Faison v. McOcse Ex Rel. Murray

Nazarian, J. ⁷⁷ Although it was hardly Reginald Faison, Jr.'s plan, his appeal in this case reprises Davis v. Wicomico County Bureau , 447 Md. 302 , 135 A.3d 419 (2016), without the intervening res judicata question. Throughout KaSandra Murray's ("Mother") pregnancy, Mr. Faison believed he was the father of her child. The day after the baby girl ("Child") was born, both Mother and Mr. Faison signed an affidavit of parentage attesting that Mother was Child's mother and Mr. Faison was her father. In the months that followed, Mr. Faison and his family maintained a relationship with Child.

But he came over ⁷⁸ time to suspect he wasn't Child's father after all, the relationship ceased, and these child support proceedings ensued. In response to the Montgomery County Office of Child Support Enforcement's ("MCOCSE" or the "Office") complaint against him, Mr. Faison denied formally that he was Child's father, and requested a blood test to determine paternity. The Circuit Court for Montgomery County denied his request, finding the affidavit had created a presumption of parentage and that he had not borne his burden of proving that he signed it as a result of fraud, duress, or a material mistake of fact. 1 He appeals on two grounds: first , that the circuit court erred when it denied his Motion for Genetic Testing, and second , that the circuit court erred by failing to consider whether he met his burden of proving a material mistake of fact. We agree with his first contention and reverse so that he can pursue the second on remand.

I. BACKGROUND Mother and Mr. Faison met at Salisbury University. They first had sexual relations in mid-to late July 2014, returned to college in August, and began dating exclusively in late September. On January 14, 2015, Mother texted Mr. Faison and told him she was at least three months pregnant and that he was the father. He believed he was the father after calculating three months from January and determining that the baby was conceived in late September, when they last had unprotected sex.

He later testified that learning the baby was due in mid-June 2015 gave him "more reason ... to believe that [Child] was [his]." As it turned out, Child was born a month earlier, on May 15, 2015. Even so, Mother and Mr. Faison signed an Affidavit of Parentage (the "Affidavit") the day after Child was born. The top of the Affidavit stated that " This Affidavit is a legal document and constitutes a legal finding of ⁹⁴¹ paternity." ⁷⁹ (Boldface type in original.) And above the space for his signature, Father acknowledged paternity, under penalties of perjury: I solemnly affirm under the penalties of perjury that the contents of the foregoing paper are true to the best of my knowledge, information, and belief. I am the natural father of the child named in Part I of this affidavit.

(Emphasis added.) Mr. Faison also was listed as the father on Child's birth certificate. Mr. Faison testified that when he signed the Affidavit, he believed he was Child's biological father, and he would never have signed it had he known the actual conception date, which he came later to believe occurred sometime in August, not late September. He testified that two at-home DNA tests excluded him as the father. 2 Although Mr. Faison and his family developed and maintained a relationship with Child from the time she was born until early December 2015, all communication and contact with Mother and Child ceased after that point. The Office filed a form complaint against Mr. Faison for child support that relied on the Affidavit to establish parentage.

Mr. Faison answered the Complaint and denied that he is Child's father. In addition to the relative timing of their last relations and Child's birth, Mr. Faison attached copies of Mother's separate petition to change Child's name from his to hers, 3 as well as the results from the at-home DNA tests. 4 ⁸⁰ Along with his answer, Father also filed a Motion for Genetic Testing (the "Motion") that the Office opposed. The circuit court held a hearing on the Motion on August 19, 2016. After taking testimony from Mr. Faison, his mother, and Mother, the court found that Mr. Faison had signed the Affidavit and that his signature was not the a result of fraud or misrepresentation, and denied his Motion: I make the following findings.

The child in this case was born in May 2015. There has been lots of testimony here today about [Mother]'s contact with [Mr. Faison]. So [Mother]'s contact with Mr. Faison and also her contact with another gentleman whose last name is Marshall. The testimony establishes that from the time [Mother] announced that she was pregnant and that she believed Mr. Faison to be the father Mr. Faison and his family participated with the child-well, not the child yet-with [Mother] in an attempt to get to know her and her family and that there were no questions about whether Mr. Faison was the child's father. * * * I don't know and I don't think anybody in the courtroom knows exactly when this child was conceived given that the plaintiff and the defendant were involved in a romantic relationship which ⁹⁴² included sexual relations.

