Sieglein v. Schmidt

LEAHY, J. Appellant Stephen Sieglein (“Father”) and Appellee Laura Schmidt (“Mother”) were married in a religious ceremony in Havre de Grace, Maryland on April 12, 2008. Two years later, both parties enrolled in an “in vitro” fertilization plan and signed the contracts and documents necessary to participate. ²²⁷ A child conceived via donated egg and donated sperm was born to the parties. The parties separated shortly after the birth of the child, and Father contested legal parentage, seeking to eschew any rights or obligations regarding the minor child. On October 11, 2012, the Circuit Court for Harford County issued a Memorandum Opinion and Order establishing legal paternity and Father’s joint and several responsibility for support of the minor child.

Following a temporary order as to child support, visitation, and custody, the circuit court entered a Judgment of Absolute Divorce on June 19, 2013. On February 10, 2014, the circuit court issued an order finding Father to be voluntarily impoverished, ordering the payment of child support and arrearages, and granting Mother’s request for injunctive relief in the form of a protective order. Father now entreats this Court to declare, inter alia, that because the child is “not the natural child of the parties, nor is he the adopted child of the parties[ but] ... was conceived in[ ]vitro ... through the employment of [anonymously] donated eggs and donated sperm,” he is not a parent and bears no legal responsibility for the child under Maryland law. Father presents the following questions for our review, which we have reordered: I. Did the Court below err in ruling that Appellant was the parent of a child conceived through ‘in vitro’ fertilization with a donated egg and donated sperm?

II

Did the Court err and/or abuse her discretion in granting an Injunction against Appellant?

III

Did the Court err and/or abuse her discretion in finding that Appellant was “voluntarily impoverished”? Because Mother and Father, during their marriage, willingly and voluntarily agreed to conceive a child through assisted reproductive services using anonymously donated genetic material and that volitional action resulted in the birth of a child, we hold that Maryland Code (1974, 2011 Repl. Vol.), Estates and Trusts Article (“ET”) § l-206(b) applies to establish that ²²⁸ both spouses are the legal parents of the minor child. Therefore, both spouses are “jointly and severally responsible for the child’s support, care, nurture, welfare, and education.” Maryland Code (1984, 2012 Repl.

Vol), Family Law Article (“FL”) § 5-203. Additionally, we conclude that the circuit court did not abuse its discretion in issuing an injunction against Father, or in finding Father to be voluntarily impoverished. BACKGROUND The majority of the facts in this case are undisputed. Prior to their first meeting, both parties had children from past relationships, 1 and sometime after the birth of his first child, Father underwent a vasectomy.

Thereafter, the parties met through an online dating site. As Father emphasizes, his online dating profile stated: “[w]ant kids: No.” Notwithstanding, the parties began a relationship and were married in April of 2008. Following their marriage, Mother expressed a desire to have another child. She was unable to conceive, however, and Father, after some discussion and evaluation, declined to have his vasectomy reversed.

Mother and Father sought assisted reproductive services from Shady Grove Fertility Reproductive Science Center including: in vitro fertilization, intracyto-plasmic sperm injection, assisted hatching, and embryo freezing. The consent acknowledgment form required by Shady Grove Fertility Reproductive Science Center provided, in pertinent parts: I/We have been fully advised of the purpose, risks and benefits of each of the procedures indicated above, as well as Assisted Reproduction generally, and have been informed of the available alternatives and risks and benefits of such alternatives. This information has been supplemented by ²²⁹ my/our consultation with my/our medical team. I/We have had the opportunity to ask questions and all my/our questions have been answered to my/our satisfaction.

I/We have read the Assisted Reproduction document in its entirety and have had ample time to reach my/our decision, free from pressure and coercion, and agree to proceed with my/our participation in Assisted Reproduction services as stated above. The acknowledgment was signed by both Mother and Father and witnessed on January 20, 2010.. Thereafter, Mother and Father participated in the assisted reproductive care program. The parties opted to pursue ‘In Vitro’ Fertilization (“IVF”) 2 and it was through this method that a child was conceived and born of the marriage of Mother and Father on March 25, 2012.

