Kamp v. Department of Human Services

980 A.2d 448

410 Md. 645

Darren Gerard KAMP v. DEPARTMENT OF HUMAN SERVICES, Garrett County Department of Social Services, Bureau of Support Enforcement, Ex Rel Vicki Jo Duckworth.

No. 81, September Term, 2008.

Court of Appeals of Maryland.

September 21, 2009.

G. Gary Hanna (Law Office of G. Gary Hanna of Cumberland), on brief, for petitioner.

Joseph B. Spillman, Asst. Atty Gen. (Douglas F. Gansler, Atty. Gen., of Maryland, of Baltimore), on brief, for respondents.

BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, LAWRENCE F. RODOWSKY (Retired, specially assigned) and ALAN M. WILNER (Retired, specially assigned), JJ.

BELL, C.J.

At issue in the instant appeal is the propriety of two rulings made by the Circuit Court for Garret County, the result of which was the entry of judgment in favor of Darren Gerald Kamp, the petitioner, and against the Garrett County Department of Social Services, Bureau of Support Enforcement, the respondent, appearing ex rel. Vicki Jo Duckworth (Ms. Duckworth).¹ The first ruling was the trial court's post divorce order that DNA paternity testing be conducted to determine whether the petitioner was the biological father of a child born during his marriage to Ms. Duckworth, his divorced spouse. The result of the DNA testing was the basis for the second challenged ruling, the trial court order that the petitioner's child support obligation to the child the DNA testing determined he did not father be terminated. The respondent challenged these rulings in an appeal to the Court of Special Appeals, which, agreeing with the respondent, vacated the judgment on which the challenged rulings were based and remanded the case to the trial court for further proceedings. Dep't of Human Resources v. Kamp, 180 Md.App. 166, 949 A.2d 43 (2008). For reasons set forth below, we shall affirm the decision of the Court of Special Appeals.

I.

The petitioner and Ms. Duckworth were married on September 13, 1983. The couple had three children whose paternity is neither questioned nor the subject of the proceedings sub judice. The child whose paternity is at issue in these proceedings, Julie Kamp, was conceived in the early half of 1992, when Ms. Duckworth became pregnant with a fourth child. This is significant because the petitioner had had a vasectomy performed in approximately June, 1987. Also, when Julie was conceived, the petitioner was employed out of state in Ravenswood, West Virginia. As a result, although the couple engaged in sexual relations when the petitioner was home, the petitioner was home only on an inconsistent basis.² Both the petitioner and Ms. Duckworth testified that both of them were aware, when Ms. Duckworth was found to be pregnant, that Julie was not, or possibly was not, the petitioner's biological child.

For her part, Ms. Duckworth had the following exchange with the petitioner's counsel:

"[MR. HANNA]: Following the conception of Julie, did you have any questions in your mind as to who the father was?

"[MS. DUCKWORTH]: No.

"[MR. HANNA]: Okay. Who was the father as far as you know?

"[MS. DUCKWORTH]: James Stanton.

"[MR. HANNA]: At the time you were having sexual relations though, were you not with Darren?

"[MS. DUCKWORTH]: No, not during the time I conceived. No. Darren and I were having marital problems and he was staying with a friend of his in West Virginia and had had sexual relations with another woman. That's what spawned all of this.

"[MR. HANNA]: Did the two of you have any discussions concerning paternity of Julie?

"[MS. DUCKWORTH]: Yes.

"[MR. HANNA]: And what was the nature of those discussions? The very next day after I had sexual relations with Jamie, I had called Darren and I had told him what had happened. And, we both know it's very easy for me to get pregnant. It always was. And he told me to wait a week or two and go get a pregnancy test done and we'll decide what to do from there. I waited a week or two, went and got a pregnancy test done, which, of course, came back positive."

Later, the petitioner testified at the hearing on the Motion to Modify Child Support and the Motion to Set Aside Paternity. He admitted, in an exchange with Donald Davis, counsel for the State, that he knew that he could not possibly be Julie's father:

"[MR. DAVIS]: Okay. And isn't it true that the time leading up to when she became pregnant, you were during one of those periods where you were out of town for a while. And that's why you would ask her to get the pregnancy test right away because you knew at that point you weren't the one who could have impregnated her at that point. Isn't that why you asked for the test?

"[MR. KAMP]: Yes."

