Wiggins v. Griner

JAMES R. EYLER, Judge. In February, 1991, as part of a consent paternity decree entered by the Circuit Court for Baltimore City, Timothy Wiggins, appellant, was ordered to pay child support for a minor child born to Terri Griner, appellee. On February 11, 2002, appellant filed a motion to modify child support in circuit court, asking the court to order genetic testing to determine whether appellant is in fact the father of the child he had been ordered to support. The trial court ordered the testing, but required appellant to pay for the testing “up front.” Appellant challenges the circuit court’s denial of his motion to waive the costs of paternity testing.

Appellant argues that, because he is indigent, Maryland statutory law and federal Constitutional law require that Baltimore City bear the costs of this testing. The circuit court failed to make a factual finding regarding appellant’s indigency. Consequently, we shall vacate the order denying appellant’s motion and remand for a determination of indigency. Factual Background On February 1, 1991, appellee filed a paternity petition in circuit court, seeking to have appellant declared the father of her child, born September 3, 1990.

On the same day, the parties signed a consent paternity decree, whereby the circuit court gave custody and guardianship of the child to appellee and ordered appellant to pay $25 per week in child support, effective March 25,1991. ⁵³² On February 11, 2002, appellant filed a motion to modify his child support payments, requesting paternity testing of the parties and asking the trial court to modify his payments accordingly. In this motion, appellant stated that he is unsure whether he is the biological father of the child and that for seven years he had unsuccessfully attempted to request paternity testing through MAXIMUS/Baltimore City Office of Child Support Enforcement (MAXIMUS/BCOCSE). Further, appellant stated that he had never seen the child, nor had any contact with her, and that his last contact with appellee before filing the motion to modify was “sometime around 1989.” Appellant indicated in the financial statement attached to his motion that he had no income at the time of filing. Appellee filed an answer on March 14, 2002.

On July 19, 2002, a Master’s hearing was held on appellant’s motion. Thereafter, the trial court ordered the parties to submit to genetic testing, to be paid for by appellant “up front,” and ordered MAXIMUS/BCOCSE to complete an audit of the child support account by October 18, 2002. A hearing on the test results was scheduled for December 2, 2002. According to appellant, he was unable to pay for the paternity test.

He filed a motion for waiver of paternity testing costs on November 14, 2002, pursuant to Md.Code (1974, 1999 RepLVol.), § 5-1029(h)(2) of the Family Law Article. 1 Section 5-1029(h)(2) provides that, “[i]f any party chargeable with the cost of the blood or genetic test ... is indigent, the cost of the blood or genetic test shall be borne by the county where the proceeding is pending ...,” in this case, Baltimore City. Appellant attached a request for waiver of prepayment to his motion for waiver, stating that he was indigent. The December hearing was postponed so that the court could rule on the waiver issue. On November 21, 2002, the trial court denied appellant’s motion for waiver, stating only that “insufficient information” ⁵³³ was supplied.

Thereafter, appellant filed a Motion for revision of denial of waiver on February 4, 2003, stating again that he was indigent, and requesting that costs be waived and a hearing be held on the issue. On February 5, 2003, the court denied this motion without holding a hearing, stating only “see order dated July 24, 2002.” 2 Appellant filed a timely notice of appeal on March 4, 2003, and on April 8, 2003, the trial court granted appellant’s motion to stay the trial court’s proceedings. Standard of Review The Court of Appeals clearly outlined our standard of review with regard to interpreting whether a circuit court’s order was legally correct: “where the order involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are ‘legally correct’ under a de novo standard of review.” Walter v. Gunter, 367 Md. 386, 391-92 , 788 A.2d 609 (2002). Factual determinations made by the circuit court are reviewed for clear error.

Atty. Griev. Comm’n v. Granger, 374 Md. 438, 453 , 823 A.2d 611 (2003). Discussion Appellant contends that the circuit court erred in failing to grant his motion to waive paternity testing costs.

First, appellant argues the trial court violated § 5-1029(h)(2) in