Off. of Child Support Enf. v. Lovick , 238 Md. App. 476 ( 2018 )

PG Co. Child Support v. Lovick, No. 198, September Term 2017. Opinion by Nazarian, J.
FAMILY LAW – AFFIDAVIT OF PARENTAGE/ACKNOWLEDGMENT OF
PATERNITY – CHOICE OF LAW/FULL FAITH AND CREDIT
An affidavit of parentage/acknowledgment of paternity from another jurisdiction has the
same force and effect as an affidavit of parentage/acknowledgment of paternity signed
and executed in Maryland. The foreign affidavit is subject to the same terms of
modification and rescission as a Maryland affidavit under paternity proceedings in
Subtitle 10 of the Family Law article.
Circuit Court for Prince George’s County
Case No. CAS13-34966
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 198
September Term, 2017
______________________________________
PRINCE GEORGE’S COUNTY OFFICE OF
CHILD SUPPORT ENFORCEMENT EX REL
v.
MICHAEL LOVICK
______________________________________
Eyler, Deborah S.,
Graeff,
Nazarian,
JJ.
______________________________________
Opinion by Nazarian, J.
______________________________________
Filed: August 30, 2018
2018-08-30
15:47-04:00
The Prince George’s County Office of Child Support Enforcement (the “Office”)
appeals an order of the Circuit Court for Prince George’s County setting aside affidavits of
parentage that Michael Lovick had executed in the District of Columbia, where his long-
time girlfriend had given birth to twins, and striking an earlier order requiring him to pay
child support. The Office claims that the circuit court failed to extend full faith and credit
to the D.C. affidavits and that the passage of more than two years precluded Mr. Lovick
from seeking to set them aside. Mr. Lovick responds that his child support obligations are
controlled by Maryland law, which allows a court to set aside a declaration of paternity
after a court-ordered genetic test excludes him as the twins’ father, as a test did here. We
agree with Mr. Lovick and affirm.
I. BACKGROUND
On October 4, 2011, Mr. Lovick’s girlfriend, Angela Rice, gave birth to twin girls
(“the twins”) at Georgetown University Hospital in the District of Columbia. Mr. Lovick
and Ms. Rice lived in Prince George’s County at the time the twins were born, and both
live there still. Two days after the twins’ birth, Mr. Lovick signed, at the hospital, an
Acknowledgment of Paternity (the “Acknowledgment” or the “affidavit”) stating that he
was the twins’ father. As part of the Acknowledgment, Ms. Rice affirmed that Mr. Lovick
was the only possible biological father of her children.
The couple separated, and in February 2013, Ms. Rice filed a complaint in the circuit
court seeking custody of the twins. She and Mr. Lovick later agreed to share legal custody
and that Ms. Rice would have primary physical custody. After they entered this agreement,
Mr. Lovick contacted the Office to initiate a child support case. A child support action was
initiated,1 and in February 2014, Mr. Lovick agreed to pay $1,500 per month in child
support.
In May 2016, Mr. Lovick filed a motion to establish paternity in both cases and
requested a court-ordered genetic test. This motion followed Mr. Lovick’s discovery that
Ms. Rice had been involved sexually with another man around the time the twins were
conceived and the results of private genetic testing that revealed Mr. Lovick was not the
twins’ father. The circuit court denied the motion.
On September 16, 2016, Mr. Lovick filed a new motion in the child support case to
set aside the Acknowledgment on the basis of fraud. After a hearing in December, the
circuit court ordered genetic testing and scheduled a follow-up hearing. The test results
excluded any possibility that Mr. Lovick was the twins’ father. And at the hearing, the
circuit court agreed with Mr. Lovick that Ms. Rice had committed fraud:
Ms. Rice said he is the only possible father. And it’s quite
apparent that that was a lie. That was an out and out lie…. It’s
obvious that it’s not Mr. Lovick. It’s obvious that she lied on
the affidavit… I can’t, in good conscience, let Ms. Rice falsify
that affidavit and charge this man with child support.
On March 28, 2017, the circuit court entered an order setting aside the Acknowledgment
of Paternity and striking the February 2014 child support order. The Office filed a timely
appeal.
