Gray v. Commissioner of Revenue

• Decision Date: 16 May 1996
• Parties: Kevin Royce GRAY v. COMMISSIONER OF REVENUE & another. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 17

665 N.E.2d 17

422 Mass. 666

Kevin Royce GRAY v. COMMISSIONER OF REVENUE & another. ¹

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Jan. 11, 1996.

Decided May 16, 1996.

Thomas A. Kenefick, III, Springfield (Barbara J. Sweeney with him) for plaintiff.

Thomas H. Green, III, Assistant Attorney General, for defendant.

Before LIACOS, C.J., and ABRAMS, LYNCH, O'CONNOR and FRIED, JJ.

ABRAMS, Justice.

At issue is whether the Department of Revenue (department) may seize property of a child support obligor in satisfaction of child support arrearages, where the obligor is repaying the arrearages at a rate ordered by a Probate Court judge. The plaintiff, Kevin Royce Gray, asserts that the department's seizure of his bank and credit union accounts constitutes contempt of court and violates his rights to due process. Gray also argues that the seizure and the statute pursuant to which the seizure took place violate art. 30 of the Massachusetts Declaration of Rights, the separation of powers provision of the Massachusetts Constitution. Gray asked the court to hold the department in contempt, order return of his assets, and grant declaratory relief. The case was reported to the Appeals Court and then transferred here on our motion. We rule that the report is not properly before us, and therefore discharge it.

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Procedure. The judge's order is entitled "Report to Appeals Court Pursuant to M.R.A.P. 5." Rule 5 of the Massachusetts Rules of Appellate Procedure, 378 Mass. 930 (1979), does not, however, permit a judge to report a case. It merely provides that a report, properly made, is procedurally equivalent to a notice of appeal. The authority of a Probate Court judge to report a case derives from G.L. c. 215, § 13 (1994 ed.), and Mass.R.Dom.Rel.P. 64 (1996). See Adoption of Thomas, 408 Mass. 446, 448-449, 559 N.E.2d 1230 (1990). ² Under those provisions, a Probate Court judge may report "either the entire case ... or questions raised by interlocutory rulings that 'so affect [ ] the merits of the controversy that the matter ought to be determined by the appeals court.' " Department of Revenue v. B.P., 412 Mass. 1015, 1015-1016, 593 N.E.2d 1305 (1992), quoting Mass.R.Civ.P. 64, 365 Mass. 831 (1974). Absent an interlocutory ruling, the report must be of the entire case because neither G.L. c. 215, § 13, nor Mass.R.Dom.Rel.P. 64 authorize a report of part of a case or a specific question of law. See Dorfman v. Allen, 386 Mass. 136, 138, 434 N.E.2d 1012 (1982), quoting Curran, petitioner, 314 Mass. 91, 94, 49 N.E.2d 432 (1943); Ellis v. Ellis, 413 Mass. 1003, 1004, 597 N.E.2d 420 (1992). Here there was no interlocutory order, and the judge purported to report only one count of a two-count complaint. Therefore, the report must be discharged. See Department of Revenue v. B.P., supra at 1017, 593 N.E.2d 1305; Adoption of Thomas, supra at 448-449, 559 N.E.2d 1230; Dorfman, supra.

The parties have briefed the issues, however, and "[w]e believe the public interest would be best served by our answering the questions posed." Adoption of Thomas, supra at 449, 559 N.E.2d 1230. Accord Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220 (1943) ("in view of the public interest involved and the uncertainty and confusion now existing ... we ought ... to express ... our opinion"). We proceed to do so.

Facts. The facts set forth in the parties' statement of agreed facts are as follows. Georgette Vogel gave birth to her child, Jerry, on November 10, 1979. She applied to the department for child support enforcement services on June 4, 1993. On September 30, 1993, the department filed a complaint seeking to establish Gray's paternity. On December 23, 1993, a Probate Court judge in Hampden County concluded that Gray was Jerry's father and that he owed $17,160 in past due child support. Pursuant to G.L. c. 209C, § 9 (1992 ed.), the judge ordered Gray to pay $110 a week in current child support and an additional $25 a week to be applied toward the arrearage, all by wage assignment.

In a letter dated March 5, 1994, the department notified Gray that it would levy on his property if the arrearage was not paid in full within thirty days. Gray requested an administrative review. He did not dispute the amount owed, but stated that he was repaying it in the manner ordered by the Probate Court judge.

The department did not believe Gray's compliance with the court order limited its authority under G.L. c. 119A to demand and enforce immediate payment in full. Accordingly, on or about April 22, 1994, the department seized $100 from Gray's account at BayBank and $5,187 from Gray's Individual Retirement Account (IRA) at the Pioneer Valley Postal Federal Credit Union.