It is uncontested that both parties enrolled in the program and signed the necessary contracts and documents in the first two months of 2010. 3 Both Mother and Father appear on the birth certifícate. 4 Both parents participated in the care of the minor child immediately following birth. ²³⁰ Only one month after their child was born, Mother and Father separated. On May 3, 2012, Mother filed a complaint for limited divorce in the circuit court asserting the grounds of “Cruelty/Excessively Vicious Conduct Against Me,” “Cruelty/Excessively Vicious Conduct Against My Children,” and voluntary separation. Soon thereafter, Mother filed a petition for child support, and Father filed his answer on June 12, 2012, denying parentage of the minor child. On July 11, 2012, the circuit court held a pre-trial conference and set a hearing date of August 31, 2012, to address the issue of paternity.

On July 23, 2012, Father filed a motion for determination of a question of law pursuant to Maryland Rule 2-502, requesting that the circuit court decide “whether or not [Father] is a ‘parent’ as that term is employed and understood under Maryland law, so as to obligate him under [Mother’s] claim for child support.” On August 13, 2012, a hearing was held to address Mother’s petition for child support and Father’s motion for determination of the legal question regarding parentage. Father argued that the Court of Appeals “has separated the obligation of support from the question of [ ] legitimacy [in] the Estates and Trusts Article[, and] the test that the Court of Appeals applies is genetics.” Father contended that, if he is not a “parent” to the minor child under Maryland law, then the court cannot impose a child support obligation upon him. Nevertheless, Father’s counsel acknowledged the problems inherent in the argument, stating: [I]t is an interesting part of the discussion because you have to recognize that what I am asking you to do is to rule that this child has no natural parents because we didn’t know who the anonymous donors are. That’s a byproduct of the in[ ]vitro process and that’s why it’s a question of legislative intent.

Mother countered that Father is the legal parent of the minor child and is responsible for support of that child pursuant to ET § 1—206(b), which provides: “A child conceived by artificial insemination of a married woman with the consent ²³¹ of her husband is the legitimate child of both of them for all purposes.” (Emphasis added). On October 11, 2012, the circuit court (William O. Carr, J.), filed its memorandum opinion and order establishing Father’s legal paternity and responsibility for support. The court found: [T]he Estates and Trusts Article unequivocally states that a child conceived via the artificial insemination of a married woman with the consent of her husband is the legitimate child of both spouses. [Father] married [Mother] in 2008. When [Mother] expressed a desire to have a child, [Father] accompanied her to a fertility clinic to explore the IVF process, and they both signed the consent forms for the IVF treatment. [Father] remained in the marital home with [Mother] throughout the pregnancy, and his name appears on the child’s birth certificate as the father. [T]he genetic paternity of the child is not in dispute, and no blood tests are needed to determine who the father of the child is.

Instead, the presumption in § l-206(b) is that [Father] consented to the artificial insemination process, making the child the legitimate child of [Father]. This presumption is not overcome by applying the Best Interests of the Child standard.... [Father] jointly engaged in efforts with [Mother] to create a child, and it is in the best interest of the child to receive support and care from both parents. (Emphasis added). The parties next appeared in the circuit court before Judge Angela M. Eaves on December 17, 2012, for a hearing on the pendente lite establishment of custody and child support.

On the same day just before the hearing, Mother filed an amended complaint for limited divorce seeking sole legal and physical custody of the minor child, child support, and injunctive ²³² relief pursuant to FL § l-203(a)(2). 5 In support of the amended complaint, Mother cited to a then existing Final Protective Order issued by the District Court for Harford County requiring Father to vacate the home and stay away from Mother, contending Father constructively deserted her by causing her to flee the marriage in order to preserve her health, dignity, safety and welfare. At the hearing on December 17, Father maintained that he did not recognize the minor child as his child and was not seeking custody or visitation. Declining to revisit the issue of legal paternity, the circuit court found that Father—who, as discussed in detail infra, was currently unemployed—had voluntarily impoverished himself, and the court addressed the proper amount of child support based on imputed income. The circuit court stated: I am making a finding that [Father] is voluntarily impoverished, first stating that he is not going to support [the minor child] in any way; second, from then having other assets and resources at his disposal that he has chosen to use only for his benefit, but not necessarily even in a way that’s financially prudent.

Based on its findings, the circuit court entered a temporary order as to child support on January 8, 2013. The temporary order, among other things, granted sole physical and legal custody to Mother, and ordered Father to pay child support in accordance with the Maryland guidelines and payment of arrearages in the amount of $7,171.00. On May 22, 2013, the parties went to trial solely on the issue of divorce. The circuit court noted at the outset that there were no further issues regarding property and no claim for alimony.

