11 Mass. App. Ct. 64 | Mass. App. Ct. | 1980
The defendant was tried without jury in the Superior Court on a complaint under G. L. c. 273, § 15, as appearing in St. 1977, c. 848, § 6.
1. There had been no prior adjudication of paternity, but G. L. c. 273, § 15, as in effect at the time of the alleged of-fence and at the time of the trial1, expressly contemplated that such an adjudication could be made in proceedings brought thereunder.
2. The more difficult question is whether the evidence was sufficient to warrant a finding that the defendant knew or should have known that he was the father of the child, so that it could be inferred that he had “neglect[ed] or refuse[d]” to provide for its maintenance and support within the meaning of § 15. The evidence most favorable to the Commonwealth on this point may be summarized as follows.
As already mentioned, the two acts of intercourse occurred in the middle and latter part of May, 1977. The defendant seems to have disappeared from sight shortly after the second act, and the complainant had no conversation with him at any time thereafter. Some time in June she discovered that she was pregnant. In either the latter part of that month or the early part of July she composed a letter to the defendant in which she advised that she was pregnant by him.
The child was born on February 14, 1978. In the latter part of that month the complainant placed a birth announcement in an envelope bearing the defendant’s name. The announcement, a copy of which was received in evidence, contained a small picture of a baby, the name “Jennifer Lynn [surname of the complainant],” and the date of the child’s birth. Except for the coincidence in surnames, there was nothing on the face of the announcement to indicate the identity of the mother. There was nothing at all to indicate the identity of the father. The complainant mailed the envelope containing the announcement and bearing the defendant’s name to the address of a hairdressing establishment located on Summer Street in Fitchburg. The defendant had never mentioned that establishment to her. She had obtained its name and address from its business card, which bore the defendant’s name. A friend had given the card to her “when I was pregnant.” On the evidence, the “when” could have been any time between June of 1977, when the complainant discovered she was pregnant, and the end of that year. When the card had come into the possession of the friend was similarly shrouded in obscurity. Again, there was no evidence of whether the complainant had placed her name or return address on the envelope.
Except as already indicated, there was no evidence of where the defendant had been employed during any portion of the period between the time when he dropped from sight
3. The Commonwealth has suggested that we should salvage the order for support, as was done in Commonwealth v. MacKenzie, 368 Mass. 613, 617-619 (1975). We think the suggestion fails to apprehend the particular statutory provisions which were involved in that case. There the complaint was under the former G. L. c. 273, § 11. Section 16 of that chapter, as unamended, when read in light of §§ 1 (as amended through St. 1971, c. 762) and 5 (as amended through St. 1925, c. 182) of that chapter, expressly provided that an adjudication of paternity made under § 11 could serve as the basis for the entry of an order for the reasonable support of an illegitimate child.
We think it quite clear that it is only a conviction under the present G. L. c. 273, § 15, that can serve as the basis for an order for support and maintenance under that section or under the present G. L. c. 273, §§ 1 and 5, and that an adjudication of paternity entered under § 15, standing by itself, will not suffice for the purpose now desired by the Commonwealth. As the conviction in this case must be set aside for the reasons already given, there is no basis for salvaging the present order for support and maintenance.
The judgment is reversed, the finding of guilty is set aside, and the complaint is to be dismissed.
So ordered.
“Any parent of an illegitimate child, whether begotten within or without the commonwealth, who neglects or refuses to contribute reasonably to its support and maintenance, shall be guilty of a misdemeanor. If there has been any final adjudication of the paternity of the child, such
There was no express finding of guilty, but the parties have proceeded on the basis that such a finding was implied in the circumstances. Thus, the defendant’s claim of appeal refers to “the verdict of guilty entered December 13, 1978.”
The same is true under the 1979 amendment of § 15 which is referred to in note 1, supra.
General Laws c. 273, § 15, unlike § 13 of that chapter (as appearing in St. 1977, c. 848, § 5), does not impose any liability on the father of an illegitimate child for the expenses of the pregnancy or the confinement of the mother. See Baby X v. Misiano, 373 Mass. 265 (1977), which was decided with reference to G. L. c. 273, §§ 11-15, as in effect prior to St. 1977, c. 848, §§ 5-7. We assume that the evidence as to the complainant’s letter to the defendant was introduced for the purpose of raising an inference that the defendant should have made later inquiry as to whether a child had in fact been born to the complainant.
It will be noted that the complainant did not employ the address of the establishment located on Main Street in Leominster where the defendant had said he “thought he was going to start working.”
If we were to look at the back of the page on which that advertisement was printed, we would discover three advertisements of coming attractions scheduled for the period October 1 through 14, 1977, and an advertisement of a “[fjoliage tour” in New Hampshire. It strikes us as unlikely that any of those attractions or a foliage tour would have been publicized as early as the latter part of June or early July, 1977, which is when the complainant said she mailed her letter.
The complaint issued out of a District Court on March 28, 1978.
As the court noted (368 Mass. at 618), a final adjudication of paternity under § 11 also constituted conclusive evidence of paternity in any prosecution brought under § 15, as unamended.
We are not here concerned with the further amendments of G. L. c. 273, § 5, which were effected in 1978 and 1979.
In Commonwealth v. Gross, 324 Mass. 123, 125 (1949), the offence set out in G. L. c. 273, § 15, as unamended, was characterized as a continuing one. The Commonwealth may wish to consider whether it should now proceed with a new complaint alleging a failure to support during a period subsequent to the one referred to in the present complaint. In any such prosecution, the defendant would be entitled to credit for any payments he has made pending this appeal on the question of what was “reasonable” support and maintenance within the meaning of § 15. We intend no intimation on the question whether the Commonwealth can now proceed under G. L. c. 273, §§ 12, 13 and 16, as now in effect.