Sieglein v. Schmidt , 224 Md. App. 222 ( 2015 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2616
September Term, 2013
STEPHEN SIEGLEIN
v.
LAURA SCHMIDT
Zarnoch,
Graeff,
Leahy,
JJ.
Opinion by Leahy, J.
Filed: August 25, 2015
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. 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:
1
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”) § 1-206(b)
applies to establish that 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
1
Father’s child from a previous marriage had reached the age of majority and did
not reside with the parties. Mother’s child from a previous relationship was still a minor
(continued . . .)
2
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, intracytoplasmic 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 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
and resided with the parties during the marriage.
3
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 certificate.4 Both parents participated in the care of the minor
child immediately following birth.
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
2
IVF, “in its simplest form, involves hormonal monitoring and stimulation of the
woman producing ova, harvesting the ova, mixing them with sperm in a petri dish
containing a culture medium, waiting for approximately three days for embryo
development, and then transferring one or more embryos, back to the woman.” Lyria
Bennett Moses, Understanding Legal Responses to Technological Change: The Example
of in Vitro Fertilization, 6 Minn. J.L. Sci. & Tech. 505, 510 (2005). Precise techniques
vary; however, as in the present case, an infertile couple may rely on the use of both
donated sperm and donated ova to produce a fertilized embryo for transfer to the infertile
woman's uterus. Keith Alan Byers, Infertility and in Vitro Fertilization A Growing Need
for Consumer-Oriented Regulation of the in Vitro Fertilization Industry, 18 J. Legal Med.
265, 274 (1997).
3
The circuit court’s Memorandum Opinion indicates that the parties signed the
necessary contracts and documents on February 25, 2010. Although neither party
disputes this date, we note only for exactness that the record contains documents
regarding Assisted Reproductive services that were executed by the Mother and Father on
January 20, 2010. Some of those forms were later signed by a physician on or about
February 18, 2010.
4
The certificate of live birth for the minor child was issued on July 25, 2012.
4
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.
5
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 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 § 1-206(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).
6
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 relief pursuant to FL § 1-203(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:
5
FL § 1-203(a) provides:
(a) In an action for alimony, annulment, or divorce, an equity court:
(1) has all the powers of a court of equity; and
(2) may issue an injunction to protect any party to the action from
physical harm or harassment.
7
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 injunctive relief
were reserved for a subsequent hearing. 6 After limited testimony from Mother and
6
On June 14, 2013, the circuit court issued an order clarifying the remaining issues,
which stated:
1. The Defendant denies and wishes to contest that he should be found the
father of the minor child, (d/o/b 3/25/12). 2. The Defendant in this case
specifically waives any claim or request for custody or visitation with the
minor child. 3. The Defendant also contests that he has any responsibility to
pay any child support and, even if he is ultimately found by this court to be
the father of the minor child, that he does not have the income or resources to
pay child support. 4. In the event that this court finds that the Defendant is
in fact the father of the minor child, Plaintiff seeks to pursue a position that
the defendant should be considered voluntarily impoverished. 5. At a later
time, the Plaintiff wishes to pursue as additional relief, Orders from this court
that the Defendant have no contact with her and that he be ordered not to
engage in any harassing conduct.
8
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 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
7
The order of absolute divorce was filed on May 28, 2013, but was not entered on
the docket for several weeks.
8
Father’s 2011 W-2 from Sysco Food Services reflected income in the amount of
$49,187.00. His 2012 W-2 from Sysco reflected year-to-date income in the amount of
$36,470.87 at the time of his October 5 resignation. At the December 17, 2013, hearing,
Father testified that the difference in income was a result of his 2011 income being based
on salary plus commission, while his 2012 income was commission only.
9
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, “[b]ecause 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.
***
[I]n November, we were at a missions event in church and [Father] saw that
10
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
11
good cause shown[.]
***
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 (2014)
(citing In re Samone H., 385 Md. at 298). It is beyond doubt that the circuit court’s rulings
regarding legal parentage and the obligation to provide support were part-and-parcel with
12
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:
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 (1975).
