Trembow v. Schonfeld

Annotate this Case

Download PDF

In the Circu it Court for F rederick C ounty Case No. C-03-2097 IN THE COURT OF APPEALS OF MARYLAND No. 64 September Term, 2005 ______________________________________ VICTORIA TREMBOW v. ALAN SCHONFELD ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. _______________________________________ Opinion by Wilner, J. Raker, J., D issents _______________________________________ Filed: June 8, 2006 The issue befo re us is whether the mother of a destitute adult child born out of wedlock is entitled to pu rsue a patern ity action against the man she now claims is the father of the child and collect child supp ort from him. The issue involves the interplay between the State paternity law (Maryland Code, §§ 5-1001 th rough 5-1 044 of th e Family Law Article) (FL), and the law requiring parents to support their destitute adult children (FL §§ 13-101 throug h 13-1 09). We shall conclude that the mother is not entitled to pursue a paternity action after the child has turned 18 and is n o longer in h igh schoo l.1 We shall point out, how ever, that (1) 1 FL § 5-203(b) makes the parents of a minor child, as defined in Art. 1 § 24 of the Code, jointly and severally responsible for the child s support, care, nurture, welfare, and education. Art. 1 § 24 provides: A perso n who h as attained the age of 18 years and w ho is enrolled in secondary school has the right to receive support and maintenance from both of the person s parents until the first to occur of the following events: (i) The person dies; (ii) The person marries; (iii) The person is emancipated; (iv) The pe rson gradu ates from o r is no longe r enrolled in se condary sch ool; or (v) The person attains th e age o f 19 year s. By reason of those statutes, the duty to support a minor child can actually extend for a period beyond the c hild s eightee nth birthday u ntil the child eith er is no long er in secondary school or turns 19. To the extent of that additional up-to-one-year period, that may have an effect on the validity or enforceability of the statute of limitations for bringing a p aternity action. Th e traditional no tion that the du ty to support a m inor child exists only until the child turns 18 is no longer entirely accurate in Maryland. Strictly for convenience, however, we shall use age 18 as the cutoff of the support obligation for minor children, to avoid having to repeat these various extensions and exceptions. -1- had paternity been established prior to that point, the mothe r would be entitled to seek child support for the destitute adult child, and (2) the child, directly or, if inc ompeten t, through a guardian, is independently entitled to seek to establish paternity prior to reaching that point and upon the ascertainment of paternity, to recover child support both during minority and, as a des titute adu lt child, th ereafte r. BACKGROUND In August, 2003, appellant Victoria Trembow, filed a complaint in the Circuit Court for Frederick Coun ty seeking child support from appellee, Alan Schonfeld. She allege d that, though never ma rried to each other, the pa rties had a c hild, Ivan, who was born in March, 1983. In 1996, she claimed, when Ivan was thirteen, he was diagnosed with a genetic degenerative bone disorder, as a result of which he had become permanently disabled before reaching the age of 18. The complaint alleged that Ivan resided with Ms. Trembow and, by reason of his physical disability, was unable to earn sufficient means to provide for himself. Implicit from the c omplaint, an d undispu ted, is that M s. Trembo w neve r sought to establish Schonfeld s paternity or collect child support from him prior to Ivan reaching eighteen. The reco rd indicates that, within six months after Ivan was born, Ms. Trembow married one John O Brien, and Ivan was raised as Ivan O Brien. Not until after the couple was divorced and Ivan reached eighteen did he change his name to Ivan Trembow. Ms. Trembo w averre d that Scho nfeld, in cor responde nce, had a cknow ledged him self -2- to be Ivan s father but had cons istently refused to provide su pport for Iv an though financially able to do so . Invok ing FL § 13-1 02, Ms. Trembow asked that the court establish Schonfeld s obligation to provide support, establish any arrearage, enter an earnings withholding order, and award her costs and other unspecified relief. The action was filed solely by Ms. Trembow, individually, not on behalf of Ivan, and the support she sought was to be paid to her, not to Ivan. Although she alleged Ivan s physical disabilities and that he suffered from depression, she did not alleg e that Ivan w as or had e ver been in compete nt to pursue his own action if he chose to do so. Schonfeld, a California resident, moved to dismiss the complaint on a number of grounds, including that the complaint was not timely filed, that Ms. Trembow had no standing to file such an action, that the action was not permitted by any statute, that the complaint failed to state a claim upon which relief could be granted, and that the plaintiff was equitably estopped from bringing the action. In June, 2004, the court gra nted the m otion to dismiss but gave leave to Ms. Trembow to file an amended complaint. The order dismissing the complaint does not specify any reason; nor is there anything else in the record to indicate on what ground(s) the complaint was dismissed. In July, 2004, Ms. Trembow filed an amended two-count complaint. Count II was a repetition of the claim for support pled in the initial complaint. Co unt I was a n action to establish Schon feld s p aternity. Ms. Trembow averred tha t Schonf eld s paternity n eeds to be determined so that Plaintiff can proceed with her request for child support for her disabled -3- adult child. As with the initial complaint, the action was brought solely by and for the benefit of Ms. T rembow . There is no indication that Ivan was seeking either to establish Schonfeld s paternity or to collect child support from him. Scho nfeld aga in respond ed with a motion to dismiss, contending, in addition to lack of jurisdiction and venue, that the action was not timely filed, that it failed to state a claim upon which relief could be granted, and estoppel. He argued that he had never acknowledged paternity or in any other way legitim ated Iv an and that the p aternity ac tion wa s barred by limitatio ns. After hearing argument, the court dismissed the amended complaint. Although the order does not sp ecify the grou nd(s) of the dismissal, the court s remarks from the bench indicate that the dismissal was based on a finding that the paternity action was barred by limitations. Ms. Trembow filed a motion to alter or amend the order of dismissal, in which she re-argued that the statute o f limitations on filing patern ity actions was n ot applicab le to actions involving a destitute adult child. She attach ed to the motion various letters and other correspondence from Schonfeld, which established, in her view , that Schon feld could not be said to have relied on not being Ivan s father. The motion was denied and the attached correspondence was stricken. Ms. Trembow appealed, and we granted certiorari prior to proceedings in the Court of Special Appeals. The one question presented in ap pellant s brief is wheth er an adult d isabled child may initiate proceedings for paternity and child support after his eighteenth birthday. That, unfortunate ly, is not the issue presented in this case. As noted, Ivan has not initiated any -4- proceedings for paternity or support, nor did Ms. Trembow file her action as guardian for or next friend of Ivan. The issue actually presented is whether Ms. Trembow, for her own benef it, is entitled to pursu e a pate rnity action after the child s e ighteen th birthd ay. DISCUSSION As noted, there are two sets of statutes that are relevant here FL §§ 13-101 through 13-109, establishing th e duty of pare nts to support th eir destitute adu lt children, and FL, §§ 5-1001 through 5-1044, which constitutes the paternity law and sets forth the procedure for establishing paternity. The two statutes are inextricably related in this case. Ms. Trembow has acknowledged that fact in her admission that she needed to establish Schonfeld s paternity so that sh e could pro ceed with her action f or suppor t. At common law, a parent had no duty to support an adult child a child who had reached the age of majority even if the child was disabled . See Smith v. Sm ith, 227 Md. 355, 359, 176 A.2d 862, 865 (1962 ); Borchert v. Borchert, 185 Md. 586, 590, 45 A.2d 463, 465 (1946). That obligation was first imposed, by statute, in 1947. The history and anteceden ts of that statute the one now codified in FL §§ 13-101 through 13-109 provide an enlig htening contex t for its stru cture, w ording , and ef fect. In 1896, the Legislature made it a criminal offense, punishable by a fine of $100 and one year imprisonment, for a man wilfully to desert or neglect to provide support and maintenance of his w ife or m inor ch ild. See 1896 Md. Laws, ch. 73. In 1916, the Legislature -5- made it a criminal of fense for an adult pe rson, able to do so, to fail to provide su pport to his or her destitute p arent. 