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Circuit Court for Anne Arundel County Case No. C-97-42595 DV

IN THE COURT OF APPEALS OF MARYLAND No. 58 September Term, 1999

STEPHEN MARKOV v. ROBIN MARKOV

Bell, C.J. Eldridge Rodowsky Raker Wilner Cathell Harrell, JJ.

Opinion by Raker, J. Bell, C.J., concurs in the judgment only Eldridge, J., dissents

Filed: August 23, 2000

The parties in this appeal, Stephen Markov, Appellant, and Robin Markov, Appellee, were granted an absolute divorce by the Circuit Court for Anne Arundel County, as sought by Appellee, on December 28, 1998, just three days after the twelfth birthday of twin girls who were born during the first year of the couple's marriage. Presented for our review is the propriety of the Circuit Court's finding that Appellant is equitably estopped from denying paternity of the two girls and its concomitant decision awarding Appellee child support as part of the relief that she requested in her divorce action. In addition to concluding that the Circuit Court incorrectly formulated its estoppel of Appellant on the issue of paternity and improperly issued a ruling as to Appellant's non-paternity of the children, we shall hold that Appellant may not be estopped from denying a duty to pay child support until Appellee establishes financial detriment.

Factual Background Appellant and Appellee were married in Baltimore County on Valentine's Day in 1986. A little over ten months later, on Christmas Day of that same year, Appellee gave birth to twin girls, Amanda and Kelly. Despite these seemingly blessed beginnings, the parties' relationship unfortunately did not prove to be everlastingly blissful. In the summer of 1992, Appellee confessed to having had a short-lived, extramarital liaison with a college student some two weeks after her wedding day.1 This revelation significantly underscored Appellant's earlier uncertainty about his paternity of the two girls, arising from the fact that he had undergone a vasectomy sometime prior to the wedding.

There exists some confusion within the record and the parties' briefs as to when Appellee informed Appellant of her adultery and the associated doubt as to, if not negation of, Appellant's paternity of the twin girls. Most of the testimony and excerpts from the briefs indicate or refer to the summer of 1992 as the time of disclosure, yet, in other parts, the year is professed to be 1991.

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Over the next few years, the couple endured periodic episodes of separation, of varying but always short duration, until March of 1997, when the parties separated permanently. Although Appellant and Appellee remained apart since that time, Appellant voluntarily made support payments to Appellee until October of 19972 and continued a paternal relationship with the twin girls, either through actual visitation or telephone calls, until May of 1998, when he stopped all contact with them. Insofar as the parties' pleadings and testimony on various factual occurrences and conversations conflict, and given that the Circuit Court did not issue specific findings of fact, it is unclear whether either person, for a significant part of their early marriage, was completely sure as to the veracity vel non of Appellant's status and representation as the twin girls' father. In any event, with respect to the later years of their marriage, both parties have believed for a long time, at least since 1992, that Appellant is not the children's biological father. The parties steadfastly abide by this position even though, according to the record, no scientific evidence confirming (or refuting) such has ever been produced or even procured.

Procedural Background In initiating the divorce action, Appellee alleged in her "Complaint for Limited Divorce and Other Relief" that the twin girls "were born to the parties as a result of their marriage." As part of her demand for relief, Appellee requested that "she be awarded child support pursuant to the Maryland Child Support Guidelines." In timely fashion, Appellant filed a written answer generally denying a great majority of

The parties differ on the purpose of these payments. Appellant maintains that he sent money simply to help "pay the bills;" Appellee contends that the contributions were directed expressly to the support of the two girls.