II. DISCUSSION
The Office challenges, on three grounds, the circuit court’s decisions to set aside the
1
Case No. CAS13-34966.
2
Acknowledgment of Parentage and strike the child support order.2 First, the Office
contends that the court should have applied the law of the District of Columbia, which
prohibits challenges to Affidavits of Parentage more than two years after execution, and
dismissed Mr. Lovick’s motion to set aside his Affidavit. By applying Maryland law, the
Office argues, the circuit court failed to extend full faith and credit to the Affidavit. Second,
the Office asserts that Mr. Lovick could not prove fraud, duress, or a material mistake of
fact in connection with the Affidavit. And third, the Office argues that Mr. Lovick is
estopped from disclaiming the twins’ paternity because, in the custody case, he had sought
to increase his visitation with them after he learned that he was not their father.
“When the trial court’s decision involves an interpretation and application of
Maryland statutory and case law, our Court must determine whether the lower court’s
conclusions are legally correct.” Clickner v. Magothy River, 424 Md. 253, 266
(2012) (cleaned up). We will not set aside a circuit court’s fact findings unless they are
clearly erroneous, Clickner, 424 Md. at 266, but we review questions of law de
2
In its brief, the Office phrased its Questions Presented as follows:
1. Did the circuit court err when it failed to extend full faith
and credit to the District of Columbia’s legal findings of
paternity resulting from Mr. Lovick’s execution of District of
Columbia affidavits of parentage and set the affidavits aside in
violation of District of Columbia law?
2. Did the circuit court err as a matter of law when it set aside
Mr. Lovick’s affidavits of parentage for the twins despite his
failure to establish fraud, duress, or material mistake of fact?
3. Was Mr. Lovick judicially estopped from challenging his
paternity of the twins given his efforts to obtain increased
visitation with them in the Custody Case?
3
novo. Harvey v. Marshall, 389 Md. 243, 257 (2005). Here, neither party disputes that Mr.
Lovick is not the twins’ biological father—the questions before us concern the circuit
court’s authority to set aside the Affidavit of Parentage he executed right after they were
born.
Mr. Lovick Was Entitled To Seek To Have The Affidavit Set Aside.
There is no doubt that Mr. Lovick signed the Affidavit, or that it states plainly that
the “signed and notarized [affidavit] constitutes a legal determination of paternity” and
“creates legal rights and obligations relating to the child, and may impact custody, child
support and visitation.” The Office argues that because the twins were born in the District
of Columbia and Mr. Lovick executed the Affidavit in the District, his ability to rescind
the Affidavit or have it set aside is controlled by District of Columbia law.
Under D.C. law, Mr. Lovick had sixty days to rescind his signature. D.C. CODE
ANN. § 16-909.01(a-1). After sixty days have passed, an affidavit “legally establish[es] the
parent-child relationship between the father and the child for all rights, privileges, duties,
and obligations under the laws of the District of Columbia,” D.C. CODE ANN. § 16-
909.01(b), and may be challenged only if the signatory can prove fraud, duress, or material
mistake of fact. D.C. v. D.H., 140 Daily Wash. L. Rptr. 2117 (D.C. Super. Ct. 2012). After
two years, the presumption of paternity becomes conclusive and can be challenged only on
even narrower grounds not relevant here. D.C. CODE ANN. § 16-2342(c). Moreover,
District of Columbia courts have held that a putative father cannot seek a court-ordered
genetic test in order to determine whether he is the child’s biological father after two years
have passed, regardless of whether genetic tests excluded the man as a possible father.
4
Virginia DeHart v. Lewis Ruffin, 143 Daily Wash. L. Rptr. 2329 (D.C. Super. Ct. 2015).
So if D.C. law controls Mr. Lovick’s ability to have the Affidavit set aside, his 2016 filings
are too late.
The Office points to the Full Faith and Credit Clause, Article IV of the United States
Constitution, which provides that
Full faith and credit shall be given in each State to the public
Acts, Records and Judicial Proceedings of every other State.