According to Ms. Duckworth, both she and the petitioner discussed their options, including the possibility of abortion and adoption. Ms. Duckworth testified that family members, including her parents and her sisters, were involved in the discussion. While the petitioner was not certain, he conceded, as the colloquy with the Master reflects, that he was aware that James Stanton, with whom Ms. Duckworth admitted having an affair, could have been Julie's father.

"[THE MASTER]: So you — were told Mr. Stanton was the father?

"[MR. KAMP]: Well, we assumed because nobody did any other surgery, I guess. I didn't do anything as far as I checked to see if I was a hundred percent.³

"[THE MASTER]: All right. But, what Ms. Duckworth talked about, you and her talked about the possibility of Mr. Stanton was the father?

"[MR. KAMP]: Yes."

Ms. Duckworth, on the other hand, testified that she had no doubt of Julie's paternity, that Mr. Stanton was Julie's father. Before Julie was born on December 10, 1992, however, the couple decided to raise Julie as the petitioner's child.⁴

The couple separated in 1998 and were finally divorced in April of 1999. The Judgment of Divorce incorporated, but did not merge,⁵ the terms of the Voluntary Separation Agreement that the petitioner and Ms. Duckworth agreed to and executed on December 15, 1998. According to that agreement, four children, including Julie, were born of the marriage. The Judgment of Divorce also listed the minor children of the parties. That list included Julie. The Judgment of Divorce, in addition, awarded custody of the four minor children to the parties jointly and ordered the petitioner to pay child support for each of them.

Julie lived primarily with Ms. Duckworth after the divorce, although she went to live with the petitioner, who had remarried, in June of 2001. After residing with the petitioner and his new wife at their home for approximately one year, Julie resumed living with Ms. Duckworth. During the summer of 2001, when she was eight years old, Julie learned that Mr. Stanton, and not the petitioner, was her biological father. It appears that Mr. Stanton's daughter informed Julie one day that they were sisters, a fact that was later verified by Ms. Duckworth. Ms. Duckworth maintains that she provided confirmation only after speaking with the petitioner and obtaining his consent to tell Julie. The petitioner denies that he gave permission to Ms. Duckworth to tell Julie that he was not her biological father.

On January 11, 2002, Ms. Duckworth filed a petition in the Circuit Court for Garrett County asking the court to establish fixed visitation and child support. In her petition, Ms. Duckworth alleged that the petitioner "refused to develop a fixed schedule for visitation with the minor children" and that the petitioner's new wife had "acted in a manner to interfere in matters involving the children and has on several occasions refused to return one or more of the children with the acquiescence of the [petitioner]." Further Ms. Duckworth pleaded:

"The prior Judgment of this Court and the Agreement of the parties requires [petitioner] to pay child support; however, [petitioner] has failed, refused and/or neglected to pay child support in a consistent and reasonable manner, but rather makes unilateral reductions in the amount to be paid based upon what he perceives to be required by the Judgment and Agreement. [Ms. Duckworth] believes that the Court should establish child support in accordance with the Maryland Guidelines and require [petitioner] to pay the same pursuant to an Earnings Withholding Order."

In her amended petition, Ms. Duckworth requested that the court:

"a. Pass an Order establishing a fixed visitation schedule;

"b. Determine the arrearage in child support payments to be made by [petitioner];

"c. Enter a judgment in favor of [Ms. Duckworth] in the amount of any child support arrearage of [petitioner];

"d. Pass an Order establishing child support;

"e. Pass an Order for Earnings Withholdings Order; and

"f. Grant such other relief as the nature of her cause might require."

The petitioner answered the petition on February 27, 2002 and, in addition, filed a counter-petition to establish custody, visitation, and child support. In his answer, the petitioner requested custody of the three children who remained minors, of whom Julie was one.⁶ The parties entered into a Memorandum of Understanding ("MOU") regarding the custody of the minor children on February 3, 2003. In that Memorandum, which was incorporated by the Circuit Court on March 14, 2003, the parties agreed that:

"Four children were born as issue of their now dissolved marriage, of which two have reached the age of majority. There are two remaining minor children, to wit: CASEY, born, February 12, 1998, now age fourteen (14); and JULIE, born December 10, 1992, now age ten (10)."

The parties agreed that Ms. Duckworth would have sole legal custody of the two children and joint physical custody would be shared between the two parties. The petitioner agreed to pay Ms. Duckworth child support in the amount of $100.00 per month. Consistent with the MOU, the court ordered the petitioner to pay child support for Casey and Julie, the two children born "as issue of their now dissolved marriage," who remained minors.

On July 28, 2005, the...