Department of Human Resources Ex Rel. Allison v. Mitchell

WOODWARD, J. Appellants, the Maryland Department of Human Resources and Montgomery County Office of Child Support Enforcement (“MCOCSE”) 1 , appeal from the decision of the Circuit Court for Montgomery County regarding child support due to Andrea Allison (“Andrea”), a resident of Alabama, for the care of her children, Diana Allison (“Diana”) 2 and Keith Scott Mitchell, Jr. (“Keith Jr.”). In January 2007, MCOCSE registered with the circuit court a 1992 New York divorce decree that ordered appellee, Keith Scott Mitchell, Sr. (“Keith Sr.”), to pay child support for his children, Diana and Keith Jr. Keith Sr. at first contested registration of the order but then withdrew his challenge. Later, Keith Sr. and MCOCSE agreed to a Consent Modified Child Support Order. The consent order provided, inter alia, that Keith Sr. was no longer obligated to support Keith Jr. because Keith Jr. was emancipated and that Keith Sr.’s support obligation for Diana was increased.

At the time of the filing of the consent order, however, Keith Sr. filed a request to set aside the declaration of his paternity of Diana. After a DNA test was conducted, it was revealed that Keith Sr. was not Diana’s biological father. Thereafter, over MCOCSE’s opposition, the circuit court excluded Keith Sr. as the father of Diana, vacated the registration of the New York decree and the Maryland consent order, and nullified Keith Sr.’s child support arrears relating to Diana. This appeal followed. ⁵² MCOCSE presents one question for our review, which we have rephrased as two questions 3 : I. Did the circuit court err in concluding that the parentage of Diana had not been determined previously by the State of New York?

II

Did the circuit court err in permitting Keith Sr. to utilize the defense of nonparentage in the proceeding to register and enforce the New York divorce decree? Finding error, we reverse and remand for further proceedings. BACKGROUND Keith Sr. and Andrea (then Andrea Mitchell) were granted a Divorce Judgment in New York, on March 18, 1992 (the “New York divorce decree” or the “New York support order”). The New York divorce decree noted that Andrea would have custody “of the children) of the marriage, i.e.” Keith Jr., born June 8, 1987,. and Diana, born February 17, 1990.

The decree further ordered Keith Sr. to pay child support to Andrea in the total amount of $62 per week “for all children.” On January 24, 2007, at the request of Alabama, MCOCSE filed the New York support order in the Circuit Court for Montgomery County, pursuant to the Uniform Interstate Family Support Act (“UIFSA”), 4 along with a request to file a foreign child support order. On February 15, 2007, Keith Sr., acting pro se, filed an answer to the request to file a foreign child support order in which he raised the defense that Keith Jr. was emancipated. In his answer, Keith Sr. made no mention .of Diana or his parentage of her. On April 11, 2007, a hearing was held before a Special Master of the Circuit Court ⁵³ for Montgomery County on Keith Sr.’s opposition to MCOCSE’s request to file a foreign child support order.

At that hearing Keith Sr. withdrew his opposition to the registration of the foreign order. Keith Sr. also signed a Line, filed on April 19, 2007, stating that “[Keith Sr.] withdraws his petition/opposition to registration of the Foreign Support Order.” Meanwhile, on March 6, 2007, MCOCSE filed a Motion for Modification of the foreign support order in which MCOCSE claimed that the “incomes and expenses of the custodial and non-custodial parents have materially changed, warranting an increase/decrease in the amount of support.” On April 11, 2007, Keith Sr. filed an answer to MCOCSE’s motion for modification denying that there had been a material change in the parties’ incomes and expenses warranting an increase in the amount of child support. That same day Keith Sr. also filed a Counter-Petition/Motion to Modify Child Support. In his counter-petition, Keith Sr. alleged that “our eldest child, Keith Jr. is emancipated by age and other factors.” Again, Keith Sr. failed to mention Diana or his parentage of her.

