Commonwealth v. LoboCommonwealth v. Lobo
- Reporters:
- , ,
- Before:
- Liacos
Seven questions arising from these cases are before us on a report, prior to trial, to the Appeals Court by a judge of the jury of six session of the Boston Municipal Court.
The judge stated that in “the numerous cases pending in this court there is no uniformity in the manner in which sections 12 and 15 of ch. 273 are being interpreted.” For this reason, and because of the uncertainty generally surrounding the meaning of the statutory pattern for the support of children of unwed parents, we included these cases in the package of opinions on the subject which we discuss today. 5
*439 All the cases reported here began as actions for nonsupport under § 15. 6 The facts of each case are as follows.
Commonwealth vs. Edward J. Lobo. 7 Sometime after a complaint was issued charging the defendant with nonsupport under § 15, the action was redesignated a proceeding under § 12. 8 The defendant appeared pro se, pleaded not guilty, but admitted to sufficient facts to convict, at a bench trial in the District Court. He was adjudicated the father of the child and the judge entered a pendente lite order of $75 a week, which included $5 a week for “arrears.” The defendant’s appeal was entered in the jury of six session of the Boston Municipal Court on April 10, 1981.
Commonwealth vs. Joseph Trusty. On January 28, 1981, the mother of a two and one-half year old child, in conjunction with an employee of the Department of Public Welfare, obtained a complaint under § 15 against this defendant. Trusty was adjudicated the father of the child and was found “guilty” after a jury-waived hearing in the District Court. He was ordered to pay $30 a week, plus $10 a week for “ar *440 rears.” His appeal, taken March 13, 1981, was also entered in the jury of six session of the Boston Municipal Court.
Commonwealth vs. David Murray. The defendant was charged under § 15 with failure to support two illegitimate children, who were then three and one-half and five years of age. The defendant was defaulted, and an arrest warrant issued, after he failed to answer a summons for his appearance. He was arrested and arraigned on March 2, 1981. Prior to trial, the judge dismissed the allegations of nonsupport. 9 Murray was adjudicated the father of the children and appealed. The appeal was entered in the jury of six session of the Boston Municipal Court.
The questions reported by the judge are as follows:
“(1) Does M.G.L. Ch. 273, sec. 12 state a civil cause of action despite language in that section regarding the imposition of a sentence after an adjudication of paternity?
“(2) Does a defendant charged under Ch. 273, sec. 12 have a right of appeal to the Jury of Six Session (M.G.L., Ch. 218, secs. 26A and 27A) or to the Superior Court Department as indicated in Ch. 273, sec. 12?
“(3) Does a defendant have a right to appeal a question of law under Ch. 273, sec. 12 from the primary court to the Appellate Division for resolution?
“(4) If Ch. 273, sec. 12 states a civil cause of action is the Commonwealth of Massachusetts a proper party to bring the complaint?
“(5) Can a trial justice of a primary court impose a pendente lite order under Ch. 273, sec. 12 after the defendant exercises his right to appeal the adjudication of paternity pending the outcome of the trial de nova?
“(6) Can a warrant be issued for the arrest of a defendant under Ch. 273, sec. 12 where he fails to appear after the issuance of a summons?
“(7) Does an order for the repayment to the Department of Public Welfare of money expended by it for support of *441 the minor child following a final adjudication of paternity violate a defendant’s due process rights under the Fifth and Fourteenth Amendments to the United States Constitution?”
Before proceeding to answer the questions reported, we detour for an overview of the statutory provisions for the support of children, born both in and out of wedlock, as they were in effect and material to the present cases. For the purposes of our discussion, the relevant portions of c. 273 are §§ 1 through 18.
In 1911 the Legislature passed the Uniform Desertion Act, which is now codified as
Section 4 11 makes provision for the fashioning of pendente lite orders, the violation of which is punishable “as for a contempt by the court before which the case is then pending.” If such order is made by a District Court judge, the taking of an appeal does not vacate it. See Kelley, petitioner, 292 Mass. 198, 199-200 (1935) (violation of c. 273, §§ 1-4, is a crime, and punishment, by contempt, for failure to comply with pendente lite order is constitutional).