2 On conviction, the adult child could be fined $500 and imprisoned for a year. See 1916 Md. Laws, ch. 637. The 1916 law permitted the court, either with the consent of the defendant or after conviction in lieu of punishment, to order the person to pay a weekly sum to the parent for up to two years. In that eve nt, the adult child was placed on probation; if the child violated the order, the probation could be revoked and sentence imposed. It was always clear that the obligation of parents to support their minor children could be implemented not just through the criminal statute, but also in equity proceedings actions for divorce or for support. When, in any such proceedin g, the court awarded custody of a minor child to one parent, it normally ordered the other, non-custodial, parent to pay child suppo rt to the c ustodia l parent. In Borchert v. Borchert, supra, 185 Md. 586, 45 A.2d 463, a divorce case, the wife sought child support for a disabled adult child of the parties who was living with her. The Court note d the statu tory duty to support m inor children , the 1916 s tatute requiring adult children to support d estitute parents, and the absence o f any reciprocal obligation on the p art of a parent to sup port a destitute adult child. T he Cou rt observed that there w as a trend in 2 In 1952, that obligation was extended to minor children of a destitute parent, but in 1984, w ith the enactm ent of the F amily Law Article, it was again limited to adult children . See 1952 Md. Laws, ch. 36 and 1984 Md. Laws, ch. 296, enacting § 13-102, and Revisor s Note to that section. -6- the country, either thro ugh statute o r judicial expa nsion of the common law, to recognize such a duty, and that the father in that case had actually acknowledged that obligation, but it felt stymied in that the Legislature had not seen fit to provide any mechanism for enforcing that obli gation. Id. at 594-95, 45 A.2d at 466. The Court thus concluded: The omission by the legislative branch of the government of such a statute is an indication that the failure to support an incapacitated child is placed by it on a different footing from the failure to supp ort a min or child . We cannot now without further legislative action hold that the divo rce statute attempted to be invoked in this case is enlarged to include other than minor children . Id. at 595, 45 A.2d at 466-67. At its next opportunity, the Legislature responded to that ruling. By 1947 Md. Laws, ch. 113, it imposed a duty on parents to support their destitute adult children but chose the same format for enforcing the obligation as it had for enfor cing the du ty to support de stitute parents a criminal proceeding. Nonetheless, in Smith v. Smith, supra, 227 Md. at 360, 176 A.2d at 865, an action for permanent alimony, the C ourt held tha t [t]he passa ge of this act is a clear indica tion of legisla tive intent to place the fa ilure to support an incapacitate d child on equal footing with f ailure to support a minor child. On that premise, this Court affirmed an aw ard of c hild sup port to th e moth er of the destitute adult ch ild. That holding was confirmed in Sininger v. Sininger, 300 Md. 604, 479 A.2d 1354 (1984), which emanated from a divorce case in which the wife/mother was awarded custody of the parties thre e minor children and the husband was ordered to pay child support for -7- them. The support obligation ended when the youngest of the three children came of age. Several months later, the mother filed a new complaint for support for one of the children who, after attaining m ajority, had becom e men tally ill and, a s a result of that illn ess, a destitute adult child. The father resisted, arguing that, once the child had become eman cipated , the sup port ob ligation ended and co uld not be reviv ed. The Court rejected that argument and concluded that it made no difference whether the disability creating the destitution arose prior to or after the child reache d majo rity. See also Presley v. Presley, 65 Md. Ap p. 265, 267, 500 A .2d 322, 327 (198 5); Freeburger v. Bichell, 135 Md. App. 680, 686, 763 A.2d 1226, 1229 (2000). It is clear from these cases that, although the statutory mechanism for enforcing the duty of a parent to support a destitute adult child is a criminal proceeding instituted by a State s Attorney, the duty may be enforced as well through a family law action invoking the equity jurisdiction of the cou rt. Had Schonfeld s paternity been established, both Ms. Trembow and Ivan would be entitled to pursue h im for sup port. The problem is that Schonfeld s paternity has not been established, and the question is whether Ms. Tre mbow is entitled now to file an action to establish it. That requires an examination of the paternity law which, on its face, preclu des such a n action by he r at this point. The legislative policy behind the current paternity law is set forth in FL § 5-1002 to promote the welfare and best interests of children born out of wedlock by securing for -8- them, as nearly as practicable, the same rights to support, care, and education as children born in wedlock, and to impose on both paren ts of children born out o f wedloc k the basic obligations and responsibilities of parenthood. In furtherance of that policy, FL § 5-1005 permits an equity court to determine the legitimacy of a child pursuant to § 1-208 of the Estates and Trusts Article.3 Section 1-208 states, in relevant pa rt, that a child bo rn to parents who have not participated in a marriage ceremony with each other is the child of an identified man only if that man (1) has been judicially determined to be the father in an action brought under the paternity law, (2) has acknowledged himself, in writing, to be the father, (3) has openly and notoriously recognized the child to be his child, or (4) has subsequently married the mother and ack nowledged h imself orally or in writing to be the father. FL § 5-1006 the statute principally at issue here creates a special statute of limitations for a paternity action under § 5-100 5. The norm al period of limitations for a civil action is three years from the date the action accrues. See Maryland Code, § 5-101 of the Cts. & Jud. Proc. Article. Section 5-1006 permits a paternity action to be filed during the mother s pregnancy but specifies that [a] proceeding to establish paternity of a child under this subtitle may be b egun a t any time b efore th e child s eightee nth birth day. Notwithstanding the use of the word may, that statute constitutes a statute of limitations. 3 Although it has been common to refer to children born out of wedlock as illegitimate, we have made clear on several occasions that there is no such thing as an illegitim ate ch ild. Tha t term is a stigmat izing on e that is w holly inap propria te. See Carroll County v. Edelmann, 320 Md. 150 , 173, n.6, 577 A.2d 1 4, 25, n.6 (1990). -9- See Thompson v. Thompson, 285 Md. 488, 404 A.2d 2 69 (19 70), overruled on other grounds, Frick v. Maldonado, 296 Md. 304, 462 A.2d 1 206 (1 983). On its face, the statute requires a paternity action to be brought prior to the child s eighteenth birthday. That was not done here. Ms. Trembow argues that th e statute doe s not really mea n what it plainly says that there is some ambiguity in the meaning of the word child or in the meaning of the child s eighteenth birthday. She looks at the d efinition of child in other statutes, where the Legislature, for the special purposes of those statutes, has define d child as including a dult children, and concludes from those definitions that the und efined w ord, as used in FL § 51006, could possibly include a child over eightee n, at least if the ch ild is a destitute ad ult child. She ackn owledg es that, only if § 5-1006 is regarded as legally ambiguous and given that expansive meaning that the child s eighteenth birthday does not really mean the child s eighteenth birthday can her action suc ceed. In positing that view o f statutory construc tion, Ms . Tre mbo w is w rong . The statu te ca nnot properly be to rture d in that w ay. We have stated the rules go verning sta tutory constructio n so often that only the most cursory repetitio n is nec essary. Our goa l is to ascertain an d implem ent the legislativ e intent, and, if that intent is clear from the language of the statute, giving that language its plain and ordinary meaning, we need go no further. We do not stretch the language used by the Legislature in order to cre ate an amb iguity where n one wo uld otherwise exist. If there is some ambiguity in the language of the statute, either inh erently or in a particular application, -10- we may then resort to other indicia to determine the likely legisla tive inten t. See, most rece ntly, Mackey v. Compass , 391 Md. 1 17, 141 , 892 A .2d 479 , 493 (2 006), Comptroller v. Blanton, 390 M d. 528, 536 -37, 890 A .2d 279, 28 4 (2006); Grandison v. State, 390 Md. 412, 445, 889 A.2d 366, 385 (2005); Gilmer v . State, 389 Md. 656, 662-63, 887 A.2d 549, 553 (2005); Design Kitchen v. Lagos, 388 Md. 718 , 728-29, 882 A .2d 817, 823 (200 5). There is nothing at all ambiguous about § 5-1006 . It plainly says, and me ans, that, if a paternity action is to be br ought, i t must b e filed b efore th e child s eightee nth birth day. If it is filed thereafter, it is subject to dismissal upon a properly filed motion to dismiss. In context, child nec essarily means a child under eighteen. It cannot mean anything else. The fact