Amendment to G.L. c. 119A. General Laws c. 119A provides for the enforcement of child support obligations. Chapter 119A was amended in 1994, and the parties dispute which version of c. 119A is applicable. ³

On February 5 and March 5, 1994, the department sent to Gray notices of assessment and levy. Amendments to c. 119A, contained in St.1993, c. 460, became effective on April 13, 1994. ⁴ The seizure of Gray's accounts occurred on April 22, 1994. Gray contends that because the notices were sent prior to the amendments' effective date, the unamended version of c. 119A applies. The department contends that because the amendments were in effect when the seizure took place, the amended version applies. We agree with the department.

A civil statute which extinguishes substantive rights "will not be applied retroactively to pending claims 'unless the Legislature has stated the contrary explicitly.' " Shelby Mut. Ins. Co. v. Commonwealth, 420 Mass. 251, 257, 649 N.E.2d 732 (1995), quoting Austin v. Boston Univ. Hosp., 372 Mass. 654, 657, 363 N.E.2d 515 (1977). "Where, however, [a civil] statute regulates practice, procedure or evidence, as distinguished from substantive rights, it will commonly be applied to actions already pending." Goodwin Bros. Leasing v. Nousis, 373 Mass. 169, 173, 366 N.E.2d 38 (1977) (statute which required filing of certificate as condition precedent to civil action is procedural and may be applied retroactively). See generally 1A Singer, Sutherland Statutory Construction § 22.36 (5th ed.1993). This rule applies to statutory amendments. See Boston v. Keene Corp., 406 Mass. 301, 312-313, 547 N.E.2d 328 (1989) (regarding asbestos liability tort, limitation period is procedural rather than substantive and may be retroactively expanded); LaGrant v. Boston Hous. Auth., 403 Mass. 328, 329, 331, 530 N.E.2d 149 (1988) (repeal of presentment requirement of Massachusetts Tort Claims Act applied retroactively to validate claim); Wetherell v. Boston Mut. Life Ins. Co., 18 Mass.App.Ct. 614, 617 -618, 469 N.E.2d 68 (1984) (statutory amendment granting subject matter jurisdiction in civil actions against Commonwealth held applicable to action filed nine days before amendment's effective date).

Gray received notice prior to the effective date of the amendments to c. 119A, but the actual seizure of his assets occurred after the effective date. Because notice is procedural, see, e.g., Good v. Commissioner of Correction, 417 Mass. 329, 332 n. 2, 629 N.E.2d 1321 (1994); Massachusetts Auto Body Ass'n v. Commissioner of Ins., 409 Mass. 770, 781, 570 N.E.2d 147 (1991), the notice provisions of amended c. 119A may be applied retroactively. Therefore, the amended statute governs this action.

Separation of powers. Article 30 provides: "In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men." ⁵ While we have "insisted on scrupulous observance of [art. 30's] limitations," New Bedford Standard-Times Publishing Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 410, 387 N.E.2d 110 (1979), we have also recognized that some overlap is inevitable, ⁶ and "absolute division of the three general types of functions is neither possible nor always desirable." Commonwealth v. Tate, 34 Mass.App.Ct. 446, 448, 612 N.E.2d 686 (1993), quoting Opinion of the Justices, 365 Mass. 639, 641, 309 N.E.2d 476 (1974). ⁷ Our focus, therefore, is on "the essence of what cannot be tolerated under art. 30 ... interference by one department with the functions of another." Chief Admin. Justice of the Trial Court v. Labor Relations Comm'n, 404 Mass. 53, 56, 533 N.E.2d 1313 (1989), quoting Opinion of the Justices, supra. Accord Babets v. Secretary of Human Servs., 403 Mass. 230, 233, 526 N.E.2d 1261 (1988); New Bedford Standard-Times Publishing Co., supra. The executive and legislative departments impermissibly interfere with judicial functions when they purport to restrict or abolish a court's inherent powers, Brach v. Chief Justice of the Dist. Court Dep't, 386 Mass. 528, 535, 437 N.E.2d 164 (1982); Commonwealth v. Jackson, 369 Mass. 904, 921-922, 344 N.E.2d 166 (1976), or when they purport to reverse, modify, or contravene a court order. See Department of Revenue v. Jarvenpaa, 404 Mass. 177, 183, 534 N.E.2d 286 (1989); Hoffer v. Commissioner of Correction, 397 Mass. 152, 156 (1986); Russell Box Co. v. Commissioner of Corps. & Taxation, 325 Mass. 536, 539, 91 N.E.2d 750 (1950). Gray alleges both types of interference. We address each in turn.

Legislative restriction of court's inherent powers. General Laws c. 209C provides for the rights and protections of children born out of wedlock. G.L. c. 209C, § 1 (1994 ed.). Amendments to chapter 209C became effective on April 13, 1994. St.1995, c. 460. Former c. 209C, § 9(a ), as amended through St.1989, c. 341, § 94, provided, in pertinent part: "the [judge] may order one party to pay the other party ... a...