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Tyrone W. v. Danielle R., No. 6448, September Term, 1998

HEADNOTES: PATERNITY DECLARATION -- FINALITY -- STATUTORY INTERPRETATION REVISORY POWER OF THE COURT UNDER 1995 AMENDMENT TO SECTION 51038(a)(2)(i)(2) OF THE FAMILY LAW ARTICLE: 1995 revision of section 5-1038(a)(2)(i)(2) permitting court to modify or set aside an enrolled paternity judgment upon scientific proof that the adjudged father of the child is not the biological father of the child operates retroactively to permit modification or vacation of paternity declarations entered prior to the effective date of the statutory amendment. Court's exercise of revisory power is discretionary. PATERNITY ACTION -- MOTION FOR BLOOD OR GENETIC TESTING UNDER SECTION 5-1029 OF THE FAMILY LAW ARTICLE: Upon a preliminary showing that blood or genetic testing under section 5-1029 of the Family Law Article will establish that he is not the biological father of the child, the adjudged father in a paternity action is entitled to an order directing the mother and child to submit to blood or genetic testing. PATERNITY ACTION -- WAIVER OF RIGHT TO BLOOD OR GENETIC TESTING UNDER SECTION 5-1029 OF THE FAMILY LAW ARTICLE: Failure to move for blood or genetic testing at inception of paternity action, standing alone, is not sufficient to establish waiver of right to seek and obtain blood or genetic testing after enrollment of paternity judgment. PATERNITY DECLARATION -- REVISORY POWER OF THE COURT UNDER 1995 AMENDMENT TO SECTION 5-1038(a)(2)(i)(2) OF THE FAMILY LAW ARTICLE: Ordinary diligence of party seeking to set aside enrolled paternity judgment is relevant to the court's determination whether to exercise its revisory power. Amount of time between date of entry of subsequently enrolled judgment and date on which motion to revise is filed is not per se evidence of lack of ordinary diligence.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 6448 September Term, 1998

TYRONE W.

v.

DANIELLE R., et al.

Wenner, Kenney, Byrnes, JJ. Opinion by Byrnes, J. Filed: December 3, 1999

The Circuit Court for Talbot County denied appellant Tyrone W.'s motion for blood or genetic testing and to set aside an enrolled declaration of paternity respecting T.R., a male child. Tyrone challenges those rulings in this appeal, in which T.R.'s mother, Danielle R., and the Talbot County Bureau of Support Enforcement ("Bureau") appear as appellees. Because we conclude

that the lower court erred in denying Tyrone's request for blood or genetic testing, we shall vacate the judgment of the circuit court, and remand the case for further proceedings.

FACTS
Danielle gave birth to T.R. on January 8, 1989. Four months

later, on April 27, 1989, Danielle and Tyrone entered into a written agreement ("Agreement") in which Tyrone acknowledged

paternity of T.R. and promised to pay $35.00 per week in child support and a portion of T.R.'s medical expenses not covered by insurance.1 On May 3, 1989, Danielle filed a paternity action in the Circuit Court for Talbot County. The action was filed with the It

consent of the Talbot County State's Attorney's Office.2

contained a "Notice to Defendant" advising Tyrone of his right to

The Agreement was entered into as a "voluntary support agreement" pursuant to Md. Code (1984, Repl. Vol. 1999),

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