UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0548 September Term, 2012 DAVID MARION CONNORS, III v. KAYLA MARIE WILKINSON Zarnoch, Hotten, Davis, Arrie W. (Retired, Specially Assigned), JJ. Opinion by Davis, J. Filed: September 23, 2013
David M. Conners, III, appellant, seeks to avoid a child support award, by challenging his previously admitted paternity of a child born to Kayla Marie Wilkinson. The Circuit Court for Carroll County denied Conners s Motion to Disestablish Paternity and Request for Paternity Test, as well as Conners s motion to reconsider that decision. Conners noted this appeal, presenting the following issues for our review: 1. Whether an affidavit of paternity, made by an individual with a ninth grade education, is conclusive, or may be subsequently attacked for fraud and deception. 2. Whether the alleged [putative] father s affidavit, support[ed] by photographs placed by the biological mother on Facebook, indicating that another person is the child s father, is sufficient to make out a prima facie case of fraud. 3. Whether an alleged [putative] father, after demonstrating through a DNA test that he is probably not the father of an infant less than one year old with whom he never had any relationship, and in a detailed affidavit shows that he is the victim of fraud and overreaching, may obtain a court ordered DNA test and challenge paternity. In response, Wilkinson moves to dismiss this appeal on the ground that neither the order denying Conners s Motion to Disestablish Paternity nor the order denying his motion to reconsider are appealable interlocutory orders. Alternatively, on the merits, Wilkinson contends that the court appropriately exercise[d] its discretion in denying [Conners s] motion for reconsideration[.] Because we agree that Conners prematurely appealed non-final orders and then failed to note an appeal from the final judgment, we are constrained to dismiss this appeal.
FACTUAL BACKGROUND Wilkinson gave birth to a daughter on May 30, 2011. The following day, Conners signed an affidavit admitting paternity of the child and acknowledging that the document 1 constitutes a legal finding of paternity. On September 29, 2011, Wilkinson filed a pro se complaint in which she named Conners as the father and requested a custody and visitation order. The Carroll County Bureau of Support Enforcement (the Bureau) subsequently filed the complaint in this action, seeking a child support order on behalf of the mother and child. 1 Under Md. Code, section 5-1028(d) of the Family Law Article, An executed affidavit of parentage constitutes a legal finding of paternity, subject to the right of any signatory to rescind the affidavit: (i) in writing within 60 days after execution of the affidavit; or (ii) in a judicial proceeding relating to the child: 1. in which the signatory is a party; and 2. that occurs before the expiration of the 60-day period. (2)(i) After the expiration of the 60-day period, an executed affidavit of parentage may be challenged in court only on the basis of fraud, duress, or material mistake of fact. (ii) The burden of proof shall be on the challenger to show fraud, duress, or material mistake of fact. (iii) The legal responsibilities of any signatory arising from the affidavit, including child support obligations, may not be suspended during the challenge, except for good cause shown. - 2 -
Conners filed an answer denying paternity. In support, he attached a copy of a DNA analysis report stating that the probability that he fathered Wilkinson s child is zero. The report, however, also states that [t]he collection, transport, and testing of specimens for the purpose of generating data shown above were not performed in compliance with established chain of custody guidelines. At a scheduling conference on December 20, 2011, counsel for Conners attempted to proffer a form signed by Conners in which he purports to rescind his affidavit of parentage. Because the document was not signed within sixty days of the original affidavit of parentage, the master determined that Conners had not validly revoked that affidavit. As a result, the master did not recommend a paternity test. The circuit court adopted that recommendation and denied Conners s motion to dismiss the child support complaint. Conners thereafter filed a Motion to Disestablish Paternity and Request for Paternity Test, averring that Wilkinson had fraudulently procured his signature on the paternity affidavit. The Bureau opposed the motion, citing Conners s failure to timely rescind the parentage affidavit and the unreliability of the proffered DNA test results. The circuit court denied Conners s motion on February 22, 2012. Conners timely moved for reconsideration, presenting a new affidavit in which he claimed, inter alia, that, during her pregnancy, Wilkinson received messages from other men asking whether they were the father and that she also posted photos on social media identifying another man as the child s father. After considering the Bureau s opposition, the court denied Conners s motion on April 27, 2012. On May 17, 2012, Conners noted this appeal. - 3 -