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Appellee's allegations. At the same time, Appellant filed a motion pursuant to Maryland Rule 2-423 asking the Circuit Court to issue an order requiring that the parties "and the alleged children of the marriage submit to a blood test for purposes of determining paternity." Appellee submitted a written answer to Appellant's motion stating that "a blood test for paternity is entirely unnecessary . . . as paternity is not an issue in this case and it is admitted and established that [Appellant] is not the biological father of the two (2) minor children."3 In addition, Appellee asserted that Appellant "should be estopped from denying that he has held himself out as the father of the two (2) minor children and that he is the only father that the children have known."4 On February 2, 1998, the Circuit Court directed as follows: As [Appellant] requested a hearing, and given that the blood tests could in fact be/or lead to, a final disposition of the claim, or defense to a part of the claims, the matter needs a hearing. Schedule the Motion for Blood Test before any judge. Nevertheless, it appears that a hearing on the motion for blood tests was never conducted. By way of a letter to the Circuit Court dated January 30, 1998, Appellant, the party who had requested the hearing, seemingly waived the hearing as unnecessary in stating, "In as much as [Appellee] confirmed that

At the end of her "Answer to Motion for Order for Blood Test," Appellee attached a proposed order for the Circuit Court's consideration, to the effect "that [Appellant]'s Motion For Order For Blood Test be denied as [Appellant] is not the biological father of the two (2) minor children born during the parties' marriage and paternity is not at issue in this case." Despite the more limited, and perhaps ineffectual, estoppel arguably sought by Appellee's pleading in her answer to Appellant's motion for the blood test, it is clear that the Circuit Court interpreted her pleading as a request that Appellant be equitably estopped from denying paternity of the twin girls altogether and absolutely. Indeed, in her later filings to the Circuit Court, Appellee requested "[t]hat the court find that [Appellant] by virtue of his actions is estopped from denying that he is the `father' of the two minor children."
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[Appellant] is not the father of her children, there now appears to be no issue as to [Appellant]'s lack of biological parentage in this case; and [Appellant] would appreciate the Judge signing the proposed Order, accordingly."5 The Circuit Court subsequently denied Appellant's motion for the blood test, issuing an order dated March 9, 1998 that stated in part: 1. That [Appellee, Appellant] and the previously alleged children of the parties are not required to submit to a blood test for purposes of determining paternity in light of Plaintiff's Answer admitting and confirming that the Defendant is in fact not the biological father of the two (2) children, namely: Amanda Markov and Kelly Markov; 2. That [Appellant] be and is hereby determined and ruled not to be the biological father of the said two (2) children, namely: Amanda Markov and Kelly Markov. By this order, Appellant's non-paternity was thus established for purposes of the case to the satisfaction of the Circuit Court as well as, apparently, to the satisfaction of Appellee, but not to that of Appellant. Despite the Circuit Court's declaration that he was not the biological father of the two girls, Appellant renewed his request "[t]hat the Court pass an Order requiring the parties and the alleged children of the marriage to submit to a blood test to determine paternity of the said children." The litigation then continued as to whether Appellant should be ordered by the court to continue to pay child support.6

Although the letter indicates that Appellant's "proposed Order" was "[e]nclosed herewith," the record furnished to this Court does not include such an order proposed by Appellant. Consequently, we can only speculate as to what Appellant had in mind. A factual assertion that Appellant appears to have maintained throughout the litigation of the present case is that, up until the time of being ordered to do so, he has never provided child support per se, that whatever monetary contributions he made were not directly in support of the children. See, e.g., supra note 2 and accompanying text.
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Appellee requested in her "Supplemental Complaint for Absolute Divorce and Other Relief," filed April 16, 1998, that the court order Appellant to continue to pay child support under a theory of equitable estoppel. Specifically, Appellee argued that, because Appellant "was aware that he was not the natural father of the two minor children born during the marriage, . . . held himself out as the children's father and has contributed to the monetary and non-monetary support of the minor children both during the time that the parties lived together as husband and wife and after the parties separated," and because "[f]or the children's entire life, they have believed that [Appellant] is their father and have maintained a relationship in that capacity throughout and until the filing of this [litigation]," the court should rule that Appellant "by virtue of his actions is estopped from denying that he is the `father' of the two minor children." Appellant filed a written response denying that he was aware of his non-paternity and that he held himself out as the girls' father, asserting that his monetary and non-monetary contributions were directed "to the support of the marriage," as opposed, presumably, to the support of the children, and stating that he could "not attest to what the minor children of [Appellee] believed." In addition, Appellant highlighted and incorporated the Circuit Court's March 9, 1998 order, which he characterized as "finding that [Appellant] is not the biological father" of the two girls. Appellant further asserted that, because he does not fit within the definition of a "parent" under the Child Support statute, he "therefore is not legally responsible for the payment of child support, as a `parent.'" Finally, Appellant pointed out that Appellee's formulation of a child support obligation on his part under a theory of estoppel was made "without providing any legal authority for such an assertion." In a subsequent filing, Appellant reasserted his demand that a blood test be performed on all the pertinent persons, as noted above.