that, in other statu tes, the Legis lature has sp ecifically defined the word child as either including persons over eighteen, or as limited to persons under some younger age, does not make the undefined word child as used in § 5-1006 in any way ambiguous. Ord inarily, upon finding no ambiguity in the statutory language, we would halt our inquiry and not look at legislative history, or other external indicia. In this case , however, legislative history actually supports the plain meaning of the langua ge and is therefore w orth considering, not to create an ambiguity where non e exists, but to establish that the Legislature knew precisely wha t it was doing when it de creed that p aternity actions m ust be brou ght, if at all, prio r to th e chi ld s e ighteent h birthda y. Prior to 1963, paternity determinations were made pursuant to the old bastardy and fornication laws, which came to us from England and which we described in Gill v. Ripley, -11- 352 Md. 7 54, 724 A.2d 8 8 (199 9). The law required the mothe r of a child b orn, or abo ut to be born, out of wedlock to be brought before a justice of the peace and forced either to name the father or post a bond conditioned on her suppo rting the child. If she named the f ather, the man w as appreh ended on a warran t, and, unless he agreed to support the child and posted a bond to secure that obligation, a criminal information was filed accusing him of bastardy, and he was tried in criminal court to determine w hether he was the f ather. If found guilty, the court entered a support order, and the defendant was then required to post a bond conditioned on suppo rting the child until the child was 18.4 See Maryland C ode (195 7), Art. 12. Under that law, prosecutions had to be commenced within two years after delivery of the child unless the a ccused h ad made payments for the support of the child, in which event the prosec ution co uld be b rough t within two year s after th e last paym ent. In 1963, upon the recommendation of a legislatively authorized and gub ernatorially appointed Commission to Study the Problems of Illegit imac y, the Legislature repealed the bastardy law and s ubstituted instead a civil procedure for determining paternity and providing support to childr en born out of w edlock . See 1963 M d. Law s, ch. 72 2. That law, as amended from time to time, is what now appears in title 5, subtitle 10 of the Family Law Article. In the initial 1963 version, the law retained the two year statute of limitations included in the bastardy law. Section 66(e) of former Art. 16 required that paternity proceedings be 4 Even though the age of majority at the time was 21, the duty of support extended only to the age of 18. -12- commenced during pregnancy or within two years after birth of the child or within two years after any ackn owledg ment of p aternity or volun tary payment. A relatively short statu te of limitation s for patern ity actions was pretty much th e rule at the time. Most States required that paternity actions, at least by the mother, be filed within one, two, or three years after the b irth of the child. In Thompson v. Thompson, supra, 285 Md. 488, 404 A.2d 269 (1970), this Court sustained the two-year statute of limitations in the Maryland law against a challenge that it denied children born out of wedlock equal protection of the laws. Shortly after Thompson was decided, the Supreme Court began to look askance at State laws that discriminated aga inst children born out of wedlock. In Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872, 35 L. Ed.2d 56 (19 73), the Court struck down a Texas common law doctrine that children born out of wedlock had no rig ht to any support from their father, even though the law required fathers to s upport their legitimate children. The Court recognized the lurking proble ms wit h respe ct to pro of of p aternity, but concluded that they could not be made into an impenetrable barrier that works to shield otherwise invidious discrimination. Id. at 538, 93 S. Ct. at 875, 35 L. Ed.2d at 60. In response to Gomez, Texas enacted a law giving children born out of wedlock the right to seek support by establishing paternity but required that such an action be brought before the child reached the age of one. The Court struck that down as well. If the equal protection principles underlying Gomez were to h ave any me aning, the C ourt said, [t]he -13- period for asserting the right to support must be sufficiently long to permit those who normally have an in terest in such c hildren to bring an action on their behalf despite the difficult personal, family, and financial circumstances that often surround the birth of a ch ild outside of wedlock. Mills v. Habluetzel, 456 U.S. 91 , 97, 102 S. Ct. 1549, 1553, 71 L. Ed.2d 770, 776 (1982). Though applying equal protection principles to the statute of limitations for determining paternity, the Mills Court exp ressly declined to create abso lute parity between children born in and out of wedlock, noting that [p]aternal support suits on behalf of illegitimate children contain an element that such suits for legitimate children do not contain: proof of paternity. Id. at 97, 102 S. Ct. at 1554, 71 L.Ed.2d at 777. It continued: Therefore, in support suits by illegitimate children more than in support suits by legitimate children, the State has an interest in preventing the prosecution of stale or fraudulent claims, and may impose greater restrictions on the former than it imposes on the latter. Such restrictions will survive equal protection scrutiny to the exten t they are substan tially related to a legitimate state inte rest. . . . The State s interest in avoiding the litigation of stale or fraudulent claims will justify those periods of limitation that are sufficie ntly long to prese nt a real threat of loss or diminutio n of evide nce, or an in creased vu lnerability to fraudulent claims. (Internal citations om itted). Id. at 98-99, 10 2 S. Ct. at 1554-55, 71 L. Ed.2d at 777-78. The deficiency in the one-year statute was that it was unrealistically short and was n ot substantially related to the State s interest in avoiding the prosecution of stale or fraudulent claims. While Mills was pending, Texas amended its law to provide a four-year statute of -14- limitations for paternity actions. That prompted a concurring Op inion by Justice O Conn or, who expressed conce rn that the striking down of the one-year statute may be misinterpreted as approving the current four-year statute. She observed that, while the State has a legitimate interest in precludin g stale or frau dulent claim s, it also has an in terest in ensuring that genuine claims are not denied. Noting some of the practical difficulties in bringing paternity actions, Justice O Connor asserted that [t]he risk that the child will find himself without financial support from his natural father seems as likely throughout his minority as during the first year of his life. Id. at 106, 102 S. Ct. at 1558, 71 L. Ed.2d at 782. She thus concluded that the factors used in invalidating the one-year statute indicate that longer periods of limitation for paternity suits also may be unconstitutional. Id. A year later, the Court struck dow n a two-year T ennessee statute of limita tions, nearly identical to the then-current Maryland statute, as also being too sho rt. See Pickett v. Brown, 462 U.S. 1, 103 S. Ct. 2199, 76 L. Ed.2d 372 (1983). The Court observed that the relationship between a statute of limitations and the State s interest in preventing the litigation of stale or fraudulent paternity claims has become more attenuated as scie ntific advances in blood testing have alleviated the problems o f proof su rrounding paternity actions . Id. at 17, 103 S. Ct. at 2208, 76 L. Ed.2d at 385. Based on Mills and Pickett, this Court, in Frick v. Maldonado, supra, 296 Md. 304, 462 A.2d 1206, expressly overruled Thompson, and declare d the M aryland two-yea r statute of lim itations unco nstitutional. What ultimately changed the landscape in this area and led to statutes permitting -15- paternity actions to be brought within 18, 19, 20, or 21 years was the Fede ral Child Support Enforcement Amendments (P.L. 98-378) enacted by Congress in 1984. Intended to strengthen State effo rts at child sup port enfor cement, the Act tied Fe deral finan cial incentives and support to th e adoption of State plans that complied with stand ards set forth in the Act. One of those requirements, now codified in 42 U.S.C. § 666(a)(5), is that the State have a law establishing [p]rocedures which permit the establishme nt of the pa ternity of a child at any time before the child attains 1 8 years of age . Congre ss recogniz ed that the ad vancem ent in testing for genetic markers made identification much easier and that much of the impetus for short periods of limitations was no longer a facto r. The House Ways and Means Committee Report on the House version of the bill (H. Rep. 98-527 accompanying H.R. 4325) noted: Relatively short statutes of limitation were enacted in the past in order to prevent stale claims and to protect a man from having to defend himself against a paternity action brought years after the child s birth when witnesses may have disappeared and memories may have b ecome f aulty. Recent p rogress in developing highly specific tests for genetic markers