On December 18, 2012, after further proceedings, the circuit court ordered Conners to pay child support in the amount of $409.42 per month. Conners did not note an appeal from that order. DISCUSSION Whether a matter is appealable is a jurisdictional matter[.] Gruber v. Gruber, 369 Md. 540, 546 (2002). In Maryland, the right to seek appellate review is statutory; the Legislature can provide for, or preclude, the right of appeal. Fuller v. State, 397 Md. 372, 382 (2007). The legislature has expressly authorized by statute appeals from final judgments and certain interlocutory rulings. See Md. Code, 12-301 of the Courts & Judicial Proceedings Article ( CJP ) ( Except as provided in 12-302 of this subtitle, a party may appeal from a final judgment in a civil or criminal case by a circuit court. ); CJP 12-302(b) ( Section 12-301... does not apply to appeals in contempt cases ); CJP 12-302(c) (permitting appeals by the State from specified interlocutory rulings). [T]he underlying policy of the final judgment rule is to avoid piecemeal appeals. Gruber, 369 Md. at 546. In addition to authorizing appeals from final judgments, the legislature has permitted appellate review of certain other non-final orders, including orders certified as final judgments with respect to fewer than all claims or parties under Md. Rule 2-602(b), orders from which an appellate court has granted leave to appeal and rulings that qualify for appellate review under the common law collateral order doctrine. See Shoemaker v. Smith, 353 Md. 143, 165 (1999). - 4 -
Wilkinson urges this Court to dismiss Conners s appeal from the order denying his motion to reconsider on the ground that it is neither a final judgment nor an appealable interlocutory order. In support, she argues that neither of those rulings adjudicated all of the claims, rights, and liabilities of the parties at issue in this case and that the final appealable judgment was the subsequent child support order. We agree that neither the order denying Conners s motion to disestablish paternity nor the order denying his motion to reconsider are appealable as final judgments. A final judgment is a judgment, decree, sentence, order, determination, decision, or other action by a court... from which an appeal, application for leave to appeal, or petition for certiorari may be taken. CJP 12-101(f). To be final, a judgment must have (1) been intended by the trial court as an unqualified and final disposition of the matter in controversy, (2) adjudicated all claims against all parties, and (3) recorded by the court clerk. B & P Enters. v. Overland Equip. Co., 133 Md. App. 583, 623 (2000). Here, none of these finality requirements was satisfied. In an action for child support, the final judgment is the child support award and order to pay. See, e.g., Haught v. Grieashamer, 64 Md. App. 605, 611 (1985) ( An order establishing child support, or determining any other matter over which a continuing jurisdiction exists, if possessing all other required attributes of finality, is a judgment ). The orders denying Wilkinson s motions were interlocutory orders, rather than final judgments, because the court did not intend either one to be a final disposition of this child support matter, as established by the fact that the court did not enter the child support award until months later. - 5 -
Furthermore, neither of the orders denying Conners s paternity-related motions was certified for appellate review under Md. Rule 5-602. Nor has this Court granted leave to appeal those orders. And they are not appealable under any other statute or rule. Thus, as Conners acknowledges, his appeal may proceed only under the collateral order doctrine, a common law principle that treats as final and appealable a limited class of orders which do not terminate the litigation in the trial court, Pub. Serv. Comm n v. Patuxent Valley Conservation League, 300 Md. 200, 206 (1984), but otherwise conclusively determine the disputed question; resolve an important issue; [are] completely separate from the merits of the action; and [are] effectively unreviewable on appeal from a final judgment. Jackson v. State, 358 Md. 259, 266-67 (2000). Because this is a very limited exception to the principle that only final judgments terminating the case in the trial court are appealable, In re Foley, 373 Md. 627, 633 (2003), [a]ll four requirements are very strictly applied and appeals under the doctrine may be entertained only in extraordinary circumstances. Jackson, 358 Md. at 503 (citations omitted). See also In re Franklin P., 366 Md. 306, 327 (2001) (recognizing that these four elements are conjunctive in nature so that each of the four elements must be met ). Conners contends that the orders denying his paternity motions satisfy all four elements of the collateral order doctrine. First, he points out that the orders conclusively determined the disputed question of whether appellant was the biological father of the child and, thus, whether he had a statutory duty to support the child. Second, he maintains that, because the orders effectively determined paternity by denying his request for genetic testing, - 6 -
they resolved an important issue. Third, Conners asserts that his paternity-related motions were severable from the merits of the underlying child support action because paternity could easily be determined separately from the child support obligation. Finally, he maintains that the paternity orders were effectively unreviewable on appeal from a final judgment and had an actual effect on the outcome of the child support case because they denied him the opportunity to prove that he was not the child s father and, therefore, could not be ordered to pay child support. Wilkinson argues that the orders denying Conners s paternity-related motions do not fall within the collateral order doctrine because [t]he issue of paternity is not collateral to the principle issue of child support, given that the issue as to Mr. Conners s paternity is directly related to the merits of the action if he is not [the child s] father, he will not be subject to the court s child support order. We agree that the orders denying Wilkinson s requests to disestablish paternity do not meet the requirement that they must be completely separable from and collateral to the merits of the action. Harris v. State, 420 Md. 300, 318 (2011). To be reviewable under the collateral order doctrine, an order may not resolve an issue that is critical to the ultimate determination of the underlying action. Hudson v. Hous. Auth. of Baltimore City, 402 Md. 18, 26 (2007). Rather, the order must involve a situation far removed from the facts of the instant case. In re Foley, 373 Md. 627, 636 (2003). The question raised by Conners s motions, i.e., whether he is the child s father, is neither collateral nor far removed from the facts of this child support action. To the - 7 -