Remaining issues regarding parentage, support, and ²³³ injunctive relief were reserved for a subsequent hearing. 6 After limited testimony from Mother and another witness, the circuit court entered an order granting absolute divorce on June 19, 2013. 7 The circuit court hearing from which this appeal was taken was held on February 5, 2014. Again, Father requested that the court revisit the issue of legal parentage, but the court refused stating: “[t]hat has already been adjudicated ... with an order back in the fall of 2012 and no one has appealed from that order.” Although Father was employed again by the time of the hearing, he continued to dispute the court’s finding of voluntary impoverishment in its temporary order issued January 8, 2013. The court refused to revisit the previous finding of voluntary impoverishment but determined to rule on the issue prospectively. Father, a college graduate and long-time employee of Sysco Food Services as a marketing and sales associate earning approximately $49,000.00 per year (partially based on commission), 8 testified that he was unemployed from ²³⁴ mid-November 2012 until he accepted a position as a route sales driver for Schwan Home Food Service on December 16, 2013.

Father admitted that during his period of unemployment he received unemployment benefits and income from a rental property he owns. Father also presented the circuit court with copies of his completed “Work Search Contacts” forms logging his efforts to obtain employment while receiving unemployment benefits. On cross-examination, however, Father admitted to making only 90 employment contacts during his extended period of unemployment, some of them repetitive. When questioned as to why he had not made more contacts or submitted more applications, Father responded, “[bjecause I was just working the way that I wanted to work my unemployment.” Further, Father acknowledged that, for eight days he had a position as a trainee with Business Machines, but according to a document from Business Machines, his position was terminated after Father requested that they enter a later start date for him so that he could continue to be certified for unemployment.

Father does not dispute that he made the request, but maintains that he did so because he was not guaranteed any income during his training period. Regarding Mother’s request that the circuit court grant injunctive relief to protect Mother from physical harm or harassment by Father, Mother testified as follows: [Father] has approached me on multiple occasions. In August he would circle around me at church. I stopped going to church for a while.

I went back to church and then I went to two separate events, one in October ... outside. [Father] circled around my daughter and I and another friend 10-15 times within arm’s reach. First he was doing it behind me so I couldn’t see him ... [a]nd then he circled around. * * ❖ ²³⁵ [I]n November, we were at a missions event in church and [Father] saw that we were there.... He came into line right behind me and I said “Stephen, leave.” I said it firmly. And he just looked at me and smiled.

Then I said, “you need to leave.” And then he laughed and finally left. His physical proximity, size, his closeness to me are a threat. That is upsetting and intimidating and I don’t want to be that close to him. I don’t want him coming within arm’s reach of me.

I feel like he approaches me and pushes it and then tries to intimidate. Notably, Mother presented no objection to Father’s continued attendance at the same church; when required she simply moves to the other side of the room. At the conclusion of the hearing, the circuit court ruled on the record. With respect to child support, the circuit court considered numerous factors and found that Father had voluntarily impoverished himself through what the court termed “a pattern of ... not wanting to pay child support for a child already determined to be his.” Imputing an income consistent with Father’s prior employment, the court calculated a child support obligation of $1,007.00 per month effective from November 1, 2013.

Regarding the requested injunctive relief, the circuit court stated: [Father’s] credibility suffers with this Court. The manner in which he testifies, his ability only to recall events favorable to him in this case and the fact that he is less than honest in his dealings with respect to [Mother].... Circling around her when he knows that she is present.... There is a protective order in place.

Getting in line behind her when you know it is her means that you walk away because there is a protective order in place. This court did not have to find, in extending the protective order, that there was a violation of that order---- But the Court extended the protective order for good cause shown[.] ²³⁶ * * # I do think that [Father] is playing fast and loose with the Court’s order in this matter and accordingly, I’m going to order him to stay 75 yards away from [Mother] and the children and to have no contact. The circuit court signed an order memorializing its oral rulings in the hearing on February 7, 2014 (entered on February 10, 2014). On February 25, 2014, Father filed a timely Notice of Appeal from the orders of the circuit court dated October 11, 2012, May 13, 2013, June 14, 2013, and February 7, 2014.

We include additional facts in the discussion relevant to the issues there examined. DISCUSSION As a preliminary matter, we address Mother’s contention that the circuit court’s October 11, 2012, order establishing Father’s legal paternity and responsibility for support was a final order from which Father should have noted a separate timely appeal. Under Maryland Code (1974, 2013 Repl. Vol.), Courts and Judicial Proceedings Article (“CJP”) § 12-301 “a party may appeal from a final judgment entered in a civil or criminal case by a circuit court.” “In determining whether a particular court order or ruling is appealable as a final judgment, we assess whether any further order was to be issued or whether any further action was to be taken in the case.” In re Katerine L., 220 Md.App. 426, 437 , 103 A.3d 1144 (2014) (citing In re Samone H., 385 Md. at 298, 869 A.2d 370 ).