“Properly invoked, the rule unquestionably enables a [court] to decide a purely legal issue
as a preliminary matter[, 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. 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 (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,
13
Inc., 27 Md. App. 702, 709 (1975) (stating that an order which merely decides a legal issue
in the case, “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.
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.
9
CJP 12-303 provides, in pertinent part:
A party may appeal from any of the following interlocutory orders entered by
a circuit court in a civil case:
***
(3) An order:
***
(x) Depriving a parent, grandparent, or natural guardian of the care
and custody of his child, or changing the terms of such an order[.]
14
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 non-traditional
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. Turner v.
Whisted, 327 Md. 106, 113 (1992). ET § 1-206 creates a presumption of “legitimacy” for
children born to a married mother. 10 Evans v. Wilson, 382 Md. 614, 624 (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
10
It is worth noting that, although the question of parentage in this case is not
governed by the Family Law Article, FL § 5-1027(c)(1) also states: “[t]here is a
rebuttable presumption that the child is the legitimate child of the man to whom its mother
was married at the time of conception.”
15
born outside of marriage. Turner, 327 Md. at 113 (citing Stubbs v. Colandrea, 154 Md.
App. 673, 688 (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 (2007) (quoting Evans, 382 Md. at 628).
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 §
1-206(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 “weigh[ed] the various interests of the parties and, in
particular, consider[ed] whether blood or genetic testing [to establish or disestablish
parentage] would be in the best interests of [the child].” Evans, 382 Md. at 629.11
Here, Father attempts to rely on In re Roberto d.B., 399 Md. 267 (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
11
In Kamp v. Department of Human Services, the Court of Appeals advocated a
balanced approach reflective of “the court’s paramount concern of protecting [the child’s]
best interests” when determining whether a blood or genetic test should be ordered upon a
showing of good cause sufficient to overcome the statutory presumption. 410 Md. 645,
659-61 (2009) (quoting Turner, 327 Md. at 117).
16
Roberto d.B., is not controlling, however, because in that case the Court of Appeals
addressed the legal parentage of a child born out-of-wedlock in the context of the Paternity
Act (FL §§ 5-1001 et seq.). 399 Md. at 279.
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.
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. 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.
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. 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. “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. 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
17
challenge maternity. Id. at 283.
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. 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
18
practice. We determine that Father’s interpretation, detrimental to the exercise of
parental rights, was not intended by the General Assembly and is not recognized under
Maryland case law.
Artificial Insemination and IVF
Addressing the use of assisted reproductive services and a donated egg, the Court of
Appeals In re Roberto d.B. observed that “[t]he paternity statute, clearly, did not
contemplate the many potential legal issues arising from these new technologies, issues
that will continue to arise unless the laws are rewritten or construed in light of these new
technologies.” 399 Md. at 279. In contrast, ET § 1-206(b), which governs the legal
parentage of a child born during a marriage, plainly does contemplate such technologies
through its provision for children conceived via artificial insemination. The goal of any
statutory interpretation analysis is to give effect to the legislative purpose or policy
underlying the statute. Mayor & Town Council of Oakland v. Mayor & Town Council of
Mountain Lake Park, 392 Md. 301, 316 (2006).
Under Father’s interpretation of ET § 1-206(b), a child conceived via artificial
insemination with donated sperm would be a legitimate child of the marriage, while a child
conceived via IVF using the same genetic material would not. According to Father, “the
essential aspect of the ‘in vitro’ process is that it occurs outside of the woman’s body,
whereas, as the name literally describes, ‘artificial insemination’ necessarily takes place
within her body.” Moreover, Father urges, IVF is a comparatively recent innovation,
19
adding that ET § 1-206(b) was codified in 1969 and the first IVF did not take place for
another decade.
Despite Father’s assertion that the processes of artificial insemination and IVF are
“physically and scientifically distinct,” it is clear that either process may be executed using
donated genetic material. See, e.g., In re Roberto d.B., 399 Md. at 270 (artificial
insemination of a donated egg); L.F. v. Breit, 736 S.E.2d 711, 715 (Va. 2013) (in vitro
fertilization with donated sperm); Okoli v. Okoli, 963 N.E.2d 730, 731 (Mass. App. Ct.