Indeed, in the request for relief in his counter-petition, Keith Sr. asked the circuit court, among other things, to “reduce the number of minor children from 2 to 1.” On June 21, 2007, a hearing was held on MCOCSE’s motion for modification before a Special Master of the circuit court. At that hearing, a Consent Modified Child Support Order between Keith Sr. and MCOCSE was submitted to the court. The consent order increased Keith Sr.’s child support obligation from $62.00 per week for both children to $483.00 per month for Diana and eliminated any ongoing support obligation for Keith Jr. The consent order also set forth Keith Sr.’s total arrears for both children at $41,345.83 as of June 21, 2007. On June 21, 2007, Keith Sr. also filed a Request to Set Aside Declaration of Paternity and Request for Modification of Child Support.

In his request, Keith Sr. stated his belief that he was not Diana’s father because, according to Keith Sr., Andrea ⁵⁴ “admitted I am not the Father and I was in military [sic] when child was conceived.” In the request, Keith Sr. asked the court to order the parties and Diana to undergo a DNA test to determine whether Keith Sr. could be excluded as Diana’s father. MCOCSE filed no response to Keith Sr.’s request for genetic testing, and on July 12, 2007, the circuit court entered an order granting the requested test. On October 11, 2007, MCOCSE filed the results of a paternity test, which determined that Keith Sr. was not Diana’s biological father. On October 17, 2007, MCOCSE filed a response to Keith Sr.’s Request to Set Aside Declaration of Paternity and Request for Modification of Child Support.

In its response, MCOCSE claimed that Keith Sr.’s paternity of Diana had been determined under the law of New York by virtue of the New York divorce decree and that under Maryland Code (1984, 2006 Repl.Vol.), § 10-327 of the Family Law Article (“F.L.”), parentage of a child that has been previously determined by or pursuant to law cannot be raised as a defense under a UIFSA action. MCOCSE also asserted that Keith Sr. failed to file a timely challenge to the validity or enforcement of the New York support order, as is required by F.L. § 10-345, and even if he had, non-paternity was not a defense available to Keith Sr. in contesting the validity or enforcement of a registered order under F.L. § 10-346. MCOCSE concluded by asking the circuit court to deny Keith Sr.’s request to set aside the New York paternity determination and to deny Keith Sr.’s request to modify the Consent Modified Child Support Order dated June 21, 2007. On January 18, 2008, the circuit court held a hearing at which it concluded that there had been no determination of paternity by New York, that the defense of nonparentage was available to Keith Sr. in the instant case, and that it was “kind of a logical absurdity to require him to continue paying and paying for past [sic] for a child that’s not his.” On February 1, 2008, the circuit court entered an order that, inter alia, excluded Keith Sr. as Diana’s father, vacated both the registration of the New York support order and the Consent Modified Child Support Order, and nullified the arrears Keith ⁵⁵ Sr. owed for Diana.

On February 11, 2008, MCOCSE filed a motion for reconsideration, which was denied on February 29, 2008. Thereafter, MCOCSE filed a timely notice of appeal. DISCUSSION MCOCSE argues that the circuit court erred when it allowed Keith Sr. to raise a defense of nonparentage of Diana. Specifically, MCOCSE contends that under UIFSA, this defense is barred when parentage has previously been determined.

According to MCOCSE, Keith Sr.’s New York divorce decree that referred to Diana and Keith Jr. as “children of the marriage” and set a child support obligation was a determination of parentage. 5 Keith Sr. responds that the New York divorce decree created only a presumption of parentage, and was not a determination of parentage. 6 According to Keith Sr., under Maryland law, a “properly ordered” paternity test, as here, rebuts the presumption of paternity based on Diana’s conception during Keith Sr. and Andrea’s marriage. Keith Sr. further contends that UIFSA allowed him to raise the defense of nonparentage as a “defense under the laws of this State.” ⁵⁶ Finally, Keith Sr. argues that, when the circuit court modified the New York support order, it assumed “continuing and exclusive jurisdiction,” and thus UIFSA ceased to apply. Standard of Review The instant appeal concerns the proper interpretation of the UIFSA statute. Where “the issue is the circuit court’s interpretation of [a] statute, and, thus, a question of law, our review of the circuit court’s decision is de novo.” Hernandez v. Hernandez, 169 Md.App. 679, 688 , 906 A.2d 429 (2006).