now p ermits the exclusion of over 99 percent of those wrongly accused of paternity regardless of the a ge of th e child. These ad vances in scientific paternity testing eliminate the rationale for placing arbitrary time limitations on the establishment of paternity for a child an d theref ore the o bligatio n to sup port tha t child. In order to conform with the Federal requirement and thus conti nue to receive the significant Federal financial assistance provided for public welfare programs, m ost of the States, including M aryland, eventu ally amended their paternity laws to provide for a longer statute of limitations. Interestingly, Maryland s initial reaction to both the Federal -16- requirement and the antecedent judicial decisions was to repeal the statute of limitations applicable to patern ity actions a ltogethe r. See 1985 Md. Laws, ch. 451. The Act referenced both Pickett v. Brown and Frick v. Maldonado, strik ing d own two-year periods of limitations, and, in light thereof, amended § 5-1006 to eliminate completely any limitations period.5 For ten years, until 1995, § 5-1006 said merely that a paternity proceeding may be begun during pregnancy and was not barred because the child was conceived or born outside Maryland. The eighteen-year limitations period (plus the pe riod of pre gnancy) w as inserted in 1995, as part of a reaction to this Court s decision in Tandra S. v. Tyrone W., 336 Md. 303, 648 A.2d 439 (1994). In Tandra S., this Court concluded tha t a circuit court had no au thority to vacate an enrolled judgment establishing paternity, even if the motion to vacate is based on a post-judg ment bloo d test or testimony from the mother that the judicially-determined father was not, in fact, the father. At its next session, the General Assembly, through the 5 The legislative history of ch. 451 further confirms the basis for the repeal. As introduced, the bill (H.B. 1518) would have merely lengthened the current two-year statute of limitations to three years the general period of limitations for civil actions. Concern was expressed by a number of witnesses, however, that a three-year period would a lso be unc onstitutional a nd that there should be no limit as to w hen a pate rnity action could be filed. The focus was clearly on the support of minor children, not adults, and the point was m ade that allowing a pa ternity action to be brought at any time before the child s eighteenth birthday was the equivalent of no statute of limitations. When the bill was amended to eliminate entirely the statute of limitations, the Executive Director of the Child Support Enforcement Administration advised the House Judiciary Committee that the Ch ild Suppo rt Amen dments o f 1984 in clude a req uirement th at all states adopt procedures wh ich permit establishment of paternity at any time prior to a child s eighteenth birthday and that [w]e believe that House Bill 1518 would accomplish that end. -17- enactment of 199 5 Md . Laws , ch. 248 , overtu rned th at decisi on. See Langston v. Riffe, 359 Md. 396, 405 , 754 A.2d 389, 393 (2000). A s part of the b ill doing so, it rew rote § 5-1006 expressly to require that a proceeding to establish p aternity be begun at any time before the child s eighteenth birthday. The title to the bill states that the new language was to clarif[y] the statute of limitations app licable to paternity proceedings, which, as to minor children, it did. As to them, there was re ally no chang e: there wa s no statute of limitations at all. The current version of § 5-1006 essentially adopts the standard required by the 1984 Federal Act and is consistent with the law throughou t the country. It appears that, in addition to Maryland, fourteen States have statutes requiring that a paternity action filed by a parent be brought b efore the c hild s eightee nth birthday. 6 Eighteen other States have limitations periods that extend for some relatively brief fixed period beyond majority, but are not openended.7 Sixteen S tates have n o specific tim e limitations in their paternity statutes, as was the 6 Arizona, Colorado, Connecticut, Idaho, Kentucky, Maine, Michigan, Nebraska, New Ham pshire, North Carolina, Oklahoma, Pennsylvania, South Dakota, and West Virginia. In Colorado, a child may bring a paternity action within one year after the child s eighteenth birthday, whereas in Oklahoma and West Virginia, a child may bring a pate rnity a ction up to the c hild s tw enty-first birth day. 7 Alabama 19; District of Columbia 21; Florida four years after reaching majority; Hawaii 3 years after reaching majority; Illinois 2 years after reaching majority; Indiana 20 unless child is incompetent, then 2 years after becoming competent; Iowa 1 year after majority unless child has mental illness, then 1 year after termination of disability; Kansas 3 years after reaching majority; Mississippi 21; Montana 2 years after reaching majority; Nevada 3 years after reaching majority; New Jersey 5 years afte r reachin g ma jority; New Mexico 3 years a fter r each ing m ajority; (continued...) -18- case in Maryland for ten years, although in five of them (Delaware, North Dakota, Texas, Utah, and Wyoming) only the child may bring a paternity action after reaching the age of majo rity. 8 Thus, in 37 States, there is no open-ended ability for a parent, such as Ms. Trem bow, to bring a paternit y action o n her ow n beha lf. What we learn from all of this is that, with respect to minor children the predom inant, if not the sole, focus of both the Federal and State legislation dealing with the period of limitations for bringing a paternity action the intent was to have no statute of limitations. Except possibly for that brief period after the child turns eighteen but remains in secondary school for up to an additional year, the requirement th at an action be filed before the child s eighteenth birthday has significance only with respect to adult children. Yet the Legislature was fully aware that destitute adult children had rights under the paternity law. Section 5-1 032(a) pro vides that, if the court finds that the alleged father is the father, it shall pass an order declaring him to be the father and providing support for the child. Section 5-1032(b) specifies: (1) The father shall pay the sum to be specified in the order until the first to occur of the following events: (i) the child be comes an adult; 7 (...continued) New York 21; Ohio 5 years after reaching majority; Rhode Island 4 years after reaching majority; Tennessee 3 years after reaching majority; Vermont 3 years after reac hing majo rity. 8 Arkansas, California, Delaware, Georgia, Louisiana, Massachusetts, Minnesota, Missouri, North Dakota, Oregon, South Carolina, Texas, Utah, Virginia, Washington, and Wyoming. -19- (ii) the child dies; (iii) the child marries; or (iv) the child becomes self-supporting. (2) If the child is an adult but is destitute and cannot be selfsupporting because of a physical or mental infirmity, the court may require the father to continue to pay support during the period of th e infirm ity. (Emphasis add ed). As applied to Ms. Trembow, who, at any time from the moment she knew she was pregnant with Ivan until the child turned eighteen, could have filed a paternity action against Schonfeld, the statute is clear, valid, and enforceab le. She was aw are well before Ivan turned eighteen that he likely would become a destitute adult child when he reached that age. There was no procedural or substantive bar to her suing to establish paternity and obtain an order of support which, under our holdings in Smith and Sininger, could have been extended after Ivan turned eightee n. There is no justifiable basis for torturing FL § 5-1006 to create an ambiguity that does not exist and then read the statute to mean what it plainly does not say and was n ever inte nded to say, in ord er to rew ard M s. Trembow for sle eping on h er rights for more than eighteen years.9 9 We need not consider here whether the situation would be different if Ivan had filed a patern ity action after reac hing eighte en, in order to pursue su pport as a d estitute adult child. Facially, § 5-1006 applies to any paternit y action. In Piselli v. 75 th Street Medical, 371 Md. 188, 808 A.2d 508 (2002), we held that application of a statute of limitations in such a way as would effectively preclude a person from pursuing an available cause of action before it was possible to bring that action was impermissible under Article 19 of the Maryland Declaration of Rights. The case involved a medical malpractice action to recover for injuries sustained by a child, an action that was requ ired to be bro ught with in three years af ter it accrued. T he issue cer tified to this (continued...) -20- 9 (...continued) Court by the U.S. Court of Appeals for the Fourth Circuit was whether the action accrued when the child discovered the cause of the injury or when the parents made that discov ery. We c onclud ed that it w as the fo rmer. After restating the issue, we noted the long-standing principle that statutory time limits for a minor to bring an action do not begin running until the age of majority has been firmly established in our law for a long time, id. at 212, 808 A.2d at 523, and confirmed that [t]he fact that a guardian or next friend could have brought suit during the period of disability