2012) (in vitro fertilization using donor sperm and donor eggs). Artificial insemination
and IVF are two of many procedures used today that change or substitute for human
reproduction by sexual intercourse, and we are not called upon here to explore or explain
any scientific, practical or ethical distinctions. By enacting ET § 1-206(b), the General
Assembly evinced its intention to acknowledge the role of medically assisted,
non-traditional conception of a child in establishing a parent’s rights and obligations.
Under Maryland law, within the context of marriage, the precise physical procedure has
no necessary impact on the relationships of the parties involved—mother, father, and child.
Therefore, we interpret ET § 1-206(b) as also encompassing IVF, and hold that a child
conceived via artificial insemination or IVF with the consent of the parties and born during
a marriage is the legitimate child of the marriage and legal parentage is established as to
both spouses. In the matter before us, where Mother and Father were married at the time
of conception and birth, and willingly and voluntarily agreed to conceive a child through
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assisted reproductive services using anonymously donated genetic material, we hold that
ET § 1-206(b) applies to establish the legal parentage of both Mother and Father.
Cases from other jurisdictions have also recognized that a party’s consent to the
conception of a child via assisted reproductive services gives rise to the obligations and
rights of legal parentage. See, e.g., Okoli, 963 N.E.2d at 734 (citing Laura WW. v. Peter
WW., 51 A.D.3d 211, 215 (N.Y. 2008)). In Okoli, the parties consented to conceive twins
via IVF using donated eggs and donated sperm. Id. at 731. Like the Maryland statute,
the applicable statute in Okoli, on its face, only contemplated artificial insemination,
providing that “[a]ny child born to a married woman as a result of artificial insemination
with the consent of her husband, shall be considered the legitimate child of the mother and
such husband.” Mass. Gen. Laws Ann. ch. 46, § 4B. Nonetheless, the court equated “the
volitional act of sexual intercourse with the volitional act of providing a signature to
consent to the artificial insemination or embryo implantation,” and determined that where
such “volitional action resulted in the creation of a child . . . the law will attach parental
responsibility” pursuant to the statute. Id. at 734 (emphasis added).
In Maryland, the presumption of legal parentage established under ET § 1-206 may
only be rebutted after a showing that proceedings to disestablish parentage are in the best
interests of the child. See Evans, 382 Md. at 629. No argument has been made in this
case that setting aside paternity is in the best interests of the child. Certainly, it defies
sound public policy to create, through the strained application of a statute, a subset of
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children who—based on the specific physical method of their conception—“ha[ve] no
natural parents because we d[o]n’t know who the anonymous donors are.” As legal
parent of the minor child, born during his marriage, Father is “jointly and severally
responsible for the child's support, care, nurture, welfare, and education” under FL § 5-203.
II.
Injunction Pursuant to FL § 1-203
FL § 1-203 provides, in pertinent part:
(a) In an action for alimony, annulment, or divorce, an equity court:
(1) has all the powers of a court of equity; and
(2) may issue an injunction to protect any party to the action from
physical harm or harassment.
Father contends that, even viewed in the light most favorable to Mother, the
evidence adduced at trial failed to merit the grant of injunctive relief requested by Mother.
Father maintains that Mother failed to make any allegations of physical harm and that her
claims of harassment consisted of bare assertions. He also asserts that, given the lack of a
durational limit on the injunction, “the Chancellor went too far on too little evidence[.]”
Mother cites Magness v. Magness, 79 Md. App. 668, 675, cert. granted 317 Md.
440, appeal voluntarily dismissed by petitioner, 317 Md. 641 (1989), and Cote v. Cote, 89
Md. App. 729, 739 (1992), in support of the authority of the circuit court to issue the
protective injunctions in the present case. She argues that the primary goal of FL §
1-203(a)(2) is safety; therefore, where the previous protective order issued by the district
court failed to deter Father, and she had truthfully and credibly testified that she felt
22
harassed, intimidated, and threatened (when, for example Father approached Mother and
her daughter at an outdoor church event and “circled around [them] 10-15 times within
arm’s reach”).