I also have evidence from the defendant that when he was presented with the affidavit of parentage at the hospital he signed it. The plaintiff stated that she asked him whether he was sure about this. He says that didn't happen. Either way he signed it.

As we discussed at some length, the affidavit of parentage itself has a series of instructions at the top of the page ⁸¹ which are clear about what you should do if you have any questions or there is any possibility that you think you might not be this child's father. And then we get to the fall of 2015 when the paternal grandparents decided that they would have the child tested. So they got a home kit and they did a test. And then they got another home kit and they did another test and both times the test indicated that Mr. Faison wasn't the child's father.

While what I am about to say probably sounds like a ridiculous legal hurdle because of the way the law works and should work with regard to children and parents, and because there needs to be some control over testing gets done, and by whom the court system contracts with an entity to do the testing. We don't do testing when someone has already acknowledged parentage. This alas until about 30 years ago was the method by which we identified who is a parent was that the woman was pregnant and a man who had been with her took responsibility or sometimes didn't and once in a while there had to be a proceeding, a trial, but often what happened is the woman was left in a situation where she had a baby that couldn't be identified-whose father couldn't be identified. We don't do it that way anymore but we haven't quite gotten to the place where we test every child at birth.

So do we test them in the hospital waiting room and whoever is there gets tested and it turns out that person is not the father we go from there[?] I hope we never get there but we might have to because of this kind of situation. It is clear that sometime during the year of 2014 up until sometime in the summer [Mother] had relations with another man, Mr. Marshall, who also goes by BJ. I do not have the evidence today to say that Mr. Faison's acknowledgment of parentage of [Child] was the result of fraud or misrepresentation. And because this is the case, I cannot order the testing that he would like me to order so that he could prove or not that he is not the child's father.

So that's the legal answer. And now the practical answer which is that it is clear to me from ⁸² the evidence that I had that your family embraced this child and then has not had any contact with her because of a testing process that was done outside the legal framework and decisions that were made about what that testing meant. After a second hearing on child support, Mr. Faison filed a timely notice of appeal. We will discuss additional facts as necessary below.

II

DISCUSSION Mr. Faison raises two issues on appeal. 5 First , he argues that he was entitled under ⁹⁴³ Davis v. Wicomico County Bureau , 447 Md. 302 , 135 A.3d 419 (2016), to an order for genetic testing and that the circuit court erred in denying it. Second , he argues that the circuit court erred by failing to address whether he met his burden of proof of mistake of a material fact. We review the court's legal decisions de novo , Walter v. Gunter , 367 Md. 386 , 392, 788 A.2d 609 (2002), and review for abuse of discretion the court's application of the law to the facts, since trial courts are "in the best position to assess the import of the particular facts of the case and to observe the demeanor and credibility of witnesses." Beckman v. Boggs , 337 Md. 688 , 703, 655 A.2d 901 (1995) (citing Petrini v. Petrini , 336 Md. 453 , 470, 648 A.2d 1016 (1994) ). A. Mr. Faison Is Entitled To Genetic Testing.

First , Mr. Faison argues that the court erred when it denied his motion for an order authorizing genetic testing, and that he was entitled to a test for the purpose of proving that he signed the Affidavit under the materially mistaken belief ⁸³ that he was Child's biological father. The Office counters that he was not entitled to a genetic test because he acknowledged parentage when he executed the Affidavit, and that he failed to prove that he signed as a result of fraud, duress, or material mistake of fact. We agree with Mr. Faison that the governing statutory law, as interpreted by a majority of the judges of the Court of Appeals in Davis , 447 Md. at 302 , 135 A.3d 419 , entitles him to genetic testing for the purpose of pursuing claims that he signed the Affidavit as a result of a material mistake of fact and the resulting declaration of paternity should be set aside. The governing statutes are contained in Subtitle 10 of Title 5 of the Family Law Article ("FL"), titled "Paternity Proceedings." An executed affidavit of parentage constitutes a legal finding of paternity.

FL § 5-1028(d)(1). An affiant may rescind the affidavit within sixty days after execution. See id. , § 5-1028(d)(1)(i)-(ii). After that, "an executed affidavit of parentage may be challenged in court only on the basis of fraud, duress, or material mistake of fact." Id. , § 5-1028(d)(2)(i).