Under § 5, as most recently amended by St. 1979, c. 621, § 1, the court is empowered to order a defendant who pleads guilty or nolo contendere, or who is convicted under § 1, “to pay certain sums periodically, for a term not exceeding six years,” to a probation officer, for disbursement as in § 3. Evidence of a voluntary support agreement, previously executed, is admissible and, if the court finds that the terms are reasonable, an order may include, where appropriate, any arrearages due under the agreement. Section 6 provides for release of a defendant from custody on *443 recognizance or bail. Bail that is forfeited may be ordered paid to the probation department for disbursement under § 5.
As to prosecutions begun under § 1, § 7 states in part that “[n]o other or greater evidence shall be required to prove the marriage of the husband and wife, or that the alleged father is the parent of the child, than may be required to prove the same facts in a civil action.”
Under § 13, after paternity has been determined, the court is empowered to continue the case until the child is born, notwithstanding other laws limiting adjournments or continuances. The court may order payment, to the mother or to a probation officer, of the expenses of pregnancy and confinement. Failure to comply with such orders is punishable, as contempt of court, by a term of imprisonment not to exceed two months. After the adjudication of paternity, § 14 authorizes the court, “as justice and the welfare of the child require,” to make orders, binding on all parties, for the care and custody of the child. 13
*444 Section 15, 14 like §§ 1-4 as to a legitimate child, makes the neglect or refusal, by a parent of an illegitimate child, to contribute reasonably to his or her support and maintenance, a misdemeanor. In addition, this section makes the duty of support a continuing one during the minority of the child.
With this overview of the pertinent provisions of c. 273 in mind, we proceed to the questions reported.
Questions (1), (4), and (6). These questions arise, not surprisingly, with regard to a statutory scheme which has undergone several marked transformations in this century. At common law, there was no legal obligation of the father to support his illegitimate child. Davis v. Misiano, 373 Mass. 261, 263 (1977). Commonwealth v. Dornes, 239 Mass. 592, 593-594 (1921). But see Cahill v. State, 411 A.2d 317, 320 (Del. Super. Ct. 1980) (suggesting that the duty did exist at common law). Such a duty was nevertheless imposed by statute in this Commonwealth as early as 1692, see Province Laws 1692-1693, c. 18, § 5, the purpose of a “bastardy” proceeding being “to redress ... a civil injury . . . [and] to compel the putative father to aid the mother in the support and maintenance of the child.” Hill v. Wells, 6 Pick. 104, 106-108 (1828). While such proceedings were recognized to contain elements of both civil and criminal actions, id. at 106-107, they were held to be, in substance, civil suits. See Corcoran v. Higgins, 194 Mass. 291, 292 (1907); Young v. Makepeace, 103 Mass. 50, 53, 56-57 (1869).
With the passage of St. 1913, c. 563,
15
“the statutes of the Commonwealth [began to express] in a criminal context a father’s responsibility for fathering an illegitimate child.”
*445
Commonwealth
v.
MacKenzie, supra
at 614. See
Commonwealth
v.
Dornes, supra
at 594;
Commonwealth
v.
Mekelburg,
235 Mass. 383 (1920). These statutes, later codified as
Until 1977, § 12 provided the mechanism for appeals from convictions for “begetting” under § 11. With the repeal of § 11, by St. 1977, c. 848, § 7, proceedings to determine the father of the child of unwed parents for purposes of imposing support orders were henceforth governed by § 12. Prior to the repeal of § 11, however, we had occasion to examine the criminal sanctions provided in § 11 for the act of begetting. We concluded that, while a criminal conviction and sentence could not constitutionally be imposed, a complaint under § 11 “may be used to initiate a proceeding to adjudicate paternity . . . [and to provide] a basis for an order directing the father to contribute toward pregnancy expenses . . . and the support of the child.” Commonwealth v. MacKenzie, supra at 618. Having “de-criminalized” § 11, we nevertheless stated that, absent any action to the contrary by the Legislature, “[a]ny proceeding under § 11 should be treated in all respects as a criminal proceeding .... For example, paternity must be established beyond a reasonable doubt and the alleged father may not be compelled to testify.” Id. at 619 n.5. See Davis v. Misiano, supra at 263-264. Cf. Commonwealth v. Possehl, supra (State payment of blood grouping tests for indigent defendants).
With the exception of changes designed to enable c. 273 to withstand constitutional challenge, the Legislature has not yet acted to alter substantially the form of paternity proceedings. Thus, the “criminal attributes . . . retained in
*446
§ 11,”
Davis
v.
