that Mr. Mulligan helped to take care of Gracelyn, changing her, bathing her, and feeding her. Ms. Mulligan wanted to marry Mr. Mulligan again, but they could not afford to get married. ⁴⁷ Ms. Mulligan also testified about Mr. Corbett’s interactions with her other children. Mr. Corbett never played with the children while she was living with him, he refused to watch television with them, and he was “very, very harsh with them.” On cross-examination, Mr. Corbett’s attorney confronted Ms. Mulligan with the complaint for absolute divorce that she filed on May 6, 2009. He asked whether she swore in the complaint that she had lived separate and apart from Mr. Mulligan, without engaging in sexual intercourse, since April 4, 2008.

After her counsel objected, Ms. Mulligan asserted her Fifth Amendment right against self-incrimination. Ms. Mulligan testified that Mr. Mulligan was Gracelyn’s legal father, he acted as her father, and he was the person that Gracelyn knew as her father. Although she was not sure that Mr. Corbett was Gracelyn’s biological father, she believed that he was. Nonetheless, she refused to subject Gracelyn to DNA or blood testing as requested by Mr. Corbett to prove paternity because she did not believe that it was in Gracelyn’s best interests.

She stated that her other children felt threatened by Mr. Corbett, that Mr. Corbett did not know how to respond to a child, and that given the angry and tense relationship she had with Mr. Corbett, she did not think that they could share responsibility for Gracelyn. Mr. Donald King, Ms. Mulligan’s 79-year-old father, testified regarding the efforts he made to assist his pregnant daughter move out of Mr. Corbett’s home in the 72-hour time frame that Mr. Corbett imposed. He also described Gracelyn’s home environment, stating that she and Mr. Mulligan had “bonded beautifully.” Mr. Corbett testified next. He had known Ms. Mulligan “pretty much all [hisj life,” and they began dating in March 2009.

They were trying to have a baby. When Ms. Mulligan learned she was pregnant, Mr. Corbett “was thrilled.” In August 2009, Mr. Corbett and his cousin loaded Ms. Mulligan’s belongings in a truck to move her and her children into his home in Pennsylvania. While Ms. Mulligan and her children lived with Mr. Corbett, he paid rent, utilities, Ms. ⁴⁸ Mulligan’s car payment, and general upkeep of the house. Mr. Corbett disagreed with the manner in which Ms. Mulligan disciplined her children.

He acknowledged that he had threatened to strike them. He explained that the children put holes in the walls of the house, and he eventually asked that she leave. When Ms. Mulligan moved out of the house, Mr. Corbett contributed $140 toward the cost of the moving truck and gas. Mr. Corbett testified that he experienced a great deal of frustration when he attempted to get information about Ms. Mulligan’s pregnancy after she moved out of his home.

Specifically, he noted that he was unable to get information regarding her birthing plans or confirmation that Gracelyn would be taking his last name. He denied harassing, threatening, or cursing at Ms. Mulligan. In response to Ms. Mulligan’s testimony regarding his inability to interact with children, Mr. Corbett testified that he had excellent relationships with his nieces and nephews. Regarding his visit to Ms. Mulligan and Gracelyn in the hospital, Mr. Corbett testified that he had been frustrated that he was not able to visit Gracelyn until the day after she was born.

He stated, however, that he was comfortable holding her, and that he loved her. Both of his parents had accompanied him to the visit, and they took turns holding her and taking pictures and videos. Mr. Corbett stated that he did not sign the Affidavit of Paternity because he “needed to be 100 percent sure.” He explained that he “wasn’t being treated as the father. I wasn’t there for the birth.

The child was not named after me.... I felt that I wasn’t going to risk 18 years of my life [on] a child that I’m not being treated as a father.” Mr. Corbett acknowledged that he was not “100 percent” sure that he was Gracelyn’s father, and he had requested DNA testing at the hospital. Ms. Mulligan refused because it was too expensive. Mr. Corbett denied threatening Ms. Mulligan at the hospital, and he stated that he was holding Gracelyn when Ms. Mulligan threatened to call security.

His attorney had ⁴⁹ advised Mm to initiate discussions regarding visitation the week after Gracelyn was born, but he did not do so because he was afraid that Ms. Mulligan would bring more charges against him. At the conclusion of the testimony, counsel for Mr. Corbett argued that, if the child was born out of wedlock, the court, pursuant to F.L. § 5-1029, had “no authority to do anything other than order DNA tests.” Counsel further argued that, even if the court were not required to order DNA testing, it was in Gracelyn’s best interests that the test be ordered. He asserted that Gracelyn’s current home was not stable, stating that Mr. and Ms. Mulligan had a “history of breaking up” and financial problems. He explained that Gracelyn would benefit from Mr. Corbett’s child support payments, as well as knowing the identity of her biological father for medical reasons.