does not remove the case from the tolling principle. Id. at 214, 808 A.2d at 523, citing Funk v. Wingert, 134 Md. 523, 527, 107 A. 345, 346 (1919). The result of commencing the running of the statute of limitations when the child discovered the injury would be, effectively, to preclude the action because limitations would run before the child reached majority and was able to bring the action. Such a preclusion, we made clear in Piselli, would contrav ene A rticle 19 of the M aryland D eclaratio n of R ights. We held there that barring an injured child s . . . claim before the child is able to bring an action is an unreasonable restriction upon the child s right to a remedy and access to the courts guaranteed by Article 19 of the Maryland Declaration of Rights. Piselli, 371 Md. at 216, 808 A.2d at 524. There is on e clear distinctio n betwee n the situation here and th at considere d in Piselli. FL § 5-1013 provides that a party under legal disability need not proceed by guardian, committee, or next friend, and, in Jessica G. v. Hector M., 337 Md. 388, 653 A.2d 922 (1995), we held that a minor child had the right to bring a paternity action on her own, even after her mother had brought and abandoned one. The Piselli analysis, to that extent, does not fit exactly, therefore. Ivan could have brought a paternity action while still a minor. The effe ct of the eighteen-year statute of limitations w ould, however, preclude his bringing a paternity action as a destitute adult child. His right to establish pate rnity for that purpose arguably cou ld be lost bef ore he attaine d the status n ecessary to justify the action. Because Ivan has not pursued a paternity action on his own, we need not resolve that issue. The dissent argues that the plainly worded, unambiguous statute somehow violates equal prote ction by discrim inating aga inst children b orn out of wedlock children it ca lls nonmarital children. Although the dissent boldly proclaims that [b]inding Supreme Court precedent establishes that the statute of limitations that the majority enforces against the appellant to bar her paternity action violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, it cites no case from the Suprem e Court or any other cou rt that so holds or even su ggests. It also f ails to appreciate that Ms. Trembow is not a nonmarital child. It fails to explain how or why the 18-year statu te of limitation s constitutes a violation of equal prote ction, whic h is (continued...) -21- JUDGMENT OF CIRCUIT COURT FOR FREDERICK COUNTY AFFIRMED, WITH COSTS. 9 (...continued) understandable because there is no such violation. What the dissent seems to believe and, indeed ex presses, is that any statute of limitations on a paternity action would be unconstitutional, a remarkable precept yet to be endorsed by anyone. -22- In the Circu it Court for F rederick C ounty Case No. C-03-2097 IN THE COURT OF APPEALS OF MARYLAND No. 64 September Term, 2005 VICTORIA TREMBOW v. ALAN SCHONFELD Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissen ting Op inion b y Raker, J . Filed: June 8, 2006 -23- Raker, J., dissenting: Although the majority purports to respect the rights of nonmarital10 children, disapproving of the description of such children as illegitimate because it is stigmatizing and who lly inappro priate, 11 in reality, the majority s holding today perpetuate s this country s regrettable history of invidious and unconstitutional discrimination against nonmarital children. Binding Supreme Court precedent establishes that the statute of limitations that the majority enforces against the appellant to bar her paternity action violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The majority, by who lly failing to even acknow ledge, let alone address, appellant s persuasive equal protection argument, works a far greater injustice against nonmarital children tha n is done b y describing the m as illegitim ate. With re spect, I dissen t. 10 I use nonmarital rather than illegitimate, and, in conjunction with my constitutional analysis, classifications based on nonmarital child status rather than classifications based on illegitimacy, in recognition of the fact that characterization of nonmarital children as illegitimate carries the unwelcome connotation that nonmarital children are somehow of lesser worth than marital children. See Clara C. v. William L., 750 N.E.2d 1068 (N.Y. 2001) (referring to nonmarital children); Gerhardt, Guardian ad Litem for Heather Jo Krueger, v. Estate of Moore, 441 N.W.2d 734 (Wis.1989) (referring to child out-of-wedlock as nonmarital child). It is the unequivocal public policy of this State that nonmarital children should, as nearly as possible, be possessed of the same rights and privileges as marital children. See Md. Code (1984, 2004 Repl. Vol., 2005 Cum. Supp.), § 5-1002(b)(1) of the Family Law Article (purpose of subtitle in Family Law Article governing paternity proceedings is to promote the general welfare and best interests of children born out of wedlock by securing for them, as nearly as practicable, the same rights to support, care, and education as children born in wedlock ). 11 See maj. op. at 9 n.3. I. Md. Code (1984, 2004 Repl. Vol., 2005 Cum. Supp.), § 5-1006 of the Family Law Article,12 provides as follows: (a) A proceeding to establish paternity of a child unde r this subtitle may be begun at any time before the child s eighteenth birth day. (b) A patern ity proceeding under this subtitle may be begun during pregn ancy. (c) A com plaint unde r this subtitle is not barred because the child born out of wedlock was conceiv ed or born outside this State. Although I agree with the majority that the plain language of § 5-1006(a), if app lied to appellant s paternity action, would bar the a ction,13 12 All subsequent section references herein shall be to the Family Law Article, Md. Code (1984, 2004 Repl. Vol., 2005 Cum. Supp.) unless otherwise indicated. 13 I do not agree, however, with the majority s assertion that the relevant legislative history behind § 5-1006(a) provides support for the plain language reading of the statute. See maj. op. at 12-20. Until 1985, § 5-1006 provided for a two year statute of limitations on the initiation of paternity actions, subject to limited exceptions. See Md. Code (1984), § 5-1006(a) of the Family Law Article. In Frick v. Maldonado, 296 Md. 304, 462 A.2d 1206 (1983), we held that the two year statute of limitations for initiating paternity actions provided for in the predecessor of § 5-1006 was unconstitutional, following the Supreme Court s opinion in Pickett v. Brown, 462 U.S. 1, 103 S. Ct. 2199, 76 L. Ed. 2d 372 (1983). In response to our holding in Frick, the General Assembly amended § 5-1006 in 1985, enacting H.B. 1518, eliminating entirely the two-year limitations provision from § 5-1006. See 1985 Md. Laws, Chap. 451. Although the purpose of H.B. 1518 seems clear enough from the session laws, the Bill file for H.B. 1518 reveals some confusion over the effect. In particular, evidence presented before the relevant House and Senate Committees indicates that there was confusion as to whether the three year statute of limitations in Md. Code (1974, 1984 Repl. Vol.), § 5-101 of the Courts and Judicial Proceedings Article applicable to civil actions generally would apply to paternity actions upon the repeal of the two year statute of limitations, or whether the effect of repeal would be to eliminate any statutory limitations on the initiation of paternity actions. Compare Letter from Martin McGuire, Office of the State s Attorney for Baltimore City, to the (continued...) -2- I would hold that § 5-1006(a), as applied to a ppellant s ac tion to establish the paternity of her adult disabled child, violates the Equal Protection Clause of the Fourtee nth Amen dment to the United States Constitution. Consequently, I would not apply § 5-1006(a) to bar appellant s paternity action. I reach this conclusion because under the framework established in Mills v. Habluetzel, 456 U.S. 91, 102 S. Ct. 1549, 71 L. Ed. 2d 770 (1982), for the equal protection analysis of statutes of limitations on paternity actions, no statutory limitations period survives equal protection scrutiny given the increase in accuracy in paternity testing since 1982, the year Mills was decided. The Supreme Court has long held that statutory classifications based on nonmarital child status ar e subje ct to heig htened scrutiny u nder th e Equ al Prote ction C lause. See Picke tt v. Brown, 462 U.S. 1, 7-8, 103 S. Ct. 2199, 2203-04, 76 L. Ed. 2d 372 (1983) (collecting and discussing cases). The Supreme Court first invalidated state laws that discriminated against 13 (...continued) House Judicial Committee (Feb. 21, 1985) (three-year statute of limitations would apply) with Letter from Ann C. Helton, Executive Director of the Department of Human Resources, to the Senate Judicial Proceedings Committee (undated) (no limitations period would apply to paternity actions). In 1995, the General Assembly again amended § 5-1006, enacting H.B. 337, adding the present version of § 5-1006(a). See 1995 Md. Laws, Chap. 248. The purpose for the change to § 5-1006, as stated in the purpose clause, was to clari[fy] the statute of limitations applicable to paternity proceedings. Other than the statement in the purpose clause of Chap. 248, my review of the bill file for H.B. 337 reveals nothing relevant to the changes Chap. 248 made to § 5-1006. The purpose clause of Chap. 248 itself is unrevealing. As detailed above, the legislative history behind the elimination of the two-year statute of limitations on paternity actions effectuated by Chap. 458 in 1985 reveals uncertainty as to whether the repeal of the theneffective version of § 5-1006(a) would have the effect of applying a three-year statute of limitations or no statute of limitations. In light of this uncertainty, it cannot be discerned from the legislative history what the legislature was clarifying when it undertook to clarify the statute of limitations applicable to paternity proceedings. -3- nonmarital children in the companion cases of Levy v. Louisiana, 391 U .S. 68, 8 8 S. Ct. 1509, 20 L. Ed. 2d 436 (1968) and Glona v. American Guarantee & Liab. Ins. Co., 391 U.S. 73-74, 88 S. C t. 1515, 2 0 L. Ed . 