Misiano, supra
at 264, after
MacKenzie
and prior to repeal, were simply engrafted to § 12 by the Legislature in 1977. These procedural trappings of a criminal trial, in addition to the criminal law terminology retained in § 12,
16
lead us to characterize proceedings under
We distinguish the nature of an action from its procedural format in order to make clear our use of the term “quasi criminal.” Where the action is quasi criminal in form, but the purpose of the proceeding does not contemplate punishment,, it is by nature civil, or remedial. Cf.
Custody of a Minor,
375 Mass. 733, 746 (1978) (where care and custody proceedings under G. L. c. 119 no longer have as “governing principle” the “discipline” of the parent, proceedings are “civil and not criminal in nature”);
Commonwealth
v.
Lamb,
365 Mass. 265, 269 (1974) (proceedings under G. L. c. 123A, for commitment of sexually dangerous persons, are “civil and nonpunitive in nature”). Given that the support and maintenance of children should be shared by those responsible for bringing them into the world, the primary object of a § 12 proceeding is to identify the father in order to impose on him his obligation and to protect the public from the cost of maintenance. See
Vivori
v.
Fourth Dist. Court of Berkshire, supra
at 337-338. Compare
Commonwealth
*447
v.
Lanoue,
326 Mass. 559, 562 (1950). We have previously held that such a purpose in practice made the “decriminalized” version of c. 273, § 11, remedial and in essence civil.
Sullivan
v.
Commonwealth,
383 Mass. 410, 412 (1981). See
Commonwealth
v.
Dias, post
455 (1982). Compare
Custody of a Minor, supra.
The same reasoning applies to c. 273, § 12. We hold that a paternity proceeding conducted pursuant to
The Legislature has chosen, in enacting G. L. c. 273, to utilize the machinery of the criminal justice system for its enforcement. Compare
Little
v.
Streater,
452 U.S. 1,11-12 (1981). Much, though not all, of the panoply of criminal procedural protections is extended to the putative father.
17
These procedural trappings of a criminal trial are not, as we have said above, sufficient to make § 12 proceedings strictly criminal.
18
Thus, we conclude the answer to question (1)
*448
is that, because a “conviction” under it is not followed by a fine or by imprisonment, but instead by a support order, § 12 sounds civilly though proceedings under it are quasi criminal in form. The answer to question (1) is “Yes.” The issue raised by question (4) is whether, if
In addition, “ [t]he statutory purposes advanced by the Commonwealth [to] support a paternity and child support statute . . . used to establish paternity and oblige the father to contribute toward pregnancy and childbirth expenses . . . [permit] the Legislature to focus statutory attention ... on the fathers of illegitimate children.” Commonwealth v. MacKenzie, 368 Mass, at 616-617. The Commonwealth is a proper party to the complaint.
For the same reasons, and in answer to question (6), the furnishing by the State of its name and its criminal justice machinery to compel performance of the duty to support dependent children necessarily comprehends the issuance of arrest warrants after the failure by a named party to comply with a summons. Cf.
Question (5). Perhaps the most important practical issue presented in this report concerns the authority of a judge of a primary court to impose a pendente lite order under § 12 when the defendant elects to exercise his right to a trial de nova on the issue of paternity. Defendant Lobo argues that the duty to support an illegitimate child does not arise until a final adjudication of paternity, since the duty is statutory and did not exist at common law. He argues that an appeal de nova has the effect of voiding the adjudication of the primary court, and hence an order based on that adjudication cannot be immediately enforceable. See Mann v. Commonwealth, 359 Mass. 661, 666 (1971). But see Rubera v. Commonwealth, 371 Mass. 177, 183 (1976) (fact that judge in bench trial found defendant guilty not a nullity for all purposes because of appeal).
The answer to the defendant’s argument is found in the statute itself. The Legislature has made provision for temporary orders for the support of the child.
The obligation of paying temporary support pending appeal of an adjudication of paternity works an obvious hardship on a defendant later determined not to be responsible for fathering the child. His chances of later recovering his money may be slim,
20
but we see in the statutory pattern a recognition by the Legislature that the interest primarily at stake in the paternity action is that of the child in need of support. Coupled with this is the fact that a § 12 proceeding is not criminal in nature. Compare
Question
(2). At the time the appeals in this case were taken, § 12 expressly provided that “[a]t the sitting when such adjudication is made by a district court, if made after a plea of not guilty, the alleged father may appeal therefrom to the superior court as in other criminal cases.”