And the Congress may by general Laws prescribe the Manner
in which such Acts, Records, and Proceedings shall be proved,
and the Effect thereof.
U.S. CONST. ART. IV; see also 28 U.S.C. § 1738 (2003) (“[J]udicial proceedings . . . shall
have the same full faith and credit in every court within the United States . . . as they have
by law or usage in the courts of such State . . . from which they are taken.”). As the
Supreme Court explained in Magnolia Petroleum Co. v. Hunt, the Clause ensures that a
judgment from one state receives the same treatment in all states:
[T]he clear purpose of the full faith and credit clause [is] to
establish throughout the federal system the salutary principle
of the common law that a litigation once pursued to judgment
shall be as conclusive of the rights of the parties in every other
court as in that where the judgment was rendered.
320 U.S. 430, 439–40 (1943) (emphasis added). As such, judicial findings of fact by
another state’s court, as well as conclusions of law, get full faith and credit in Maryland
(absent circumstances not relevant in this case). Dackman v. Dackman, 252 Md. 331, 336
(1969), rev’d on other grounds, Eastgate Assoc. v. Apper, 276 Md. 698 (1976); see also
Underwriters Nat’l. Assurance Co. v. North Carolina Life and Accident and Health Ins.
Guaranty Assoc., 455 U.S. 691, 704 (1982) (“[T]he judgment of a state court should have
5
the same credit, validity, and effect, in every other court of the United States, which it had
in the state where it was pronounced.”) (cleaned up). To be sure, a foreign judgment may
also be challenged when it conflicts with the public policy of Maryland. See Malik v. Malik,
99 Md. App. 521, 534 (1994) (“[W]here [a foreign] judgment is . . . against public
policy . . . it will not be given any effect by our courts.”).
There is also a federal statutory overlay. In order to receive federal funding, each
state must “develop and use an affidavit for the voluntary acknowledgment of paternity[.]”
42 U.S.C. § 666(a)(5)(C)(iv), and have laws that “give full faith and credit to such an
affidavit [i.e., a voluntary acknowledgment of paternity] signed in any other State
according to its procedures.” Id. A signed voluntary affidavit of paternity thus is
“considered a legal finding of paternity[.]” 42 U.S.C. § 666(a)(5)(D)(ii).
Maryland implemented these requirements in FL § 5-1048:
A finding of paternity established in any other state shall have
the same force and effect in a proceeding under this subtitle as
in any other civil proceeding in this State if:
(1) with respect to an adjudication of paternity, the finding was
established by a court or by an administrative process that
includes a right to appeal to a court; or
(2) with respect to a finding of paternity that is based on an
affidavit of parentage, the affidavit was signed after each
signatory to the affidavit was advised of their legal rights.
MD. CODE ANN., FAMILY LAW ART. (“FL”) § 5-1048 (emphasis added).
But no District of Columbia judgment established Mr. Lovick’s parentage or
obligation to pay child support. D.C. supplied the Affidavit, which has a certain legal
significance under the Maryland child support enforcement statutes that the Office seeks
6
to enforce here. Consistent with federal law, “[a]n executed affidavit of parentage
constitutes a legal finding of paternity, subject to the right of any signatory to rescind the
affidavit.” FL § 5-1028(d). After sixty days, “an executed affidavit of parentage may be
challenged in court only on the basis of fraud, duress, and a mistake of material fact.” Id.,
(d)(2)(i). Unlike D.C. law, though, Maryland law does not preclude challenges after two
years: to the contrary, a declaration of paternity may be modified or set aside “if a blood or
genetic test done in accordance with § 5-1029 of this subtitle establishes the exclusion of
the individual named as the father in the order.” FL § 5-1038(a)(2)(i)(2).
And for that reason, the Full Faith and Credit Clause is not implicated here.
Maryland law does, as federal law requires, give legal effect to the Affidavit—it establishes
paternity, as a Maryland affidavit would, and sixty days after execution, it shifts the burden
of proving fraud or duress or mistake of fact onto Mr. Lovick. But neither a Maryland nor
D.C. affidavit would, by itself, create a child support judgment, and the mere fact that the
affidavit came from elsewhere doesn’t vitiate Mr. Lovick’s statutory opportunity to modify
the paternity finding now.