2d 441 (1968). In these cases, the Court was confronted with the issue of whether state wrongful death statutes that, in cases where a child was a plaintiff or a decedent, forbade recovery if the child was nonmarital violated the Equal Protection Clause . See Glona, 391 U.S. at 73, 88 S. Ct. at 1 515-16; Levy, 391 U.S. at 69-70, 88 S. C t. at 1510 . In Levy, the Court held that Louisiana s wrongful death statute violated the Equal Protection Clause because it permitted only marital children to bring suit to recover damages for the dea th of the child s m other. Levy, 391 U.S. at 72, 88 S. Ct. at 1511. The Court began by noting that nonmarital children are not nonpersons, and as such are persons within the meaning of the Fourteenth Amendment. Id. at 70, 88 S. Ct. at 1510-11 . The Court concluded that the classification in the Louisiana statute was invidious, stating as follows: The rights asserted here involve the intimate, familial relationship between a child and his own mother. When the child's claim of damage for loss of h is mother is in issue, why, in terms of equal protection, should the tortfeasors go free merely because the child is illegitimate? Why should the illegitimate child be de nied rights m erely because of his birth out of wedlock? He certainly is subject to all the responsibilities of a citizen, includ ing the payment of taxes and conscription under the Selective Service Act. How under our constitutional regime can he be denied correlative rights which other citizens enjoy? -4- Id. at 71, 88 S. Ct. at 1 511. In considering whether there was any relationship between the classification based on nonmarital child status in the law and the purpose of the law, the Court was una ble to find any such relationship, concluding that [l]egitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. Id. at 72, 88 S . Ct. at 15 11. In Glona, the Court held that the Louisiana wrongful death statute violated the Equal Protection Clause to the extent that it prohibited a mother of nonmarital children from recovering for the wrongful death o f her ch ildren b ecause they wer e nonm arital. Glona, 391 U.S. at 75-76, 88 S. Ct. at 1516-17. The Court observed that the issue presented was somewhat different from that in Levy, because the person disadvantaged by the classification on the basis of nonmarital child status, the mother, bore some responsibility for the fact that the child was nonm arital. See id. at 75, 88 S. Ct. at 1516. Thus, it could at least be argued that the purpose of the discriminatory classification was to prevent out-of-wedlock births. Nonetheless, the Court, as in Levy, concluded that there was no rational relation between the classification and its purported purpose, explaining as follows: Yet we see no possible rational basis for assuming that if the natural mother is allowed recovery for the wrongful death of her illegitimate child , the c ause of ill egiti mac y will be served. It would, indeed, be farfetched to assume that women have illegitimate children so that they can be compensated in damages for their death. A law which creates an open season on illegitimates in the area of autom obile accide nts gives a w indfall to tortfeasors. But it hardly has a causal connection with the sin, which is, we are told, the historic reason for the creation of the d isability. -5- Id. (citation omitted). In Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872, 35 L. Ed. 2d 56 (1973) (per curiam), the Court first considered the issue of how the heightened scrutiny applied under the Equal Protection Clause to classifications based on nonmarital child status impacts statutes governing the rights of children to receive support from their parents. In Gomez, the Court was confronted with an equal protection challenge to the Texas statutory support scheme, which created a d uty on the part o f a father to support his marital childre n, but no su ch duty to suppo rt his non marital c hildren . Gomez, 409 U .S. at 535 , 93 S. C t. at 873. The Co urt, in reliance on Levy, held that the Texas scheme violated the Equal Protection Clause by providing support benefits to marital children and de nying the m to no nmarita l childre n. Id. at 538, 93 S. Ct. at 875. The Court explained that under its previous decisions, a State may not invidiously discriminate against illegitimate children by denying them substan tial benefits accorded children generally. Id. The Court did recognize that there were lurking problems with respect to proof of paternity, but made clear that these problems are not con stitutionally sufficient to justify a catego rical denial of rights to supp ort benefits to nonmarital children. Id. In Mills, the Court addressed whether the Texas support scheme for nonmarital children established in response to Gomez survive d equa l protect ion scru tiny. Mills, 456 U.S. at 92, 102 S. Ct. at 1551. The Texas support scheme before the Court in Gomez entitled nonmarital children to support from their fathers, provided that the father s paternity had -6- been e stablish ed. Id. at 94, 102 S. Ct. at 1552. The Texas scheme required paternity to be established as a precondition to bringing a support action on behalf of a nonmarital child, and required proceedin gs to establish paternity to be initiated within one year of the birth of the child. Id.14 The Mills Court held that this one year statute of limitations on the initiation of paternity actions violated the Equa l Protection C lause, becau se it invidiously discriminated against nonm arital chil dren. See id. at 101, 102 S. Ct. at 1556. Picking up on its comment in Gomez about the problems of proof in paternity cases, the Mills Court recognized that the State had a legitimate interest in preventing the prosecution of stale or fraudulent claims that is purportedly served by statutes of limitation on paternity actions. The Court first noted that proof in paternity cases is often sketchy and strongly contested , frequently turning upon conflicting testimony from only two witnesses. Id. at 97, 102 S. Ct. at 1554. Con sequ ently, the Court conclude d that in sup port suits by illegitimate child ren more th an in supp ort suits by legitimate children, the State has an interest in preventing the prosecution of stale or fraudulent claims, and may impose greater restrictions on the former than it imposes on the latter. Id. at 98-99, 102 S. Ct. at 1554. The C ourt then articulated the standards that statutes of limitation on paternity actions must meet to satisfy the Equal Protection Clause as follows: 14 Prior to enacting this scheme, the Texas Legislature first responded to Gomez by creating a procedure whereby fathers of nonmarital children could voluntarily acknowledge paternity of a nonmarital child and thereby become obligated to support the child. Mills, 456 U.S. at 93, 102 S. Ct. at 1551-52. This scheme was held unconstitutional by the Texas courts, and the Texas Legislature responded by enacting the scheme before the Court in Gomez. Id. at 93-94, 102 S. Ct. at 1552. -7- Such restrictions w ill survive equal protection scrutiny to the extent they are substan tially related to a legitimate state interest. The State s interest in avoiding the litigation of stale or fraudulent claims will justify those periods of limitation that are sufficiently long to present a real threat of loss or diminution of evidence, or an increased vulnerability to fraudulent claims. Id. at 99, 102 S . Ct. at 1554- 55 (citations o mitted) (emph asis added). The Court then elaborated on this standard, holding that a statute of limitations for paternity actions must meet two related requirements to withstand equal p rotectio n scrutin y. Id. at 99, 102 S . Ct. at 1555. First, the limitations period must be sufficiently long to present a reasonable opportun ity for those with an inte rest in [non marital] childre n to assert claim s on their behalf . Id. Second, the time period in the limitations statute must be substantially related to the State s interest in avoiding the litigation of stale or fraudulent claims. Id. at 99-100, 102 S. Ct at 1555. Applying this equal protection test to the Texas one year statute of limitations, the Court held that it failed b oth pro ngs of the test. Mills, 456 U.S. at 100-01, 102 S. Ct. at 155556. The Co urt conclud ed that a one year limitations period did not give mothers of nonmarital children sufficient time to assert support claims on behalf