The February 10, 2014, order of the circuit court provides:
ORDERED that Plaintiff is hereby GRANTED the injunctive relief
requested pursuant to [FL §] 1-203(a)(2); and it is further
ORDERED that Defendant shall not contact Plaintiff, in writing, verbally,
telephonically, through any third party, or in any other manner, and is to
remain 75 yards away from Plaintiff[.]
Notably, we are not addressing a typical interlocutory injunction to “preserve the
status quo during litigation.” Magness, 79 Md. App. at 678 (emphasis added). However,
the text of section 1-203 does not require that the injunction be interlocutory, nor does it
directly prohibit the issuance of a permanent injunction. We look to Magness and Cote, as
the circuit court did, in assessing the appropriate standards for issuing an injunction
pursuant to FL § 1-203(a)(2).
In Magness, we stated that “[t]he decision to grant or deny an interlocutory
injunction is within the sound discretion of the court.” 79 Md. App. at 678. In deciding
whether to exercise its discretion under section 1-203 the court first looks to whether there
will be irreparable injury to the moving party if the injunction is not granted. Cote, 89 Md.
App. at 735 (citing Magness, 79 Md. App. at 678). Regarding this first factor, in Cote we
noted that “[t]he trial court in its holding determined that there was a risk of irreparable
injury that could occur, namely, future physical abuse of and by both parties. This is the
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element of irreparable injury required by Magness.” Id. In the present case, the
determination of the circuit court that there was a likelihood of future harassment, as
contemplated in FL § 1-203(a)(2), supplies the element of irreparable injury.12
The second factor is that the issuance must not compromise the court's ability to
grant complete relief in the divorce action. Id. However, Father does not address the
second factor, and there is no indication in the record that a protective order keeping the
parties separated had any effect on the final judgments of the circuit court because those
judgments were rendered on the same day.
Turning to the evidence adduced in the matter now before us, although Mother did
not testify to physical abuse, the circuit court found Mother’s testimony regarding Father’s
harassing behavior to be credible. The circuit court found that Father was deliberately
putting himself in Mother’s proximity despite the existing protective order and with
knowledge of Mother’s subjective fear. The circuit court stated:
I don’t know how else to put this except that [Father] seems to believe that
because he and [Mother] attend the same church, if he puts himself in her
proximity the Court somehow will find that to be unintentional or accidental.
. . . There is a protective order in place. . . . I do think [Father] is playing fast
and loose with the Court’s order in this matter.
12
“Irreparable injury” has been defined as an injury “suffered whenever monetary
damages are difficult to ascertain or are otherwise inadequate.” El Bey v. Moorish Sci.
Temple of Am., Inc., 362 Md. 339, 355 (2001) (citation omitted); see also Dudley v. Hurst,
67 Md. 44, 52 (1887) (“An injury may be said to be irreparable when it cannot be measured
by any known pecuniary standard.”).
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The court also noted that Mother’s fear was subjectively reasonable. In contrast to
Mother’s testimony, the court found that Father’s testimony lacked credibility.
To determine that the circuit court abused its discretion we must find that it acted
“‘without reference to any guiding rules or principles,’ or that ‘no reasonable person would
take the view adopted by the [circuit] court,’ or that the decision of that court is ‘well
removed from any center mark imagined by the reviewing court and beyond the fringe of
what that court deems minimally acceptable.’” Michael Gerald D. v. Roseann B., 220
Md. App. 669, 686 (2014) (citations omitted). Here, we cannot say that the circuit court
abused its discretion when it determined, based on the evidence before it and its credibility
determinations, that an injunction aimed at preventing future harassment by Father and
irreparable injury was appropriate in this case.
III.
Voluntary Impoverishment
Finally, Father contends that the circuit court erred in finding him to be voluntarily
impoverished because, among other reasons, “the uncontradicted evidence [showed] that
he had lost his long time employment in October against his wishes,” and “he applied for
unemployment benefits in a timely manner.” Father also contends that the circuit court
erred in refusing to revisit the finding of voluntary impoverishment in the temporary
support order of December 2012, and compounded the mistake by finding him to be
voluntarily impoverished at the 2014 trial despite his recent re-employment.