It is beyond doubt that the circuit court’s rulings regarding legal parentage and the obligation to provide support were part-and-parcel with the further action required in this divorce and child support case. Accordingly, the October 11, 2012, order lacks that requisite character of finality. Father’s “Motion for Determination of Question of Law” was filed pursuant to Maryland Rule 2-502, which provides, in pertinent part: ²³⁷ If at any stage of an action a question arises that is within the sole province of the court to decide ... and if it would be convenient to have the question decided before proceeding further, the court, on motion or on its own initiative, may order that the question be presented for decision in the manner the court deems expedient. This rule differs from summary judgment in that it is not intended as a device for dismissing cases.

Harris v. Stefanowicz Corp., 26 Md.App. 213, 218-19 , 337 A.2d 455 (1975). “Properly invoked, the rule unquestionably enables a [court] to decide a purely legal issue as a preliminary matterf, and] [i]n the usual case, application of the rule will result in a bifurcated proceeding, where resolution of certain legal questions precedes resolution of issues which must be tried.” Id. at 220 , 337 A.2d 455 . We have acknowledged that the application of Rule 2-502 may, in some cases, conclude the case, id., and, where the resulting order is in the nature of a final decree, an appeal may lie from that order, see, e.g., Bender v. Schwartz, 172 Md.App. 648 , 917 A.2d 142 (2007) (reviewing de novo the circuit court’s decision where, by agreement of the parties, the circuit court decided all the issues before this Court, not on a motion to dismiss, but under Maryland Rule 2-502, and dismissed the underlying complaint). However, a Rule 2-502 proceeding on an issue of law cannot normally be appealed until the conclusion of the entire litigation. Harford Sands, Inc. v. Levitt & Sons, Inc., 27 Md.App. 702, 709 , 343 A.2d 544 (1975) (stating that an order which merely decides a legal issue in the ease, “but does not decide the entire cause of action, is not a ‘final judgment upon’ a ‘claim for relief,’ and therefore an appeal from such an order will not lie”).

Thus, at the time of Father’s motion, both parties were aware that—whatever the decision of the circuit court on the legal question—further proceedings would be necessary for the resolution of the divorce complaint. Because the order of the court as to legal parentage was not dispositive of any claim for relief, no immediate appeal was required. ²³⁸ Although we note, without deciding, that an interlocutory-appeal pursuant to CJP § 12-303(3)(x) 9 may have been an option for Father, Maryland Rule 8—131(d) provides: On an appeal from a final judgment, an interlocutory order previously entered in the action is open to review by the Court unless an appeal has previously been taken from that order and decided on the merits by the Court. Thus, the circuit court’s October 11, 2012, order is properly before this court on appeal following the circuit court’s final judgment in the divorce, custody, and support case. I. IVF and Legal Parentage Father contends that the circuit court erroneously equated artificial insemination with IVF in applying ET § 1—206(b).

Father argues that the two processes are physically and scientifically distinct, and, while there is a “historical understanding about the meaning of ‘artificial insemination,’ ” the statute was passed at a time when IVF was not yet practiced. Mother counters that through the use of the term “artificial insemination,” which was “at the forefront of reproductive technology” when the subsection (b) was added Section ET § 1-206, the General Assembly “contemplated the role of nontraditional conception of a child as it pertains to a parent’s rights and obligations.” Presumption of Legitimacy As a threshold matter, the question of paternity raised in this case is governed by the Estates and Trusts Article because the child was born during the marriage. ²³⁹ Turner v. Whisted, 327 Md. 106, 113 , 607 A.2d 935 (1992). ET § 1-206 creates a presumption of “legitimacy” for children born to a married mother. 10 Evans v. Wilson, 382 Md. 614, 624 , 856 A.2d 679 (2004). In contrast, the Paternity Act, codified at Maryland Code (1984, 2012 Repl.