21
See
We think this catchall provision applies to adjudications of paternity. Although paternity is not a “crime” in the sense of the first sentence of § 18, sufficient criminal “trappings” have been retained by the Legislature in § 12 to indicate that it intended that these de nova appeals also go to the jury of six session. This conclusion is consistent with the action of the Legislature in later amending § 12 to allow for appeals to a jury of six. See note 21, supra. But see Commonwealth v. Mack, 10 Mass. App. Ct. 816 (1980) (appeal taken prior to the effective date of the Act). Such a “gap” as the temporary exclusion of § 12 adjudications from coverage by c. 218, § 26, is “virtually inevitable in any piece of legislation as complex as the court reorganization plan.” Commonwealth v. Germano, 379 Mass. 268, 273 (1979).
Question
(3). Although we have held that proceedings under § 12 are in essence civil, though in form quasi criminal, the appellate division is not the proper forum in which to bring an appeal from an adjudication.
Question (7). The last question reported asks whether, after a final adjudication of paternity, a judge may enter an order for the repayment to the Department of Public Welfare (department) of money expended by it for the support of a minor child. Since proceedings in these cases have been brought pursuant either to § 12 or to § 15, we answer the question with regard to both provisions of c. 273.
First, we recognize the power given, by statute, to the department to “take all lawful means which shall include, in appropriate cases, the institution of criminal proceedings, to compel all persons bound to support such . . . child or children to support them.”
Proceedings under § 15 are discussed more fully in Commonwealth v. Chase, post 461 (1982). By the terms of our opinion in Chase, no obstacle, constitutional or otherwise, is presented to a retroactive payment order, made after a final conviction of nonsupport and limited to a period of six years next preceding the commencement of the action. By definir *453 tian, a conviction for failure to support must encompass the possibility of retroactive orders. Id. at 470-471.
The same does not hold, however, for such orders made after an adjudication of paternity under § 12. As we have said earlier, see note 13, supra, we discern a legislative expectation that actions involving §§ 12-14 would be brought from a point a few months before, to one shortly after, the birth of the child. Under these sections, the expenses of the pregnancy and confinement of the mother are properly the subject of an order. Failure to comply with the order would be the basis for an action for nonsupport, or a contempt, or both. But to go further and to allow the imposition of retroactive support orders under § 12, is to adopt an interpretation of that section not consistent with the legislative scheme. A retroactive support order under § 12 would have to be based on a finding of a failure to support. Such a finding is reserved to proceedings under § 15. See Commonwealth v. Chase, supra.
Thus, since Commonwealth vs. Edward J. Lobo was transformed from a § 15 to a § 12 proceeding, that portion of the amount in the pendente lite order described as “arrears” was improper. In Commonwealth vs. Joseph Trusty, although the proceedings were held under § 15, the portion of the pendente lite order ascribed to “arrears” was also improper because it was made before a final conviction of nonsupport. See Commonwealth v. Chase, supra. This does not affect the remaining portion of these orders.
We summarize our answers to the questions reported:
Question (1): Yes.
Question (2): To the Jury of Six Session of the District Court Department.
Question (3): No.
Question (4): Yes.
Question (5): Yes.
Question (6): Yes.
Question (7): Orders for reimbursement of any kind may be made only after an adjudication that has become final under § 12 or after final conviction under § 15; but reim *454 bursement payments of “arrearages” claimed to have been incurred prior to an adjudication under § 12 are impermissible.
The cases are remanded to the jury of six session of the Boston Municipal Court for proceedings in accordance with this opinion.
So ordered.
Notes
Commonwealth vs. Carmen Mayo, which was originally included in the cases reported, was later consolidated with another case which raises issues concerning the statute of limitations in paternity cases. See Commonwealth v. Gruttner, post 474 (1982).
General Laws c, 273, § 12, as in effect during the time periods relevant to this case, provided: “Proceedings to determine the father of a child born to an unmarried woman shall be begun, if in the superior court, in the county in which is situated the place where the alleged father or the mother of the illegitimate child lives, and if begun in a district court, in the court having such place within the judicial district. If the alleged father pleads guilty or nolo contendere, or is found guilty, the court shall enter a judgment adjudging him the father of the child; but such adjudication shall not be made after a plea of not guilty, against the objection of the alleged father, until the child is born or the court finds that the mother is at least six months pregnant. At the sitting when such adjudication is made by a district court, if made after a plea of not guilty, the alleged father may appeal therefrom to the superior court as in other criminal cases. The adjudication, whether any sentence be imposed or not, shall be final and conclusive unless an appeal therefrom be taken as hereinbefore provided, or, if such adjudication be made by the superior court, unless set aside upon an appeal taken not later than three days thereafter under section twenty-eight of chapter two hundred and seventy-eight or upon exceptions. Such adjudication may be entered by the superior court notwithstanding exceptions have been alleged or an appeal has been taken. The court making the adjudication may within one year therafter grant a new trial for any cause.”