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Mother counters that Father’s challenge to the temporary order is untimely, and that,
in any event, the circuit court acted within its discretion in determining Father’s “potential
income” 13 based on his employment potential and probable earnings level. Mother
argues that the circuit court reasonably concluded that Father had made the free and
conscious choice to render himself without adequate resources.
This Court in Goldberger v. Goldberger, 96 Md. App. 313, 327 (1993), defined
voluntary impoverishment, stating:
Accordingly, we now hold that, for purposes of the child support guidelines,
a parent shall be considered “voluntarily impoverished” whenever the parent
has made the free and conscious choice, not compelled by factors beyond his
or her control, to render himself or herself without adequate resources.
(Emphasis supplied). The factors to be considered in determining whether a parent is
voluntarily impoverished are:
(1) his or her current physical condition;
(2) his or her respective level of education;
(3) the timing of any change in employment or other financial circumstances
relative to the divorce proceedings;
(4) the relationship between the parties prior to the initiation of divorce
proceedings;
(5) his or her efforts to find and retain employment;
(6) his or her efforts to secure retraining if that is needed;
13
FL § 12-201(l) provides:
“Potential income” means income attributed to a parent determined by the
parent's employment potential and probable earnings level based on, but not
limited to, recent work history, occupational qualifications, prevailing job
opportunities, and earnings levels in the community.
26
(7) whether he or she has ever withheld support;
(8) his or her past work history;
(9) the area in which the parties live and the status of the job market there;
and
(10) any other considerations presented by either party.
Lorincz v. Lorincz, 183 Md. App. 312, 331 (2008) (citing Gordon v. Gordon, 174 Md. App.
583, 645 (2007)); Malin v. Mininberg, 153 Md. App. 358, 396 (2003). Additionally, in
Wills v. Jones, the Court of Appeals stated:
It is true that parents who impoverish themselves “with the intention of
avoiding child support ... obligations” are voluntarily impoverished. But, as
the court recognized in Goldberger, 96 Md. App. at 326-27, 624 A.2d 1328,
a parent who has become impoverished by choice is “voluntarily
impoverished” regardless of the parent's intent regarding his or her child
support obligations.
340 Md. 480, 494 (1995). Thus, it has been said that “voluntary impoverishment implies
some downward movement or at least a deliberate failure to move upward.” Lorincz, 183
Md. App. at 332. However, the subjective purpose of avoiding child support obligations
is not necessary. See Lorincz, 183 Md. App. at 334-35; see also Wills, 340 Md. at 494-95
(recognizing that parents who impoverish themselves for reasons unrelated to avoiding
child support nonetheless fall within class of persons to whom income can be imputed).
A trial court's factual findings on the issue of voluntary impoverishment of a parent,
for child support purposes, are reviewed under a clearly erroneous standard, and the court's
ultimate rulings are reviewed under an abuse of discretion standard. Long v. Long, 141
Md. App. 341, 351-52 (2001). In Durkee v. Durkee, we determined that, where “the
evidence showed, and trial court clearly believed, that appellant had the capacity to earn a
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substantial living, but had instead elected to pursue [a course resulting in] adverse financial
consequences to the family,” the court may consider an appellant's potential income and
earning capacity for purposes of calculating support obligations. 144 Md. App. 161, 178
(2002). In calculating potential income the court is entitled to consider the party’s prior
employment and education. Id. at 186 (citing Sczudlo v. Berry, 129 Md. App. 529, 544
(1999)). “[S]o long as the factual findings are not clearly erroneous, ‘the amount
calculated is ‘realistic’, and the figure is not so unreasonably high or low as to amount to
abuse of discretion, the court's ruling may not be disturbed.’” Id. at 187 (quoting Reuter v.
Reuter, 102 Md. App. 212, 223 (1994) (internal citation omitted)).
Here, Father was employed at Sysco Food Services throughout the duration of the
marriage and until he lost that job on October 5, 2012 (less than one week before he filed
his original motion contesting paternity). According to Father’s testimony, his
employment with Sysco was about to be terminated for failure to adhere to certain quotas
contained in an action plan for his job, and he resigned to protect his employment record.
At the time Father left employment with Sysco his year-to-date income was $34,575.00.
Father’s 2011 W-2 indicated a total annual income of $49,187.00.
