finding that a court has no discretion, under either § 12-104 or § 5-1038(b), “to ‘modify’ a child support order which is based on a vacated paternity judgment because the order itself is inextricably linked to the paternity declaration, its viability ... absolutely dependent on the viability of the paternity declaration”
How later courts described this case
- finding that a court has no discretion, under either § 12-104 or § 5-1038(b), “to ‘modify’ a child support order which is based on a vacated paternity judgment because the order itself is inextricably linked to the paternity declaration, its viability ... absolutely dependent on the viability of the paternity declaration”
- stating that “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”
- finding that a court has no discretion, under either § 12-104 or § 5-1038(b
- noting that where the order of the trial court “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”
Written by the judges who cited it.
The opinion
WILNER, Judge,
dissenting.
Despite Judge Cathell’s valiant attempt in Langston v. Riffe, 359 Md. 396 , 754 A.2d 389 (2000), to avoid the sorry result reached by the Court today, that result, unfortunately, was predictable, as, I fear, is the result in the next assault likely to be made on efforts to assure the decent support of children — the right of disavowing fathers to recover back from their children the meager support they actually may have paid. The decision today not only demonstrates how wrong the Court was in Langston , but egregiously compounds the error.
The Court says that it is not deciding the issue in this case, but, absent some additional legerdemain, on what basis will it hold that, with parenthood extinguished, the once-self-confessed father is retroactively relieved of all responsibility for court-ordered child support he failed to pay but cannot recover the same court-ordered child support that, through a newly asserted theory of fraud or mistake of fact, he did pay? If the Court, being intellectually honest, found no distinction, it *413 would be faced with the unattractive prospect of forcing mothers and children to repay support already duly paid and spent. If the Court, to avoid that tarpit, conceived some basis for drawing a distinction, it would have the equally pernicious effect of rewarding such fathers who fail to pay court-ordered child support. New of these men will read this opinion, of course, but the message will quickly spread: in paternity cases, you are a fool if you actually pay the child support. If there is even the slightest doubt in your mind regarding your paternity, consent to paternity, consent to pay child support, but don’t actually pay it. In the name of protecting the rights of men who father children and then walk away from them, the Court of Appeals has so dismantled the system for enforcing child support collection that, unless you are expecting a tax refund, are looking to win the lottery, or are truly concerned about driving on a suspended license, there will be no effective sanction, and, if the time ever comes, years later, when you may be held to account, ask for a blood test. If you are lucky, you will escape all responsibility and may, when the next case is decided, actually be able to force your child to return anything you were ever forced to pay.
The Legislature drew a balance when it enacted ch. 248 in 1995, permitting men to challenge paternity and support orders after their enrollment and, if excluded by blood or genetic test results, to avoid further responsibility for child support. That is a permissible legislative call. It is this Court that has made a mess of it, first by giving the statute a retroactive application and now by providing a powerful new incentive for men to ignore both the responsibility they voluntarily assumed and their obligation to obey court orders. No one forced Nicholas Todd Walter to admit that he was the father of Taylor Gunter. He obviously believed that he was the father and, if he had any doubt about the matter, as he now claims he did, he could have forced the mother to prove his paternity in court. Based solely on his own admission, that issue was never adjudicated, and he was ordered to pay $43/week for the support of the child, an amount he neither contested nor paid. The gross arrearage of $12,303, deter *414 mined as of September, 2000, indicates that he was about 286 weeks-five-and-a-half years — in arrears. And today, the Court rewards him for that defiance. Respectfully, I dissent.