Cahill v. State

• Citation: 411 A.2d 317
• Parties: Timothy CAHILL, Defendant-Below, Appellant, v. STATE of Delaware (Bureau of Child Support Enforcement ex rel. Justine Thomas), Plaintiff-Below, Appellee. Conrad WILLIAMS, Defendant-Below, Appellant, v. Barbara A. ROANE, Plaintiff-Below, Appellee.
• Decision Date: 30 January 1980
• Court: Superior Court of Delaware

Page 317

411 A.2d 317

Timothy CAHILL, Defendant-Below, Appellant, v. STATE of Delaware (Bureau of Child Support Enforcement ex

rel. Justine Thomas), Plaintiff-Below, Appellee.

Conrad WILLIAMS, Defendant-Below, Appellant, v. Barbara A. ROANE, Plaintiff-Below, Appellee.

Superior Court of Delaware, New Castle County.

Submitted Jan. 4, 1980.

Decided Jan. 30, 1980.

Motions to Dismiss or Transfer. Denied.

Motions for Jury Trial. Granted.

David C. Carrad, Wilmington, for Cahill.

Arlen B. Mekler and Dennis J. Siebold, Wilmington, for Williams.

James A. Littman, Deputy Atty. Gen., for appellees.

BALICK, Judge.

These are appeals by the putative fathers of illegitimate children from support orders entered by the Family Court in civil enforcement proceedings under Title 13, Chapter 5, Subchapter II. 59 Del.Laws c. 567 (1974). The Supreme Court has recently held that the normal civil burden of proof by a preponderance of the evidence applies in these proceedings. G. L. v. S. D., Del.Supr., 403 A.2d 1121 (1979). Two issues are raised here: (1) whether the appeals should go directly to the Supreme Court and (2) whether there is a constitutional right to a jury trial of the issue of paternity.

The appellees contend that appeals from Family Court support orders now go directly to the Supreme Court on the basis of the following provision in the 1974 act, at 13 Del.C. § 515:

"(a) All parties to a civil action brought pursuant to this chapter shall possess all procedural rights which such parties would have heretofore possessed in an action for support or separate maintenance in the Court of Chancery of the State, including but not limited to the . . . (r)ight to appeal to the Supreme Court of the State, on the record, from interlocutory or final orders or judgments. Such appeal shall be in the form and manner provided by the rules of the Supreme Court.

(b) For purposes of this section, a child born out of wedlock shall possess the same procedural rights as a child born in wedlock and the mother of a child born out of wedlock shall possess the same procedural rights as the mother of a child born in wedlock."

The Supreme Court has held that this means that there is the right of direct appeal to the Supreme Court only in cases formerly within the jurisdiction of the Court of Chancery. Husband G. v. Wife G., Del.Supr., 379 A.2d 1111 (1977). Support of illegitimate children was not formerly within the jurisdiction of the Court of Chancery. M. F. v. F., Del.Chanc., 172 A.2d 274 (1961). It is argued that appeal to Superior Court is inconsistent with paragraph (b) of the statute. See also, G. D. v. State, Del.Supr., 389 A.2d 764, 766 (1978): "support cases are heard by us on the record, 13 Del.C. § 515." This contention would have force unless there is a constitutional right to jury trial of the issue of paternity.

Appeals to this court are also decided on the record, unless otherwise provided by statute. Civil Rule 72(g). Poe v. Poe, Del.Super., 333 A.2d 403 (1975), appeal dismissed, Del.Supr., 348 A.2d 327 (1975). The 1974 act repealed 13 Del.C. 1953 c. 13, Subchapter II, which included the following provision, at § 1332:

"If the appellant, in the causes of appeal, denies that he is the father of the child, the Court shall, without further pleading, order this matter to be tried by a jury at the bar." (Code 1852, § 1484; Code 1915, § 3082; Code 1935, § 3568.)

Since there is no longer statutory provision for jury trial, appellants' demands for jury trial rest on the claim of constitutional right.

The claim is based on Art. I, § 4 of the Constitution of 1897, which says, "Trial by jury shall be as heretofore." The general rule is that state constitutional provisions preserve the right in substance as it existed when the guaranty was adopted. 47 Am.Jur.2d, Jury, § 17; 50 C.J.S. Juries § 10; In re Markel, Del.Supr., 254 A.2d 236 (1969).