Vol.), Family Law Article §§ 5-1001 et seq., is aimed at addressing putative fathers in regard to children born outside of marriage. Turner, 327 Md. at 113 , 607 A.2d 935 (citing Stubbs v. Colandrea, 154 Md.App. 673, 688 , 841 A.2d 361 (2004)). The Court of Appeals has determined that when paternity is in question for a child born during a marriage, the Estates and Trusts Article applies “because it presents the ‘more satisfactory* and ‘less traumatic’ means of establishing paternity.” Ashley v. Mattingly, 176 Md.App. 38, 58 , 932 A.2d 757 (2007) (quoting Evans, 382 Md. at 628 , 856 A.2d 679 ). Subsection (b) extends the presumption of legitimacy to “[a] child conceived by artificial insemination of a married woman with the consent of her husband.” ET § l-206(b).

Subsection (b) was added in 1969, when the General Assembly repealed the “Testamentary Law” title and enacted the “Decedents Estates” title (then Maryland Code Art. 93 § 1-206). 1969 Laws of Maryland ch. 3. The presumption created by ET § 1-206 is only set aside where the court has “weighted] the various interests of the parties and, in particular, considered] whether blood or genetic testing [to establish or disestablish parentage] would be in the best interests of [the child].” Evans, 382 Md. at 629 , 856 A.2d 679 . 11 ²⁴⁰ Here, Father attempts to rely on In re Roberto d.B., 399 Md. 267 , 923 A.2d 115 (2007), to assert that “this case is not to be governed by the best interests of the child standard,” but rather, the test to be applied here is whether Father is genetically related to the minor child. In re Roberto d.B., is not controlling, however, because in that case the Court of Appeals addressed the legal parentage of a child bom out-of-wedlock in the context of the Paternity Act (FL §§ 5-1001 et seq.). 399 Md. at 279 , 923 A.2d 115 . In In re Roberto d.B., the appellee contracted to carry in vitro fertilized embryos to term as a genetically unrelated gestational host and gave birth to twins. 399 Md. at 270 , 923 A.2d 115 .

Neither the appellee nor the appellant wanted the gestational carrier’s name to be listed on the birth certificates as the “mother” of the children. Id. at 272 , 923 A.2d 115 . Nonetheless, the Maryland Division of Vital Records, having received information from the hospital regarding the births, listed the appellee as “mother.” Id. at 271-72 , 923 A.2d 115 . In the circuit court, the parties requested “an ‘accurate’ birth certificate, i.e., one that did not list the gestational carrier as the children’s mother.” Id. at 273 , 923 A.2d 115 .

However, the circuit court denied that request. Id. On appeal, the parties’ primary contention was that the paternity act, as enforced by the trial court, did not afford equal protection of the law to similarly situated men and women. Id. at 274 , 923 A.2d 115 . “The appellant contend[ed] that because Maryland’s parentage statutes allow a man to deny paternity, and do not, currently, allow a woman to deny maternity, these statutes, unless interpreted differently, are subject to an [Equal Rights Amendment] challenge.” Id. at 275 , 923 A.2d 115 .

Applying Maryland’s Equal Rights Amendment (E.R.A.), Article 46 of the Maryland Declaration of Rights, the Court of Appeals determined that paternity statutes must apply equally to both males and females, and the process by which males can challenge paternity can also be employed by females to challenge maternity. Id. at 283 , 923 A.2d 115 . ²⁴¹ In that case, presented with an unmarried, gestational surrogate, not genetically related to the children, the Court of Appeals determined that it must “constru[e] the parentage statutes [in the Family Law Article] in a way that affords women the same opportunity to deny parentage as men have.” Id. at 279 , 923 A.2d 115 . In Re Roberto d.B., did not, as Father contends, indicate that genetics is the sole standard for determining disputed parentage in Maryland. It merely extended to women the right to dispute parentage through genetic testing where that right already existed for men.

In Re Roberto d.B., is well-removed factually from the present case, and lends no support to Father’s argument that the use of IVF, rather than artificial insemination is a legally significant distinction placing this case outside the bounds of ET § 1-206. We note that, under Father’s argument, any parent not genetically related to a child could disestablish parentage and, thereby, avoid any obligations of support. Clearly the equal rights analysis of In Re Roberto d.B. would have to extend to mandate that where Father may disestablish parentage presumed under ET § 1-206 for lack of a genetic link, so too might Mother. The result, here, would be a child with no legally responsible guardian and an automatic ward of the State.

Furthermore, Father’s reasoning, if accepted, could be extended to exclude a non-genetic parent in a marriage from establishing legal parentage of a child born in the marriage unless such a parent petitioned to adopt the child—a process not currently required or considered normal practice. We determine that Father’s interpretation, detrimental to the exercise of