Stubbs v. Colandrea

RODOWSKY, Judge. Appellant, Kevin Wayne Stubbs (Mr. Stubbs), brought this action alleging that he is the biological father of, and seeking visitation with, Jonnie Lynn Colandrea (Jonnie), a child conceived and born during the marriage of the appellees, Janie Marie Colandrea (Mrs. Colandrea) and David Colandrea (Mr. Colandrea). After the Circuit Court for St. Mary’s County denied the blood test requested by Mr. Stubbs and also denied his request for a declaration of paternity, Mr. Stubbs noted this appeal. For the reasons hereinafter set forth, we shall affirm.

The appellees were married May 15, 1998. Their daughter, Jessie, was born April 2, 1990, and their son, Devyn, was born October 8, 1994. Jonnie was born January 25, 1998. Preceding Jonnie’s birth the appellees, Jessie, and Devyn resided in Chesapeake Beach in a home that was across the street from that of Mr. Stubbs’s father, where Mr. Stubbs was residing.

Apparently as a result of Mr. Colandrea’s drinking, the appel-lees were separated on four occasions in the period from 1995 through 1999, but they have been “back together” since January 2000. Mr. Stubbs filed the instant action on April 7, 2000, requesting that an “appropriate” blood test be ordered. 1 In anticipation that he would be determined to be the father, he further requested a court-structured visitation schedule. His complaint named only Mrs. Colandrea as a defendant, but Mr. Colandrea intervened in the action. ⁶⁷⁶ The request for a blood test was referred to a master who took testimony for two days. There was conflicting testimony concerning the relationships between Mr. Stubbs and Mrs. Colandreá and between Mr. Stubbs and Jonnie.

The evidence also dealt with Jonnie’s relationships with Jessie, Devyn, Mr. Colandrea, and Mrs. Colandrea. Those relationships within the Colandrea family were the subject of testimony by a child psychologist. The master, applying a best interests of the child standard, recommended that the request for a blood test be denied. After the unfavorable report and recommendation from the master, Mr. Stubbs changed counsel, who filed exceptions to the master’s report.

These exceptions included a challenge to using the best interests of the child standard for determining whether a blood test should be administered. Argument on the exceptions was had before Judge John Hanson Briscoe, who denied all of them. The parties then agreed to submit the issue of paternity for decision by the court, based upon the record made before the master. The court (Judge Karen H. Abrams) concluded that it was not in Jonnie’s best interest to declare Mr. Stubbs to be her biological father.

The court further held that Mr. Stubbs had failed to overcome the presumption that Mr. Colandrea is Jonnie’s biological father. In his brief on appeal to this Court, Mr. Stubbs makes a number of arguments, which we believe fairly may be distilled into the five contentions set forth below: I. The circuit court could not refer the request for a blood test to a master; II. An attorney should have been appointed for Jonnie; III. Whether a blood test should be administered is controlled by the “Paternity Act,” Maryland Code (1984, 1999 RepLVol.), Title 5, Subtitle 10 of the Family Law Article (FL); IV.

A best interests of the child standard should not be used to determine whether a blood test should be administered; and ⁶⁷⁷ V. Even if a best interests standard is applicable, the circuit court abused its discretion in its application of that standard in this case. Additional facts will be stated as necessary in our analysis of the arguments presented. I. Use of Master Mr. Stubbs submits that this case is a paternity action and that, under Maryland Rule 9 — 208(a)(1), it may not be referred to a master, because paternity actions are not listed in that rule. Rule 9 — 208(a)(1) in relevant part provides: “If a court has a full-time or part-time standing master for domestic relations matters and a hearing has been requested or is required by law, the following matters arising under this Chapter shall be referred to the master as of course unless the court directs otherwise in a specific case: [Thereafter subparagraphs (A) through (J) set forth certain types of proceedings, none of which is a paternity action.] “(K) such other matters arising under this Chapter and set forth in the court’s case management plan filed pursuant to Rule 16-202 b.” We perceive no error.

In overruling Mr. Stubbs’s exception, the circuit court concluded that referral to a master was appropriate under its “differentiated case management plan [and] the relevant statutes and rules[.]” Because Mr. Stubbs has not presented in this record the differentiated case management plan for the Circuit Court for St. Mary’s County, we are unable to determine whether a paternity action falls under Rule 9 — 208(a) (1) (K). In any event, Rule 9-208 is not a prohibition against referral to a master of proceedings that are not listed therein. If a paternity action is not referable “as of course” to a master, it nevertheless may be so referred by an exercise of the court’s discretionary power under Rule 2 — 541 (b)(2). The latter rule permits referrals to a master of any matter or issue, other ⁶⁷⁸ than one specified in Rule 9-208, which is “not triable of right before a jury.” II.