contrary, a paternity finding is a necessary foundation for any award of child support because the legal obligation to support children arises out of parenthood. Bledsoe v. Bledsoe, 294 Md. 183, 193 (1982). See generally Md. Code, 5-203(b) of the Family Law Article ( The parents of a minor child... are jointly and severally responsible for the child s support, care, nurture, welfare, and education. ); Lacy v. Arvin, 140 Md. App. 412, 422 (2001) ( The parents of a child are his natural guardians and, quite apart from the moral obligations of parenthood, owe the child a legal, statutory obligation of support. ). Indeed, paternity is critical to the ultimate determination of child support because [i]n the absence of parenthood status, the duty that is normally cast upon parents, e.g. the duty of child support, can no longer exist. Walter v.gunter, 367 Md. 386, 396, 403 (2002) ( dependent paternity orders are invalid once the paternity declaration is vacated ). Moreover, Conners cannot satisfy the fourth requirement that the contested ruling must be effectively unreviewable on appeal from a final judgment. The Court of Appeals has cautioned that this fourth prong, unreviewability on appeal, is not satisfied except in extraordinary situations. Nnoli v. Nnoli, 389 Md. 315, 329 (2005). When the contested interlocutory ruling can be challenged in the course of an appeal from a final judgment, the interlocutory ruling is not reviewable under the collateral order doctrine. See, e.g., id. ( The mere fact that an order denies a claim of a right to participate in some aspects of the legal proceedings... does not mean the order presents an extraordinary situation ). Here, the denial of Conners s motions challenging his paternity did not present an extraordinary situation warranting an immediate interlocutory appeal, because such orders easily could -8-
have been reviewed in the course of a properly noted appeal challenging the final child support award. Accordingly, we conclude that this appeal was premature because neither the denial of Conners s motion to disestablish paternity nor the denial of his motion to reconsider that ruling were appealable as either a final judgment or an appealable interlocutory order. Although Conners could have obtained appellate review of those orders by simply noting an appeal from the final judgment adjudicating his child support obligation, he failed to do so. This Court cannot remedy that omission. In these circumstances, we do not have discretion to treat Conners s premature notice of appeal as having been filed after the entry of final judgment. Specifically, the savings rule that allows an appellate court to treat a prematurely filed notice of appeal as having been filed after entry of final judgment does not apply when, as in this case, the notice of appeal was taken from an order that was not intended to finally dispose of all claims. See generally Md. Rule 8-602(d) ( A notice of appeal filed after the announcement or signing by the trial court of a ruling, decision, order or judgment but before entry of the ruling, decision, order or judgment on the docket shall be treated as filed on the same day as, but after, the entry on the docket. ); Md. Rule 8-602(e) (similarly permitting retroactive entry of judgment on the basis of an order that adjudicates all claims against a single party in a multi-party proceeding). Cf. Appiah v. Hall, 183 Md. App. 606, 617 (appellate court exercised discretion to retroactively enter final judgment where appellants appealed summary judgment order adjudicating rights and liabilities of all parties), aff d on other grounds, 408 Md. 148 (2008); Carr v. Lee, 135 Md. App. 213, 224, -9-
226 (2000) (recognizing that the savings provision in 8-602 (e) is only applicable in multiclaim cases when there has been a complete decision with respect to a party or claim and that Rule 8-602(d) cannot be used to save a premature appeal from an order that did not resolve all issues, and was not a final judgment ), cert. denied, 363 Md. 206 (2001). Because the lack of a final judgment or appealable interlocutory order is a 29 (dismissing prematurely filed appeal because [w]e may not confer appellate jurisdiction on our own initiative[,] and the appeal was not filed within the time prescribed by Rule 8-202, and does not fit within the any of the applicable savings provisions ). Although dismissal may seem to be a harsh measure, it has been deemed necessary to promote the judicial system s interest in finality of judgment and confidence in the judicial disposition of disputes. Id. at 229 (citation omitted). APPEAL FROM ORDER DENYING RECONSIDERATION OF APPELLANT S MOTION TO DISESTABLISH PATERNITY DISMISSED. COSTS TO BE PAID BY APPELLANT. jurisdictional defect, we are required to dismiss this appeal. Cf. Carr, 135 Md. App. at 228- -10-