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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 837 September Term, 1997

GARY H. SOWERS v. DONNA M. REED

Murphy, C.J., Wenner, Hollander, JJ.

Opinion by Wenner, J.

Filed: February 4, 1998

Appellant, Gary H. Sowers, appeals from a judgment of the Circuit Court for Baltimore City ordering him to pay child support arrearages accumulated while he was incarcerated. appellant presents us with the following question: "Whether the circuit court properly concluded that a parent who was incarcerated for nonsupport-related crimes is per se required to pay child support which accrued during his period of incarceration if during that period, his actual income was zero dollars ($0) per month?" For reasons that follow, we shall vacate the judgment of the Circuit Court for Baltimore City and remand the case to that court for further proceedings consistent with this opinion. Facts Although appellant and appellee were never married, they are the natural parents of Lauren Paige Sowers (Lauren), who was born in 1987, and Gary Houston Sowers II (Gary II), who was born in 1988. At the time that Gary II was conceived, appellee was married On appeal,

to Steven Geller. In February 1990, appellee filed two Paternity Petitions in the Circuit Court for Baltimore City claiming that appellant was the children's natural father. Appellant claims never to have been

served with either of these Petitions. In April 1990, appellant was incarcerated for three theft convictions, and violation of probation. Despite being

incarcerated in April 1990, a "Waiver of Rights by Defendant" signed by "Gary Sowers" was filed in both paternity cases, waiving

-2appellant's right to a trial, and admitting that he was the children's father. Appellant contends that he neither signed the In any

waivers, nor authorized anyone to sign them on his behalf.

event, two Decrees Determining Paternity were entered by the circuit court, naming appellant as the natural father of Lauren and Gary II, and ordering him to pay child support of $35 per week per child through the Bureau of Support Enforcement beginning 9 May 1990. That amount was to increase to $60 per week per child on Although both Decrees Determining Paternity are

1 August 1990.

signed by "Gary Sowers," appellant again denies signing them, or authorizing anyone to do so for him.1 Nonetheless, an order for a lien against earnings was

forwarded to W.F.G. Communication in Essex, Maryland. claims never to have worked for W.F.G. Communication.

Appellant

While appellant was incarcerated, and for approximately six months after his release, Lauren and Gary II each received from the Department of Social Services (DSS) the sum of $25 per week, amounting to $8,875 per child. When appellant was released on parole in May 1995, DSS sought to recover the sum of support it had provided the children. In

March 1996, appellant was notified that, pursuant to an intercept order, the Child Support Enforcement Administration was holding his

Appellant also claims he was never served with a writ of summons, a show cause order, or with any pleading relating to this case, and neither case file contains a sheriff's return indicating that personal service was accomplished.

1

-31995 federal and state income tax refunds, totaling $2,894. that month, appellant received a letter from the Later

Maryland

Department of Human Resources informing him that his child support payments were in arrears. Appellant later discovered that several

bench warrants had been issued by the circuit court in both paternity cases, charging him with contempt for failing to obey court orders. In April 1996, appellant filed a Motion to Terminate Child Support, Eliminate or Abate Arrearage, and Quash Contempt Warrant in both paternity cases. At a hearing in August 1996, appellant

testified that he was the children's father, but that he was unaware of the paternity cases until March 1996, or that there was an arrearage in child support. The circuit court concluded that

although appellant was the children's father, he had not been served with either Decree Determining Paternity, and that

enrollment of the decrees constituted a "substantial irregularity." Accordingly, the judge ordered that appellant's "child support arrearage reflected on the records of the Baltimore City Office of Child Support Enforcement be ... abated, subject to further order of court." All outstanding bench warrants were quashed, but

appellant's child support obligations were not terminated. A further proceeding was held on 11 December 1996, at which the presiding judge concluded that appellant was obligated to pay child support while incarcerated, despite his lack of income during

-4that period. Appellant was also ordered to reimburse DSS at the

rate of $15 per week, to increase to $30 per week, "[i]f the Court's determination of [appellant's] child support arrearage is sustained by the Court of Special Appeals ...." order rescinded appellant's "obligation to pay Moreover, the current child

support ... because ... the parties' minor [children are] in the care of [appellee], and ha[ve] been since 5 December 1996." Discussion Appellee contends that, because appellant failed timely to file a motion to modify the child support order, his child support obligations that accrued during his incarceration should not be reduced. Under Md. Code (1991),

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