He followed the law and met his burden. After learning that the twins may not be
his biological children, he asked the court, under FL § 5-1029, to order a genetic test. The
court ordered the test, see Faison v. MCOCSE ex rel. Murray, 235 Md. App. 76, 83 (2017),
and the results conclusively eliminated him as the twins’ father. At that point, and because
there was no suggestion that he acknowledged paternity knowing that he was not the father,
the court could set aside the Affidavit and strike the child support order grounded in it. See
FL § 5-1038(a)(2).
7
This latter point distinguishes this case from Burden v. Burden, 179 Md. App. 348
(2008). In that case, the father met and married the mother in South Dakota years after she
gave birth to a son. Id. at 351. Although the father knew that he was not the boy’s biological
father, he nevertheless signed and filed in South Dakota a paternity affidavit
acknowledging himself as “the natural father.” Id. Three years later, the couple separated,
and the mother initiated child support and divorce proceedings in Maryland. The circuit
court found that the South Dakota paternity affidavit was not a court judgment entitled to
full faith and credit and excluded the boy from the child support order because the father
was not his biological father. Id. at 352. The Court of Appeals reversed, holding that the
father’s paternity had been determined conclusively. Id. at 369. The Court opted not to
determine whether South Dakota or Maryland law applied, but applied both and reached
the same result: the father would not be allowed to challenge paternity under South Dakota
law because three years had passed, and he had no right to do so under Maryland law
because he knew he was not the father at the time he signed the affidavit. Id. at 368–69.
Burden recognizes that an affidavit of parentage from a foreign jurisdiction has the
same weight and effect as a Maryland affidavit in paternity proceedings under Subtitle 10
of the Family Law article, such as a child support case, but is subject to Maryland law for
terms of modification and rescission. Burden, 179 Md. App. at 368 (“Under a literal
reading, FL § 5-1048 does not apply here. The divorce action there was not a paternity
proceeding under Subtitle 10, ‘Paternity proceedings.’ If FL § 5-1048 does apply, then the
force and effect of the finding of paternity based upon voluntary acknowledgment is set
forth in FL § 5-1028(d)[.]”); see also FL § 5-1048 (“A finding of paternity established in
8
any other state shall have the same force and effect in a proceeding under this subtitle[.]”)
(emphasis added). But this case did arise under Subtitle 10—it’s a child support
enforcement action that involves Maryland resident parents and the same circuit court that
entered the child support order in the first place. Under Maryland law, Mr. Lovick had a
statutory right at least to attempt to prove fraud, duress, or material mistake of fact that
Mr. Burden would not have had, assuming Maryland law had applied in that case. The
court-ordered genetic test proved that Mr. Lovick is not the twins’ father, and the record
supports the circuit court’s finding that the Affidavit and resulting finding of parentage
should be set aside on the basis of fraud, and the 2014 child support order stricken.
Finally, we disagree that Mr. Lovick’s efforts to maintain joint custody and enforce
visitation, and even his motion for contempt against Ms. Rice, estopped him from seeking
to terminate his child support obligation. Until the circuit court found that he was entitled
to set aside the Affidavit, he was legally the twins’ father, and he had had a relationship
with them since birth. That relationship obviously is changing, and may even be coming to
an end. The circuit court will need to decide in the first instance whether, in light of our
decision today, it should modify or terminate Mr. Lovick’s custody or visitation going
forward, and we express no views on the merits of those different and important questions.
But with the custody/visitation and child support proceedings in parallel, in separate actions
on separate schedules, we see no basis on which we could find on this record that any
inconsistencies between his positions at different points in time misled the court or placed
the Office or Ms. Rice at an unfair disadvantage. Montgomery Cty. Pub. Sch. v. Donlon,
9
233 Md. App. 646, 674–75 (2017). The circuit court was not misled, and nor are we.
JUDGMENT OF THE CIRCUIT COURT
FOR PRINCE GEORGE’S COUNTY
AFFIRMED. APPELLANT TO PAY
COSTS.
10