Counsel for Child Jonnie should have been made a party, Mr. Stubbs submits, and counsel should have been appointed to represent her, particularly because the court applied a best interests of the child standard in determining whether a blood test would be ordered. The circuit court, in denying this exception, pointed out that Mr. Stubbs had not raised the issue prior to or at the master’s hearing. Nevertheless, the court concluded that Jonnie’s interests were adequately represented. In this Court Mr. Stubbs asserts that under Rule 2-211(a) it was the responsibility of the trial court to assure complete joinder.

That rule provides for joinder of a person as a party if, inter alia, “(2) disposition of the action may impair or impede the person’s ability to protect a claimed interest relating to the subject of the action[.]” Rule 2-211 further states that “[t]he court shall order that the person be made a party if not joined as required by this section.” Joinder of Jonnie was not required by Rule 2-211; rather, joinder through the medium of appointment of counsel was discretionary. In Turner v. Whisted, 327 Md. 106 , 607 A.2d 935 (1992), involving a claim of paternity by a third party to a marriage, the Court of Appeals remanded for a balancing of the interests of the asserted father and the interests of the child, when determining whether to order a blood test. Noting that the child was not a party to the action, the Court of Appeals said that the trial court “might even appoint counsel to represent [the child’s] interests if it believes that those interests might be compromised by the blood test. If [the child’s] best interests would be jeopardized by submitting to a blood test, the child’s representative may then request a protective order.” Id. at 116 , 607 A.2d at 940 .

In the case before us, the court, at the exceptions hearing, concluded that ⁶⁷⁹ Jonnie’s interests had been adequately presented to the court by the child psychologist who had examined Jonnie. There was no abuse of discretion.

III

The Paternity Act Mr. Stubbs argues that FL § 5-1029 of the Paternity Act governs whether the blood test should have been administered. Under that provision, blood tests are mandatory, if requested by a party. FL § 5-1029(b); Langston v. Riffe, 359 Md. 396, 429, 435 , 754 A.2d 389, 406-07, 410 (2000). In Turner, supra, the Court of Appeals held that the request for blood tests, sought by a man attempting to establish that he was the biological father of a child born during the marriage of the mother and her husband, was to be decided by applying Maryland Code (1974, 2001 Repl.Vol.), § 1-208 of the Estates and Trusts Article (ET) and Maryland Rule 2-423.

Further, in making that determination, the best interests of the child standard was to be applied. Turner, 327 Md. at 117 , 607 A.2d at 940 (“[Tjhe trial court could have, and should have, held a hearing to determine whether ordering the blood tests would be contrary to [the child’s] best interests”). In Langston v. Riffe the Court of Appeals reviewed Turner and two other cases in which a best interests analysis had been applied, Monroe v. Monroe, 329 Md. 758 , 621 A.2d 898 (1993), and Sider v. Sider, 334 Md. 512 , 639 A.2d 1076 (1994). 2 The Court said that “[g]iven the ‘unique’ circumstances of Sider , as well as Turner and Monroe , we chose not to apply or extend their holdings further than the unique facts of those cases.” Langston, 359 Md. at 432-33 , 754 A.2d at 408-09 (footnote omitted). The instant matter is within the unique facts of Turner .

As a basis for court ordered visitation, Mr. Stubbs seeks a blood ⁶⁸⁰ test to establish his paternity of a child conceived and born during the marriage of the appellees. Thus, Turner ordinarily would be dispositive of this argument by Mr. Stubbs. Citing provisions of the Paternity Act, however, Mr. Stubbs argues that paternity cannot be decided without first scientifically establishing the identity of the biological father. Among the cited statutes is FL § 5-1002, which was amended by adding subsection (c) after Turner was decided.

Accordingly, we must address that amendment. 3 FL § 5-1002(c) reads: “Nothing in this subtitle may be construed to limit the right of a putative father to file a complaint to establish his paternity of a child.” FL § 5-1002(c) seems to expand the operation of FL § 5-1029(b), which reads: “On the motion of the Administration, a party to the proceeding, or on its own motion, the court shall order the mother, child, and alleged father to submit to blood or genetic tests to determine whether the alleged father can be excluded as being the father of the child.” (Emphasis added). Analysis of the impact of this amendment requires consideration of the legal background on which it was superimposed. Part of that background is ET § 1-208, which provides in relevant part: “(a) Child of his mother. — A child bom to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of his mother. “(b) Child of his father. — A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of his father only if the father: ⁶⁸¹ “(1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings^]” In Thomas v. Solis, 263 Md. 536 , 283 A.2d 777 (1971), the Court of Appeals held that a predecessor statute to ET § 1-208 was not limited to matters of inheritance and could be used affirmatively to establish paternity. The putative father-plaintiff in that case alleged that the three children there involved had been conceived by him and born while he and their mother were cohabiting while unmarried.