of their nonmarital children, as the financial, emotional, and social strains of giving birth to a child, and particularly out of wedlock, could prevent mothers of nonmarital children from initiating support claims on behalf of the children so soon a fter giv ing birth . Id. at 100, 102 S. Ct. at 1555. The Court further concluded that the one year limitations period was not substantially related to the State s interest in preventing stale or fraudulent claims, statin g flatly that it -8- could conceive of no evidence essential to paternity suits that invariably will be lost in only one year, nor is it evident that the passage of 12 months will appreciably increase the likelihood of fraudulent claims. Id. at 101, 102 S. Ct. at 1555. In a significant footnote, the Court discussed the appellant s argument that the paternity blood testin g techniques available at the tim e adequately protected the State s interest in prev enting s tale or fr audule nt claim s. See Mills , 456 U.S. at 98-99 n.4, 102 S. Ct. at 1554 n.4. The Court, although recognizing that blood tests are highly prob ative in proving paternity, rejected this argum ent. Id. The Court rejected this argument, stating that traditional blood testing techniques do not prove paternity, but rather [t]hey prove nonpate rnity, excluding from the class of possible fathers a high percentage of the general male population. Id. at 98 n.4 , 102 S . Ct. at 15 54 n.4. Given that, in the Cou rt s view, there was no testing technique that would prove to a sufficie ntly high degre e of certainty tha t a man is the father of a child if in fact he f athered the ch ild, the Court concluded that it was still necessary to turn to more conventional forms of pro of of paternit y. Id. Noting that the traditional forms of proof of paternity typically involve testimony of the parties and others, the Court concluded that the State clearly has a n interest in litigatin g claims w hile [this] evidence is relatively fresh. Id. The Court recognized , however, that new blood testing techniques aimed to predict paternity with a high degree of probability, but it did not find that the existence of these techniques was sufficient to obviate the need for -9- traditional forms of proof of paternity, as the C ourt foun d that the scien tific validity of these newer techniques was still a matter of academic dispute. Id. In a concurring opinion in Mills, Justice O Connor, joined by four other Justices, indicated that statutory limitations periods longer than the Texas one year limit for initiating paternity actions may also violate the Equal Protec tion Cla use. See Mills , 456 U.S. at 10206, 102 S. Ct. at 1556-58 (O Connor, J., concurring). Justice O Connor pointed to two factors that tend to undermine the strength of the State s interest in preventing stale or fraudu lent claim s. See id. at 103-05, 102 S. C t. at 1557-58. First, Justice O Connor noted that, in addition to the State s interest in prev enting stale o r fraudulen t claims, the Sta te has a countervailing interest in ensuring that genuine claims for child support are satisfied. Id. at 103, 102 S. Ct. at 1557. Second, following on the Co urt s discussio n of scientif ic paternity testing techniques, Justice O Connor maintained that [t]he State s concern about stale and fraudulent claims is substantially alleviated by recent scientific developments in blood testing dramatically reducing the possibility that a defendant will be falsely accused of being the illegitimate child s father. Id. at 104 n.2, 102 S. Ct. at 1557 n.2. Following Mills, the Court successively invalidated longer limitations periods for initiating paternity actions in Pickett v. Brown, 462 U.S. 1, 103 S. Ct. 2199, 76 L. Ed. 2d 372 (1983), and Clark v . Jeter, 486 U .S. 456, 108 S. Ct. 1910 , 100 L. Ed. 2d 46 5 (1988). In Pickett, the Court held that a Tennessee two year statute of limitations on paternity actions violated the Eq ual Pro tection C lause. Pickett, 462 U.S. at 18, 103 S . Ct. at 2209. The Co urt -10- applied the equal protection analytical framework laid down in Mills, and relied heavily on Justice O Connor s concurrence in Mills. See id. at 12-18, 103 S. Ct. at 2206-09. The Pickett Court, holding that the first prong of the Mills test was not satisfied, endorsed the position Justice O Connor took in her concurrence in Mills that the em otional strain experienced by a mother and her de sire to avoid family or com mun ity disapproval may continue years after the child is born. See id. at 13, 103 S. Ct. at 2206 (quoting Mills, 456 U.S. at 105 n .4, 102 S . Ct. at 15 58 n.4 ( O Co nnor, J., concurring)). The Pickett Court also concluded that the second prong of the Mills test was not satisfied, holding that a two year statute of limita tions was n ot substantially relate d to the State s interest in pre venting stale or frau dulent c laims. See id. at 15, 103 S. Ct. at 2207. The Pickett Court endorsed Justice O Connor s view set out in Mills that the State s interest in prev enting stale o r fraudule nt claims has beco me more attenuated in light of the increasin g accurac y of scientific techniques for dete rmining paternit y. See id. at 17, 103 S. Ct. at 2208 (quoting Mills, 456 U.S. at 104 n.2, 102 S . Ct. at 1557 n.2 (O C onnor, J., concurring)). In Clark, the Court h eld that a Pe nnsylvania six year statute of limitations for initiating paternity actions violated the Equal Protection Clause. Clark, 486 U.S. at 463, 108 S. Ct. at 1915. Although the C ourt expressed dou bt as to whether a six year period would be sufficiently long to give mothers of nonmarital children a reasonable opportunity to bring paternity actions, the Court based its holding expressly on its conclusion that the second prong of the Mills test wa s not sati sfied. Id. at 463-64, 108 S. C t. at 1915-16. The C ourt -11- based this conclusion on three grounds. First, the Court noted that i t was doubtful that Pennsylvania s interest in preventing stale or fraudulent claims required claims made after six years to be time-barred, inasmuch as Pennsylvania law permitted paternity actions after this period if the action is brought within two years after a support payment has been made. Id. at 464, 108 S. Ct. at 1916. Second, the Court found significance in the fact that the Pennsylvania Legislature had recently adopted an eighteen year statute of limitations for paternity actions. Id. at 465, 108 S . Ct. at 1916. T he Cou rt saw this statu te as a tacit concession that proof problems [in paternity actions] are not overwhelming. Id. Third, and most significant for present purposes, the Court relied on the increasing accuracy of scientific tests for paternity even more explicitly than it did in Mills or Pickett. The Court first noted tha t the Penns ylvania Legis lature had a dopted an eighteen year s tatute of limitations for paternity actions in response to Congress enactment of the Child Suppo rt Enforcement Amendments of 1984, Pub. L. No 98-378, 98 Stat. 1305 (1984), requiring states to adopt pro cedures to e stablish the paternity of any child under eighteen years of age as a condition for par ticipation in the fe deral ch ild supp ort prog ram. See Clark, 486 U.S. at 465, 108 S. Ct. at 1916. The Court, examining the legislative history of the Child Support Enforcement Amendm ents, stated as follows: The legislative history of the federal Child Sup port Enforcement Amendments explains why Congress thought such statutes of limitations are reasonable. Congress adverted to the problem of stale and fraudulent claims, but recognized that increasingly sophisticate d tests for genetic markers permit the exclusion of over 99% of those who might be accused of -12- pate rnity, regardless of the age of the child. H.R.Rep. No. 98-527, p. 38 (1 983). This scientific e vidence is available throughout the child s minority, and it is an additional reason to doubt that Pennsylvania had a substantial reason for limiting the time within which paternity and support actions could be brought. Id. (emphasis added ). Considering the constitutio nal history of pa ternity statutes of limitation, I conclude that § 5-1006(a) violates the Equal Protection Clause because it bars actions to establish the paternity of adult disabled children initiated after the child has turned eighteen. As we have seen, the Supreme Court in Mills, Pickett, and then Clark has invalidated paternity action statutes of limitation with successively longer limitations periods. Furthermore, in each case, the Court has relied more heavily on the accuracy of available scientific methods for proving paternity to reach its conclusion that the statutory limitations period at issue does not bear a substantial re lation to the State s interest in preventing stale or fraudulent paternity and support claims. Most significant, however, is the fact that DNA paternity testing tec hniques p resently available permit paternity to be established with near certainty. We have discussed the scientific underpin nings of DNA testing in several of our cases, and therefore I will not reiterate the disc ussion . See, e.g., Armstead v. State, 342 Md. 38, 49-54, 673 A.2d 221, 22628 (1996). The application of DNA testing technique s to questions of paternity has for many years now pe rmitted patern ity to be affirma tively established to an excee dingly high level of