The following good statement of the rule by Justice Strong, later of the U.S. Supreme Court, in Byers and Davis v. Commonwealth, Pa.Supr., 42 Pa. 89, 94 (1862), is especially significant because of the similarity of the colonial backgrounds and constitutional guaranties of Pennsylvania and Delaware:

"It is insisted that this act is repugnant to that clause in the declaration of rights in the constitution which guarantees 'that trial by jury shall be as heretofore, and the right thereof remain inviolate.' The objection is based upon a misconception of what that right of trial by jury was which is protected by the constitution. The founders of this state brought with them to their new abode the usages to which they had been accustomed in the land from which they emigrated. Among them was trial by jury. That mode of trial had long been considered the right of every Englishman, and it had come to be regarded as a right too sacred to be surrendered or taken away. Even in England it was fundamental or constitutional, so far as any right can be where there is no written frame of government. Its extent and its privileges, how and when it was to be enjoyed, were perfectly understood, and in bringing it with them the founders of the Commonwealth doubtless intended to bring it as they had enjoyed it. None of the frames of government or constitutions under which we have lived have contemplated any extension of the right beyond the limits within which it had been enjoyed previous to the settlement of the state or the adoption of the constitution. No intention to enlarge it appears in the laws agreed upon in England in 1682. Our first constitution, that of 1776, declared that 'trials by jury shall be as heretofore.' The Constitution of 1790, and the amended one of 1838, adopted substantially the same provision. Their language was, 'trial by jury shall be as heretofore, and the right thereof remain inviolate.' All looked to preservation, not extension. It is the old right, whatever it was, the one previously enjoyed, that must remain inviolable, alike in its mode of enjoyment and in its extent. What, then, was this right thus cherished and thus perpetuated? We inquire not now after the mode in which such a trial was conducted. Our business at present is to ascertain how far the right to a trial by jury extended to what controversies it was applicable. It was a right the title to which is founded upon usage, and its measure is therefore to be sought in the usages which prevailed at the time when it was asserted."

The historical nature of the test is well stated in People v. One 1941 Chevrolet Coupe, Cal.Supr., in Bank, 37 Cal.2d 283, 231 P.2d 832, 835 (1951) (citations omitted):

" 'The right of trial by jury shall be secured to all, and remain inviolate'. The right to trial by jury guaranteed by the Constitution, is the right as it existed at common law at the time the Constitution was adopted. The common law at the time the Constitution was adopted includes not only the lex non scripta but also the written statutes enacted by Parliament. The common law respecting trial by jury as it existed in 1850 is the rule of decision in this state. Any act of Legislature attempting to abridge the constitutional right is void. It is the right to trial by jury as it existed at common law which is preserved; and what that right is, is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact. The right is the historical right enjoyed at the time it was guaranteed by the Constitution. It is necessary, therefore, to ascertain what was the rule of the English common law upon this subject in 1850."

The holdings in the Delaware decisions construing "trial by jury shall be as heretofore" are based on this historical test. In Nance v. Rees, Del.Supr., 161 A.2d 795 (1960), the court traces the practice of using special juries back through an 1810 statute and a 1790 court rule to a statute enacted in England before the revolution. State v. Fossett, Del.Super., 134 A.2d 272 (1957) holds that there is a constitutional right to jury trial in forfeiture proceedings, which are civil in rem actions, although a criminal conviction is a condition precedent. State v. Rossitto, Del.Supr., 331 A.2d 385 (1974). In so holding, the court relied on People v. One 1941 Chevrolet Coupe, cited above, which traces forfeiture proceedings to their origin in statutes enacted in England before the revolution and shows that they were tried before juries. In Hopkins v. Justice of the Peace Court No. 1, Del.Super., 342 A.2d 243 (1975), the court traces jury trials in summary possession proceedings back through a 1793 statute to the common law action of ejectment.

I therefore turn to the history of actions for support against fathers of illegitimate children. The following is quoted from Clark on Domestic Relations (West Pub., Hornbook Series 1968) 162:

"It is often asserted that at common law a father had no duty to support his illegitimate child. Yet from as early as 1576 the Elizabethan Poor Law, by creating the strange hybrid called a bastardy proceeding, provided a method by which fathers could be forced to support their illegitimate children (footnote cites 18 Eliz. I, c. 3 (1576)). The procedure looked criminal, commencing with the arrest of the defendant and including a preliminary hearing before a justice of the peace. Its chief purpose was not so much the protection of the child as the relief of the parish from the expense of supporting the child. Yet it did supply a remedy of sorts. Unfortunately legal conservatism preserved the ancient form when the remedy was brought to this country, thereby creating some wholly unnecessary problems and producing many harsh and unworkable consequences."

As used in the above quotation, "common law" means non-statutory law developed in the ordinary royal courts in England. See Hogue, Origins of the Common Law (Indiana Univ. Press 1966) chap. 8. Unless this is understood, confusion can result from ambiguous usage of the term. For example, it is...