L In rendering its decision, the circuit court below stated: “I don’t think there was a determination [as to Keith Sr.’s paternity], as contemplated by the statute[,] in New York.” As a result, in its final order, the circuit court directed “that pursuant to genetic testing ordered by this court ... and the results thereof ... [Keith Sr.] be and hereby is excluded as the father of the minor child [Diana], born February 17, 1990.” MCOCSE contends that, under New York law, Keith Sr.’s paternity of Diana had been previously determined by the New York court. We agree. A Determination of Parentage by New York In Sandra I. v. Harold I., 54 A.D.2d 1040 , 388 N.Y.S.2d 376 (N.Y.App.Div.1976), a husband and wife were divorced by a decree that “awarded petitioner, the mother, ‘sole custody of the infant issue of the marriage of the parties hereto, viz., Bradford * * * age 2 years’, and also awarded her $60 weekly for the support and maintenance of herself and the child.” Id. at 377. Later, the father sought to terminate the support order and deny his paternity.

Id. The mother claimed the issue of paternity was barred by the doctrine of res judicata. Id. The Supreme Court of New York, Appellate Division, determined that res judicata did not apply, but concluded instead that “a question of collateral estoppel rather than res judicata [was] presented.” Id.

Under that doctrine, ⁵⁷ however, the Court rejected the father’s attempt to challenge paternity. The Court reasoned: There can be no question that the issue of paternity was decided in the divorce action when the specific finding was made that Bradford “I” * was the “infant issue of the marriage”. Such a finding was necessary and was required to be made on the issue of support which was before the Supreme Court for determination in the divorce action. Before an order of support could be made in that action, the court necessarily made a determination of paternity, as only a “parent” may be ordered to support his or her child.

Id. at 378 (emphasis added) (citation omitted). The Supreme Court of New York, Appellate Division, came to the same conclusion in Jeanne M. v. Richard G., 96 A.D.2d 549 , 465 N.Y.S.2d 60 (N.Y.App.Div.1983), a case in which the mother challenged the Family Court’s order for a blood test for paternity in the course of a child support modification proceeding. Id. at 61. The Supreme Court reversed the order granting the blood test.

Id. The appellate court stated: There can be no question that the issue of paternity was decided in a prior divorce action and prior child support proceedings. Before an order of support could be made, the court necessarily made a determination of paternity, as only a “parent” may be ordered to support his or her child. We conclude, therefore, that respondent is collaterally estopped from now raising the issue of his paternity and that the Family Court erred in ordering the HLA blood test.

Id. at 61-62 (emphasis added) (citations omitted). In the instant case, the New York divorce decree stated: ORDERED AND ADJUDGED that: 1. [Keith Sr.] shall have judgment that the marriage of the parties is dissolved on the evidence found in the Findings of Fact and Conclusions of Law.... ⁵⁸ 2. Andrea ... shall have custody of the child(ren) of the marriage, i.e. NAME [Keith, Jr.] Diana Sade Mitchell DATE OF BIRTH 6/8/87 2/17/90 3. [Keith Sr.] shall have visitation rights with the children of the marriage to be arranged with [Andrea]. 5.

Ordered and Adjudged that [Keith Sr. 7 ] shall pay to ... Andrea ... by check or money order drawn to that individual’s order and forwarded on ... the first day of the month ... after the date of this judgment ... the sum of $62.00 ... for all children for the support of the children, making a total sum of $62.00 per week; (Emphasis added). The decree clearly refers to Keith Jr. and Diana as “the children of the marriage.” The decree also establishes a support obligation on Keith Sr., “for all children,” which means that the court “necessarily made a determination of paternity, as only a ‘parent’ may be ordered to support his or her child.” Jeanne M., 465 N.Y.S.2d at 61 . Consequently, Keith Sr. would be “collaterally estopped from now raising the issue of his paternity.” Id.