certa inty. See E. Do nald Sh apiro, et a l., The DNA Paternity Test: Legislating the Future -13- Paternity Action, 7 J.L. & Health 1, 29 (1993) (DNA technology permits paternity to be affirmative ly established to a probability of 99.999999%). Given that present DNA paternity testing technique s permit paternity to be affirmatively established to such a high degree of certa inty, I conclude that it is no longer possible to rely on the basis upon which the Co urt in Mills rejected the argument that the availability of s cientific pater nity testing techniques makes any statutory limitations period on paternity actions not substantially related to the State s interest in prev enting stale o r fraudule nt claims. In Mills, the Court re jected this argument because it found that there was an asymmetry in the then-available paternity testing techniques: they could af firmatively estab lish nonpa ternity, but could n ot affirma tively establish paternity. See Mills, 456 U.S. at 98 n.4, 102 S. Ct. at 1554 n.4. In the Supreme Court s view, it was this asymmetry that resulted in a continuing need for resort to traditional methods of proof of paternity, which in turn provides justification for the state to impose some statutory period of limitations on paternity actions . See id. This asymmetry, howeve r, no longer exists as a result of the adven t of DN A patern ity testing techniques. Thus, in my view, the advent of these tec hniques c alls into serious question the constitutiona lity of any statutory limitations period on paternity actions. Appellee s arguments that § 5-1006(a) does not violate the Equal Protection Clause if it is interpreted to bar appellant s paternity action are unpersuasive. Appellee s first argument is that § 5-1006(a) does not implicate the Equal Protection Clause at all, because it does not discriminate against nonmarital children in favor of marital children, but rather -14- only discriminates against nonmarital children w ho file untimely paternity suits in favor of nonmarital children who file timely suits. This argument plainly proves too much. Assuming that appellant s claim is correct, the same could be said of the limitations periods the Court invalidated on equal protection grounds in Mills, Pickett, and Clark. Appellee s second argument is that § 5-1006(a) survives equal protection scrutiny because it is substantially relate d to the legitimate state interest in prov iding repos e to defendants. Again, ap pellee s argu ment is belie d by Mills and its progeny. In Mills, the Court established a two-prong test for determining whether statutes of limitation on paternity actions survive equal protection scrutiny: a limitation s period fo r the initiation of paternity actions is consistent with the Equal Protection Clause if a nd only if the limitations period is both (1) sufficien tly long to perm it persons w ith an interest in th e child to initiate p aternity actions, and (2) substan tially related to the Sta te s legitimate in terest in preventing stale or fraudulent claims. See Mills, 456 U.S . at 99-100, 1 02 S. Ct. at 1 555. The Court app lied this test without alteration in Pickett and Clark. See Clark 486 U.S . at 461-62, 1 08 S. Ct. at 1914 (applying Mills test, and noting that the Court has developed a particular framework for evaluating equal protection challenges to statutes of limitations that apply to suits to establish paternity ); Pickett, 462 U.S. at 12-13, 103 S. Ct. at 220 6-07. This test does not recognize a state interest in p roviding re pose to de fendants a s being relev ant to the constitutional analysis of an equ al protection challenge to a statute of limitations for paternity actions. Con sequ ently, there are no grounds provided by existing Supreme Court precedent to believe -15- that the State s pu tative interest in providin g repose to potential def endants in p aternity actions could be sufficient to insulate a paternity statute of limitations from an equal protection challenge if the limitations period in the statute is not substantially related to the State s interest in preventing litigation of stale or fraudulent claims. II. The majority, although aware of the Supreme Court s holdings in Gomez, Mills, and Pickett, fails to addre ss appellan t s equal pro tection argument. See maj. op. at 14-16 (discussing these cases only in the context of discussing the legislative history of § 5-1006). Leaving aside that the majority s refusal to consider appellant s constitutional argument violates appellant s right under the Maryland Rules to have this argument addressed, 15 the majority s abject refusal to even consider this argument is particularly troublesome given that appellant has presented a persuasive argument that applying § 5-1 006(a) to b ar her patern ity action violates the Equal Protection Clause. To the extent that the majority s opinion permits any surmise as to its objections to the equal protection argument, the majority s objections are unpersuasive. The majority seems 15 This case is before us on a writ of certiorari, issued on our own initiative prior to decision by the Court of Special Appeals; as such, we must consider those issues that would have been cognizable by the Court of Special Appeals. Md. Rule 8-131(b)(2). Appellant s equal protection argument was plainly raised in her opening brief; consequently, she has not waived this argument on appeal, and is entitled to have the Court address it given that it rejected her statutory construction argument. See Simmons v. State, 392 Md. 279, ___ n.1, 896 A.2d 1023, 1031 n.1 (2006) (observing that if an issue is raised and argued in appellant s opening brief, it is adequately raised on appeal in the Court of Special Appeals). -16- to endorse the position that appellant should be barred from pursuing her paternity action because to permit her to do so would unduly infringe on appellee s interests in repose, stating as follows: As applied to Ms. Trembow, who, at any time from the moment she knew she was p regnant w ith Ivan until th e child turned eigh teen , cou ld ha ve fi led a pate rnity action against Schonfeld, the statute is clear, valid, an d enfo rceable . . . . There is no justifiable basis for tortu ring FL § 5-1006 to create an ambiguity that does not exist and then read th e statute to mean what it plainly does not say and wa s never inten ded to say, in order to reward Ms. Trembow for sleeping on her rights for more th an eigh teen years . Maj. op. at 20-21. As discussed at length supra, this objection is without merit because the Supreme Court has made it abundantly clear that a putative father s interest in repose is not an interest that is sufficiently strong to give constitutional justification to invidious discrimination on the basis of nonmarital child status. The emphasis the majority places on the legislative history of the Child Suppo rt Amen dments suggests that perhaps the majority believes that the equal protection argument is somehow undermined by this legislative histo ry. See maj. op. at 16-17. According to the majo rity, this history shows that Congres s was aware at the time of their enactment in 1984 that paternity testing tec hniques p ermitted pate rnity to be affirm atively established to a probab ility of grea ter than n inety-nine percen t. See id. If indeed this is th e majority s argu ment, it is quite curious, as it runs counter to what is perhaps the most fundamental principle of American constitutional jurisprudence, the -17- doctrine of judic ial review . This w ell-kno wn do ctrine, first enunciated by Chief Justice Marsha ll in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), states as follows: It is emphatic ally the province and duty of the judicial department to say what the law is. Those w ho apply the ru le to particular cases, must of necessity expound and interpret that rule. If two laws con flict with each other, the courts must decide on the operation of each. So if a law be in oppositio n to the constitution; if b oth the law and the co nstitution app ly to a particular case, so that th e court m ust either decide that case conform ably to the law, disregarding the constitution; or conform ably to the constitution, disregarding the law; the court must determine which o f these con flicting rules governs the case . Thi s is of the very e ssen ce of judicial d uty. If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply. Id. at 177-78. To give weight to the opinion of Congress as to the constitutionality of an eighteen-year statute of limitations for paternity actions, a s the majority sug gests that we do, would run afou l of the doc trine of judic ial review, an d would amount to the effective abdication of wha t Marbury identified as the v ery essen ce of ju dicial du ty, the duty of the judiciary to independently decide constitutional issues. -18- For the foregoing reasons, I w ould hold that applying § 5-1006 (a) to bar appellant s action to establish the paternity of her adult disabled child would violate the Equal Protection Clause of the United States Constitution by impermissibly discriminating on the basis of nonmarital child status. Accordingly, I would reverse the judgm ent of the C ircuit Court for Frederick County, and remand the case to that Court for further proceedings. -19-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.