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.




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