After the appeals in this case were entered in the jury of six session, § 12 was amended by St. 1981, c. 325. See note 21, infra.
The other opinions in this group are:
Commonwealth
v.
Dias, post
455 (1982) (applicability of doctrines of double jeopardy and collateral
*439
estoppel to actions for the adjudication of paternity and for failure to support;
For reasons that are unclear from the record, two of the actions were transformed into § 12 proceedings for the adjudication of paternity and the entry of support orders. No such transformation was effected in the third case, against the defendant Trusty. It was nevertheless included in the report, which focuses almost entirely on issues related to § 12.
The defendant was charged in two complaints for fathering two children, age five and one-half months and three years respectively, with the same mother. Both complaints are identical in form and only one was reported.
The face of the complaint was changed by striking the word “nonsupport” and the section number 15 and by inserting in place of the latter the section number 12. The complaint continued to allege, however, that the defendant, not being the husband of the complainant, did “beget her with child . . . and . . . has refused and neglected to contribute to the support and maintenance of said child against the peace of said Commonwealth and the form of the statute.”
The face of both these complaints was changed. See note 8, supra. In addition, the allegation of nonsupport was struck from the body of one complaint.
See notes 3 & 4, supra.
We note that
Quoted in note 4, supra.
Chapter 563 “was enacted primarily to further the interests of the child by requiring the father to contribute reasonably to its support so that the child would not become a public charge.” Vivori v. Fourth Dist. Court of Berkshire, 323 Mass. 336, 338 (1948).
Section 12, as in effect during the relevant time periods, provided that if the alleged father “pleads guilty or nolo contendere, or is found guilty, the court shall enter a judgment adjudging him the father of the child,” which judgment, “whether any sentence be imposed or not, shall be final and conclusive unless an appeal therefrom be taken as hereinbefore provided.” Even if we assume such language to be merely vestigial in light of
Commonwealth
v.
MacKenzie,
368 Mass. 613 (1975), proceedings under § 12 are sufficiently imbued with criminal character to be classified as quasi criminal in form. An action is quasi criminal in
nature
where, in addition to having aspects of criminal procedure, it may be seen to have an unseverable and dominant punitive element incorporated as well, either as a sentence, penalty, or fine. Cf.
Commonwealth
v.
One 1972 Chevrolet Van, ante
198, 200-202 & n.2 (1982) (forfeiture proceedings pursuant to
Among these protections, a putative father is afforded the right to remain silent and the right to require proof of his paternity beyond a reasonable doubt. See
Commonwealth
v.
MacKenzie, supra
at 619 n.5. He is also given the right to require a blood grouping test and, if indigent, to have the cost paid by the Commonwealth.
Given the “decriminalization” of the adjudication of paternity, we note the irony of the fact that these questions arise as to the nature of § 12 proceedings begun in the Commonwealth while having been settled some time ago with respect to similar proceedings begun elsewhere and brought here under G. L. c. 273A, the Uniform Reciprocal Enforcement of Support Act. This court held in M_ v. W_, 352 Mass. 704, 706 (1967), that such proceedings to determine the contested issue of paternity, begun in a District Court, are civil, and “the special civil remedy (given to District Courts in Massachusetts) under c. 273A is not in terms dependent upon compliance with the requirements of any other *448 procedures provided by other statutes [in Massachusetts] for enforcement of the same support obligation. Chapter 273A provides its own procedures.” Id. at 708-709.
We note that the provisions of § 16 apply to temporary orders entered after an initial adjudication of paternity made under § 12 or § 15. Thus, pendente lite orders are applicable to § 15 proceedings. See Commonwealth v. Chase, post 468, 452-453 (1982).
We recognize also that a defendant burdened by a pendente lite order of a judge at a bench trial is in that situation because he elected, under c. 218, § 26A, to waive what would have been an initial trial in a jury of six session. See Costarelli, petitioner, 378 Mass. 516, 518 (1979).
Statute 1981, c. 92, amended § 12 to provide that the appellate jurisdiction would be in a jury of six session of the District Court. The amendment was not in effect at the time the appeals in this case were entered.