Subsequently, the mother terminated the relationship, but she left the children in the care of the plaintiff. Later, the mother married a third person and obtained a court order awarding her custody of the children. In his complaint, which the Court of Appeals held to state a justiciable issue, the putative father sought not only a declaration of paternity, out of concern that the mother’s husband might adopt the children without notice to the plaintiff, but also a declaration of his responsibilities. Id. at 537, 545, 283 A.2d at 778, 782 .

Taxiera v. Malkus, 320 Md. 471 , 578 A.2d 761 (1990), involved a mother who was unmarried when her child was conceived and bom. She contended that the father was a man who had died four months before the child’s birth. The mother sought a paternity declaration in an action predicated on ET § 1-208, but she also filed under the Paternity Act. Both proceedings were brought against the estate of the putative father.

The reported case is the appeal from the dismissal of the Paternity Act proceeding. The Court of Appeals held that, although it was clear that ET § l-208(b) is a legitimating statute, a harmonious reading of that statute with the Paternity Act compelled the conclusion that the circuit court could determine, in the paternity action, whether the putative father was the biological father of the child, and that this ruling could be made without regard to whether the court could enter a support order against the estate of the putative father. Id. at 481-82, 578 A.2d at 766 . ⁶⁸² Both Thomas v. Solis and Taxiera v. Malkus dealt with children bom out of wedlock. Complexities arise, however, when a man asserts that he is the biological father of a child bom, or, as here, conceived and born, during the marriage of the mother to a different man.

That complexity was presented in Turner.; supra, in which the Court first addressed how a biological father potentially could acquire rights with respect to a child born during the marriage of the mother to another man. Quoting the dissent by Justice Brennan in Michael H. v. Gerald D., 491 U.S. 110 , 109 S.Ct. 2333 , 105 L.Ed.2d 91 (1989), the Court of Appeals said: “ ‘[Although an unwed father’s biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so. When an unwed father demonstrates a full commitment to the responsibilities of parenthood by com[ing] forward to participate in the rearing of his child ... his interest in personal contact with his child acquires substantial protection under the Due Process Clause.’ ” Turner, 327 Md. at 115-16 , 607 A.2d at 940 (quoting Michael H., 491 U.S. at 142-43 , 109 S.Ct. at 2352 , 105 L.Ed.2d at 118-19 ) (citations, footnote, and internal quotations omitted). The precise issue in Turner was whether the plaintiff was entitled to a blood test to determine the fact of his self-asserted paternity.

To resolve that issue the court initially addressed whether ET § 1-208 or the Paternity Act governed. If the former applied, there was a presumption of legitimacy, because the child was bom during the mother’s marriage. See ET § l-206(a) (“A child born or conceived during a marriage is presumed to be the legitimate child of both spouses”). In contrast (but not articulated in the Turner opinion) the facts of that case gave rise to no presumption of legitimacy under the Paternity Act.

See FL § 5-1027(c)(1) (“There is a rebut-table presumption that the child is the legitimate child of the man to whom its mother was married at the time of concep ⁶⁸³ tion”). Further, under ET § 1-208, the authority to order a blood test rests on a discovery request under Maryland Rule 2-423, for a physical examination, and requires good cause to be shown. Turner, 327 Md. at 113-14 , 607 A.2d at 938-39 . On the other hand (although unarticulated in the Turner opinion) if the vehicle for the paternity determination was the Paternity Act, a blood test would have been mandatory.

See FL § o-1029(b). Because ET § 1-208 presented “the ‘more satisfactory’ and ‘less traumatic’ means of establishing paternity,” the Turner Court held that the appropriate vehicle for establishing paternity is ET § 1-208 in a case in which a third party asserts that the presumed father is not the biological father. Turner, 327 Md. at 113 , 607 A.2d at 938 . Applying the appropriate statute, ET § 1-208, the Turner Court further held that, in determining on remand whether a blood test should be ordered, the trial court 1. “should consider the extent of [the third party’s] commitment to the responsibilities of parenthood, and balance his interest in establishing his status as [the child’s] natural father against the [parents’] interest in protecting the integrity of the familial relationships already formed.

This balance of interests should be considered in connection with the court’s paramount concern of protecting [the child’s] best interests.” Id. at 117 , 607 A.2d at 940 . Thereafter, Chapter 609 of the Acts of 1997 (Senate Bill 636) added subparagraph (c) to FL § 5-1002, quoted above. The purpose clause of the bill states, inter alia, that it was for the purpose of “clarifying that a putative father may file a paternity action.” 1997 Md. Laws, Chap. 609, at 3333. Although “putative father” is not a defined term in the Paternity Act, the quoted term has a settled legal meaning.

Black’s Law Dictionary defines “putative father”