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On May 8, 1998, the Circuit Court ordered that the case be set for hearing "on all open matters." Accordingly, on December 7, 1998, the Circuit Court held a hearing. The court filed a written opinion on December 23, 1998, holding that Appellant is equitably estopped from denying paternity of the twin girls. Thereafter, the court issued a "Judgment of Absolute Divorce," stating that "all issues pertaining to the [twin girls born during the course of the parties' marriage] will be addressed by this Court in a separate order . . . ." On January 16, 1999, Appellant first filed a Notice of Appeal, "from the final judgment entered in this action on December 28, 1998," referring to the Circuit Court's Judgment of Absolute Divorce. The record then indicates that, on February 5, 1999, the Circuit Court called the Markovs' case for a "Hearing on Support," that counsel were heard, that an agreement was placed on the record, and that Appellee's counsel was to prepare an appropriate order. On May 3, 1999, the Circuit Court issued an "Earnings Withholding Order," requiring Appellant to pay Appellee the sum of $697.36 per month or the sum of $162.18 per week for the support of "the parties' minor children, namely Amanda Markov and Kelly Markov." Twenty-five days later, on May 28, 1999, Appellant filed a second Notice of Appeal, "from the final judgment entered in this action on May 3, 1999." Prior to a decision by the Court of Special Appeals, this Court granted a writ of certiorari on its own initiative.

Analysis It behooves us to address two preliminary matters before reviewing the Circuit Court's finding of equitable estoppel in the present case. First, we conclude that it was beyond the authority of the Circuit Court to declare, by way of a preliminary order in Appellee's divorce proceeding, that Appellant is not the

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biological father of the twin girls. With respect to the issue now before this Court, the task of the trial court, as placed upon it by Appellee's divorce action and her related claims, concerned only whether Appellant has a duty to pay child support. Under the circumstances that Appellant's putative paternity, albeit a question of fact strenuously and repeatedly denied by both parties, was undeniably not the basis upon which Appellee asserted that Appellant had a duty to pay child support, and particularly where the Circuit Court was without the benefit of a blood test or other scientific investigation, it was error for the judge to announce a ruling as to Appellant's non-paternity. Indeed, under the centuries-old common law rule first promulgated by Lord Mansfield in 1777, a child born of a married woman is presumed to be the legitimate offspring of her husband. See Goodright v. Moss, 2 Cowp. 591, 592-94, 98 Eng. Rep. 1257, 1258 (1777) ("The law of England is clear that the declarations of a father or mother cannot be admitted to bastardize the issue born after marriage. . . . As to the time of the birth, the father and mother are the most proper witnesses to prove it. But it is a rule founded in decency, morality, and policy, that they shall not be permitted to say after marriage that they have had no connection, and therefore that the offspring is spurious."); see also Hale v. State, 175 Md. 319, 323, 2 A.2d 17, 19 (1938) ("[Lord Mansfield's Rule] has been adopted in Maryland and in many other states; however, qualifications have been applied to the rule, so rationalizing it that, in this state and elsewhere, the presumption of legitimacy may be overcome when common sense and reason requires that departure."); Staley v. Staley, 25 Md. App. 99, 102-03, 335 A.2d 114, 117 (1975) ("[Lord Mansfield's Rule], as formulated in Maryland, created a presumption that the child of a married woman was the legitimate issue of her husband, which presumption could be rebutted by clear and convincing testimony of a person other than the husband or mother, that the husband did not have intercourse with the

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mother at a time when conception of the child in question would have been possible."). The General Assembly has codified this common law rule in two separate statutes as a rebuttable presumption. See Maryland Code (1997, 1999 Repl. Vol., 1999 Cum. Supp.)

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