Counsel argued that Gracelyn was not yet old enough to have forged strong bonds with her siblings or Mr. Mulligan, and there was no risk of emotional harm to Gracelyn by proving that Mr. Corbett was her biological father. Counsel for Ms. Mulligan argued that the Estates and Trusts Article makes clear that Mr. Mulligan is the legal father of Gracelyn. He asserted that Mr. Mulligan signed an Affidavit of Paternity acknowledging Gracelyn as his child. Because Gracelyn had a legal father, the court was not required to order paternity tests, but rather, the court needed to make a decision based on the best interests of the child.

Counsel argued that it was in Gracelyn’s best interests not to have a paternity test and potentially disturb the strong bond that Gracelyn had with Mr. Mulligan, particularly given Mr. Corbett’s prior acts. The court issued its decision from the bench. The court ruled that paternity testing was mandated only where paternity was void. In this case, paternity was not void because, pursuant to E.T. § 1-206, there was a rebuttable presumption that Gracelyn was the legitimate child of Mr. Mulligan because she was conceived during the Mulligan’s marriage.

The court stated that the Family Law Article was not “intended to ⁵⁰ disestablish [ ] paternity where paternity is statutorily established.” The court determined that, pursuant to E.T. § 1-206, analysis of the best interests of the child was the standard to determine whether to order genetic testing. Applying the best interests standard, the court found that it was not in Gracelyn’s best interests to have a paternity test, noting that she was in an intact family that provided stability, “she [wa]s well cared for, well loved, [and] well nourished,” both physically and emotionally. Mr. Corbett, on the other hand, had a very limited relationship with Gracelyn, he had kicked Ms. Mulligan out of his home while she was pregnant, and he had a weak relationship with Ms. Mulligan’s other children, whom he threatened with a belt. Moreover, he had not paid for prenatal visits or any of Gracelyn’s needs after her birth.

The judge stated that, after observing Mr. Corbett’s demeanor and testimony in court, she believed that the proceedings were “a control thing.” On May 26, 2010, the court issued its order, denying Mr. Corbett’s request for paternity testing and ordering that Mr. Mulligan was the legal father of Gracelyn. This timely appeal followed. STANDARD OF REVIEW The standard of appellate review for an action tried without a jury is set forth in Maryland Rule 8-131 (c), which provides: When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. “ ‘The appellate court must consider evidence produced at the trial in a light most favorable to the prevailing party.’ ” Friedman v. Hannan, 412 Md. 328, 335 , 987 A.2d 60 (2010) (quoting Ryan v. Thurston, 276 Md. 390, 392 , 347 A.2d 834 (1975)). “ ‘If there is any competent evidence to support the ⁵¹ factual findings below, those findings cannot be held to be clearly erroneous.’ ” Id. at 335-36, 987 A.2d 60 (quoting Solomon v. Solomon, 383 Md. 176, 202 , 857 A.2d 1109 (2004)).

The deference given to the trial court’s factual findings, however, does not apply to legal conclusions. Clancy v. King, 405 Md. 541, 554 , 954 A.2d 1092 (2008). Instead, we “ ‘must determine whether the lower court’s conclusions are legally correct.’ ” White v. Pines Community Improvement Ass’n, Inc., 403 Md. 13, 31 , 939 A.2d 165 (2008) (quoting YIVO Institute for Jewish Research v. Zaleski, 386 Md. 654, 662 , 874 A.2d 411 (2005)). DISCUSSION Mr. Corbett’s first, and ultimately dispositive, contention is that the trial court erred in denying his request for DNA testing to determine paternity of Gracelyn.

He argues that the court was required to order a paternity test upon his request, and it erred in considering the best interests of Gracelyn in determining whether to order a paternity test. He further argues that, even if the best interests of the child was the proper analysis for determining whether to order a paternity test, the court “erred in determining that he had not demonstrated, by a preponderance of the evidence, that it was in Gracelyn’s best interests to have genetic/blood testing to determine the identity of her biological father.” Mr. Corbett asserts that it is in Gracelyn’s best interests to “determine for certain who her biological father really is,” he “is willing and able to provide financial support” for her, and he has constantly voiced his desire to build a relationship with her. Ms. Mulligan contends that, because Gracelyn was conceived during the Mulligans’ marriage, Mr. Mulligan is presumed to be Gracelyn’s father. She argues that, although blood testing is mandatory on request when there is no legal father, if there is a presumed legal father, testing to rebut the presumption of paternity should be ordered only upon a showing of good cause that it is in the child’s best interests to conduct such tests.

Ms. Mulligan contends that the trial court properly applied the best interests test and determined that it was not in Gracelyn’s best interests for a paternity test to be ⁵² ordered. She asserts that Mr. Mulligan is better suited to be a father to Gracelyn, noting that he provided health insurance during her pregnancy and for Gracelyn’s birth, attended prenatal doctor’s appointments, and “provided child support for his other children when the family was separated.” In contrast, Mr. Corbett did not pay for Ms. Mulligan’s prenatal visits or Gracelyn’s health care, he did not attend any prenatal doctor’s visits, and he did not even support Ms. Mulligan while they were living together, instead asking her to apply for food stamps. Moreover, Ms. Mulligan asserts that Mr. Corbett was unable to bond with her other children. The first step of the analysis requires us to determine which of two statutory provisions applies to this case.

There are