Everyone agrees, and the court found, that neither Mother nor Mr. Faison rescinded the Affidavit within sixty days of its execution. So, as the trial court explained, the Affidavit established Mr. Faison's paternity pursuant to § 5-1028, and Mr. Faison had the burden to show fraud, duress, or a mistake of material fact if he wanted to rescind the Affidavit. Id. , § 5-1028(d)(2)(ii). In addition, a parent can seek to set aside the declaration of paternity "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." Id. , § 5-1038(a)(2).

Mr. Faison's Answer disputed that he is Child's father, and his Motion sought to satisfy his burden of proving that he was mistaken in believing at the time he signed the Affidavit that he was Child's biological father. His answer didn't allege that Mother committed fraud, but that Mother later "informed him that he is not the father of the minor child" and that at-home DNA tests confirmed this. ⁸⁴ The question of an affiant parent's right under the Family Law Article to genetic testing for this purpose, and on this posture, came before the Court of Appeals in Davis , 447 Md. at 302 , 135 A.3d 419 . But although all of the opinions in Davis addressed this statutory question, the case was resolved on res judicata grounds not present here, and the 3-1-3 vote to affirm the underlying judgment veiled a four-vote majority interpreting the statute to entitle a putative father, post-affidavit execution, ⁹⁴⁴ to obtain a genetic test. On its posture, the Davis concurrence-plus-dissent's statutory analysis qualifies officially as dicta .

Dicta or not, we agree that the Davis dissent has analyzed the statute correctly, and we will follow its analysis here. Accord Boone v. Youngbar , 234 Md.App. 288 , 294-300, 170 A.3d 912 (2017) (adopting Davis 's concurrence-plus-dissent's statutory analysis of the relevant FL sections as "the controlling law of Maryland on this issue"). In Davis , the Wicomico County Bureau of Support Enforcement ("Bureau") filed a Complaint for Child Support alleging that Mr. Davis was responsible for supporting twin boys. Like Mr. Faison, Mr. Davis had executed affidavits of parentage when the boys were born.

Appearing pro se , Mr. Davis requested a paternity test and denied parentage of the children, alleging that his signatures on the affidavits had been obtained through fraud or misrepresentation. The trial judge disagreed, denied Mr. Davis's request for a paternity test, and ordered him to pay child support. The trial court based its decision on the affidavit of parentage and the lack of evidence showing fraud, duress, or mistake of material fact. Mr. Davis did not appeal that decision.

Davis , 447 Md. at 304 -05 , 135 A.3d 419 . Two years later, with the assistance of counsel, Mr. Davis filed a second complaint requesting a genetic test under FL § 5-1029 and, assuming that the test confirmed that he was not the father, asking the court to set aside the declaration of paternity and order of child support under FL § 5-1038. The circuit court granted summary judgment in the Bureau's favor, holding that Mr. Davis was not entitled to a genetic test because the statute did not permit genetic testing for the ⁸⁵ purpose of challenging an affidavit of parentage, and that he was precluded by res judicata from challenging the affidavits or pursuing his claim for a genetic test. Mr. Davis appealed to this Court, and we affirmed.

We concluded that Mr. Davis's claims were barred by res judicata , and we found no error on the trial court's part. 222 Md.App. 230 , 112 A.3d 1024 (2015). The Court of Appeals granted Mr. Davis's petition for a writ of certiorari . Davis v. Wicomico County Bureau , 444 Md. 638 , 120 A.3d 766 (2015). The Court of Appeals ultimately affirmed the judgment.

A three-judge plurality agreed with our conclusions that res judicata barred Mr. Davis's claims, and that in any event, a person who has signed an affidavit of parentage does not have an automatic right to blood or genetic testing pursuant to FL § 5-1028. A fourth judge concurred with the plurality's finding that res judicata barred the appeal, and thus formed the majority to affirm. The concurring judge added, however, that but for the res judicata problem, she would have joined the dissent's "careful and thoughtful interpretation" of the statutes and held that Mr. Davis was entitled to a genetic test, because it "would surely be the equitable result." Davis , 447 Md. at 336 , 135 A.3d 419 (Adkins, J., concurring). A three-judge dissent then analyzed the governing statutes, and concluded, both from the language and structure of the statute and in light of the legislative history, that Mr. Davis was entitled to a genetic test: This case involves construction of the statutes concerning genetic tests to prove or disprove paternity-and the relationship of those statutes to the