We therefore conclude that, under New York law, the New York divorce decree did not merely raise a presumption regarding the paternity of Keith Jr. and Diana, but instead, the New York divorce decree constituted a determination of Keith Sr.’s paternity of Keith Jr. and Diana. Accordingly, the circuit court erred by concluding that there was not a “determination, as contemplated by the statute[,] in New York.” II. The circuit court also ruled that F.L. § 10-346 of UIFSA “does provide an opportunity for [Keith Sr.] ... to challenge ⁵⁹ [the New York support order], ... under the laws of this state ... based on the paternity test.” MCOCSE argues that, under UIFSA, Keith Sr. was barred from raising the defense of nonparentage of Diana in the UIFSA proceeding below. We conclude that, not only was Keith Sr. barred from raising the defense of nonparentage, but, even if he had such right, he waived it.

UIFSA “UIFSA was originally drafted by the National Conference of Commissioners on Uniform State Laws.... ” Holbrook v. Cummings, 132 Md.App. 60, 64 , 750 A.2d 724 , cert. granted, 360 Md. 273 , 757 A.2d 809 (2000). Since its revision in 1996, “[m'Jost United States jurisdictions have ... enacted UIFSA as their local law.” Id. at 65, 750 A.2d 724 . “Maryland substantially adopted the major provisions of UIFSA effective January 1, 1997, as ... [F.L.] § 10-301 et seq.” Id. Under UIFSA, “[a] support order ... issued by a tribunal of another state may be registered in this State for enforcement.” F.L. § 10-340. UIFSA provides a statutory scheme that, among other provisions, establishes jurisdiction in Maryland circuit courts, see F.L. §§ 10-302 and 10-304, and grants the circuit courts power to enforce and modify support orders, see F.L. §§ 10-309 and 10-350.

F.L. § 10-341 sets forth the procedure for initiating registration of a foreign order. Under that section, a person or entity seeking registration of a foreign order must send to the appropriate circuit court a letter requesting registration, “two copies, including one certified copy, of the order to be registered,” a sworn statement showing the amount of any arrearage, the name and certain information about the obligor, and “the name and address of the obligee and, if applicable, the person to whom support payments are to be remitted.” Upon filing, an order is registered and may be “enforce[d] in the same manner and is subject to the same procedures as an order issued by a tribunal of this State.” F.L. § 10-342(b). The circuit court “shall recognize and enforce, but may not ⁶⁰ modify, a registered order if the issuing tribunal had jurisdiction.” 8 F.L. § 10-342(c). Subject to certain exceptions, “the law of the issuing state governs” the order.

F.L. § 10-343(a). The circuit court, however, “shall apply the procedures and remedies of [Maryland] to enforce current support and collect arrears and interest due on a support order of another state registered in [Maryland].” F.L. § 10-343(c). “When a support order ... issued in another state is registered, the registering [circuit court] shall notify the non-registering party.” F.L. § 10-344(a). The notice must include a copy of the order and certain information regarding the rights of the nonregistering party and the implications of registration of the order. F.L. § 10-344.

In particular, the nonregistering party must be informed “that a hearing to contest the validity or enforcement of the registered order must be requested within 20 days after the date of mailing or personal service of the notice.” F.L. § 10-344(b)(2). If the nonregistering party requests a hearing, then “[t]he nonregis-tering party may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages pursuant to § 10-346 of this subtitle.” F.L. § 10-345(a). “If the nonregistering party fails to contest the validity or enforcement of the registered order in a timely manner, the order is confirmed by operation of law.” F.L. § 10-345(b) (emphasis added). UIFSA allows “the party