From October 15, 2012, through November 15, 2012, Father secured part-time
employment as a marketing sales consultant for Harbor Spice, Inc., for which he was paid a
$3,000.00 consulting fee. Father also engaged in some part-time work with Van Diver
Inn until mid-November of 2012. Once his consultancy with Harbor Spice had
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concluded, Father filed for unemployment. Father’s initial unemployment application
was denied in December of 2012; however, Father appealed that decision and was awarded
unemployment benefits during 2013.14
According to the logs presented by Father, he made 36 contacts aimed at obtaining
employment from June 10, 2013, through September 19, 2013; and only 54 contacts from
November 2012 to May 2013, and his testimony reveals that some of those were repetitive.
Moreover, as noted above, once Father obtained employment with Business Machines, he
was quickly terminated through his own fault. On December 16, 2013, Father accepted a
position as a route sales driver for Schwan Home Food Service at a salary of $30,000.00.
Father also owns a residential property that, at the time of the December 17, 2012,
hearing, he was neither living in nor renting out. However, according to his testimony, he
had rented the property in the past for $1,150.00 a month. Rather than live in the property
himself, Father chose to rent another home. At the December 17, 2012, hearing, Father
testified that he was renting a home from a friend for $350.00 per month. At the
conclusion of that hearing, the circuit court found Father to be voluntarily impoverished for
the purposes of the temporary support order, and stated:
Why hasn’t [Father] taken advantage of [the empty rental property]. He has
that property available. He has a mortgage obligation of $800, but he chooses
to then spend $350 a month to live elsewhere when he could be limited to the
$800 a month and any other expenses as a result of residing in property that
14
Father testified that, during his period of unemployment, he received
$22,700.00 from unemployment and $14,000.00 from the rental property he owns.
29
he already has a mortgage on.
Ruling on the record, the circuit court announced the factors it considered:
[T]he Court has to consider the individual’s current physical condition,
prospective level of education, the timing of any change in employment or
financial circumstances relative to the proceedings, efforts to find and retain
employment, efforts to secure retraining, if that is needed, whether they have
ever withheld support, any relevant past work history, the areas in which the
parties live, and the status of the job market and any other considerations
presented by either party.
The circuit court found: (1) that no health condition precluded Father from full
employment; (2) Father possessed a level of education sufficient to work in a managerial
capacity; (3) the timing of Father’s failure to adhere to the action plan in his employment
with Sysco was indicative of a pattern of behavior aimed at not maintaining full
employment; (4) the relationship of the parties could only be described as acrimonious; (5)
Father’s efforts to obtain employment were repetitive and, once he found employment with
Business Machines, he was terminated for cause after trying to persuade the employer to
postdate his employment; (6) efforts to secure retraining were a non-factor; (7) Father had
continually sought to withhold support for the child, maintaining that he had no support
obligation despite that matter having already been adjudicated; (8) Father had been steadily
employed with the Sysco for years prior to putting himself in the position of being
terminated; (9) the local job market presented no problem in this case; and (10) this case
“has really been fraught with a pattern of [Father] not wanting to pay child support . . . for
a child already determined to be his.” Accordingly, the circuit court found Father to have
30
voluntarily impoverished himself and imputed income to him in the amount of his previous
employment with Sysco Food Services, $4,052.00 per month.
“Under the clearly erroneous standard, we look at the record in the light most
favorable to the prevailing party, and if there is any competent, material evidence to
support the circuit court's findings of fact, we cannot hold that those findings are clearly
erroneous.” Fitzzaland v. Zahn, 218 Md. App. 312, 322 (2014) (citation omitted).
Plainly, the circuit court considered all of the enumerated factors in its analysis, and,
viewing the evidence in the record in the light most favorable to Mother as the prevailing
party, we cannot determine that there is no competent material evidence to support the
findings of the circuit court. Therefore, we perceive no error in the circuit court’s
findings. In the context of its factual findings, the circuit court did not abuse its discretion
in finding Father to be voluntarily impoverished and, thereby, calculating his child support
obligation based on his reasonable imputed potential income.
JUDGMENTS OF THE CIRCUIT
COURT FOR HARFORD COUNTY
AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
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