M v. W

• Decision Date: 12 June 1967
• Docket Number: W---,M---
• Citation: 227 N.E.2d 469,352 Mass. 704
• Parties: v.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 469

227 N.E.2d 469

352 Mass. 704

M--- v. W---.

Supreme Judicial Court of Massachusetts, Bristol.

Argued April 7, 1967.

Decided June 12, 1967.

Melvin S. Louison, Taunton (Albert J. Fayad, Brockton, with him), for respondent.

Morton H. Aronson, Boston, for petitioner.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and REARDON, JJ.

CUTTER, Justice.

The petitioner under G.L. c. 273A, the Uniform Reciprocal Enforcement of Support Act (see c. 273A, § 17), seeks support for her minor child. The petition was filed in 1964 in the Family Court, Rockland County, State of New York, under the New York Uniform Support of Dependents Law, which is substantially similar to G.L. c. 273A. The petition alleged (1) that the respondent is the father of the petitioner's child, then seven months old, (2) that the respondent is a college student residing in Massachusetts, and (3) that he has neglected to provide fair and reasonable support for the petitioner and the child. In sworn written assertions, attached to the petition under the heading, 'Testimony of Petitioner,' the petitioner states, among other things, that she lives in the State of New York, that she has never been married, that she never lived with the respondent, that there was (at the time of the testimony) no outstanding complaint or order for support, that she is living with her parents who support her and her baby, and that a 'private investigator hired by * * * (her) has a statement from the respondent in which * * * (he) admits having sexual relations with' her.

The papers were forwarded ¹ to the First District Court of Bristol in accordance with G.L. c. 273A, and were filed in that court on September 2, 1964. After trial in that court on June 22, 1965, the judge found that the respondent was the father of the child and that the 'respondent gave the petitioner a false name * * * during the time of their meetings * * * (so that) it was necessary for the petitioner to hire a lawyer and a private investigator.' The respondent was ordered to pay support of $10 a week plus medical, legal, and investigation bills.

There was the following testimony at the trial. The respondent attended an athletic tournament in New York City on March 20, 1963. There he met the petitioner, a high school student. They had sexual relations on March 21, 1963, as the respondent admitted to one Stawinsky, a private investigator. A baby was born on December 20, 1963. The respondent's domicil is in Massachusetts. The petitioner has her domicil in New York. The child lives with her there.

The respondent requested, and the trial judge denied, rulings (a) that as matter of law there must be a finding for the respondent, and (b) that an 'adjudication of paternity may not be made under' G.L. c. 273A. The Appellate Division dismissed a report.

1. The evidence warranted the trial judge (if he had jurisdiction to consider that issue) in deciding that the respondent was the father of the petitioner's child. The essential question, raised clearly by the second request for ruling, is whether the District Court could properly determine the contested issue of paternity in this proceeding under G.L. c. 273A.

2. The proceedings are civil. 'The purpose of the uniform act (c. 273A) is to provide an effective procedure to compel performance by one under a duty to support dependents in another State'. See Phillips v. Phillips, 336 Mass. 561, 562-563, 146 N.E.2d 919, 920. ² See also Keene v. Toth, 335 Mass. 591, 593, 141 N.E.2d 509.

This court, in these cases, has recognized the requirement of c. 273A, § 17, that the act 'shall be so construed and interpreted as to accomplish its general purpose' (see Kirby v. Kirby, 338 Mass. 263, 269, 155 N.E.2d 165) and has avoided restrictive application of its provisions. The civil remedies afforded by this statute are not to be construed narrowly and every 'endeavor should be made * * * to render this statute operable'. See Pfueller v. Pfueller, 37 N.J.Super. 106, 109, 117 A.2d 30, 32. See also Lambrou v. Berna, 154 Me. 352, 356, 148 A.2d 697; State of Ill. ex rel. Shannon v. Sterling, 248 Minn. 266, 274-275, 80 N.W.2d 13; Daly v. Daly, 39 N.J.Super. 117, 128, 120 A.2d 510; Re Duncan, 172 N.E.2d 478, 480-481 (Ct.App.Ohio); Commonwealth v. Shaffer, 175 Pa.Super. 100, 106, 103 A.2d 430; note, 45 Ill.L.Rev. 252, 262.

Pertinent provisions of c. 273A (in general as amended through St.1954, c. 556, § 1) are set out in the margin. ³ These statutory provisions, and others mentioned below, provide a procedure which may be summarized as follows. (1) The appropriate court ⁴ of the initiating State, that is, the State (here New York) of residence of the obligee, here the child (see § 6), determines that there exists probable cause for enforcement of a right of support under c. 273A. See § 8; Kirby v. Kirby, 338 Mass. 263, 269, 155 N.E.2d 165. (2) That court transmits to the appropriate court of the responding State the petition and other appropriate documents. (3) The proper court in the responding State (here Massachusetts) proceeds to 'a speedy hearing.' See § 9. ⁵ It then determines (§ 10) whether a 'duty of support' exists. (4) If 'the court finds (that such) a duty of support' exists, it may issue an appropriate order. See Brockelbank, Interstate Enforcement of Family Support, pp. 47-65.

Because (§ 2) the remedies in c. 273A 'are in addition to * * * any other remedy' (see Helgesson v. Helgesson, 196 F.Supp. 42, 46 (D.Mass.), affd. 295 F.2d 37 (1st Cir.)), 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 procedures provided by other statutes (in the responding State) for enforcement of the same support obligation. Chapter 273A provides its own procedures.

Support is now sought for a period during which the respondent has been a resident of Massachusetts. ⁶ This Commonwealth, by G.L. c. 273, § 15, places a father under a legal duty to support an illegitimate child wherever begotten. ⁷ Section 15 is a criminal statute for it creates a misdemeanor. Although criminal in form, it is sometimes regarded and used as a method of enforcing a support duty. That this is so is indicated by G.L. c. 273, § 17 (as amended through St.1953, c. 163), permitting the dismissal of a complaint on various grounds, including the fact 'that adequate provision has been made for its (the child's) maintenance, or that it is for the best interests of the child'. In any event, even though in form a criminal statute, c. 273, § 15, clearly establishes the civil duty of a natural father to support a child of his born out of wedlock. The question for decision is whether the existence of his relationship to the child (that is, his paternity) can be established in a civil proceeding under c. 273A, where Massachusetts is a responding State.

No practical considerations preclude having the Massachusetts District Courts determine paternity in civil proceedings under c. 273A. These courts ⁸ habitually make such determinations in criminal proceedings under c. 273, §§ 11-18. The principal difference between a civil proceeding under c. 273A and a quasi-criminal nonsupport prosecution under c. 273 is that appellate review under c. 273A will be by the Appellate Division (see St.1954, c. 556, § 9) rather than (as under c. 273) to the Superior Court with a jury trial de novo. These courts have available to them in civil proceedings under c. 273A at least the same powers of investigation available to them under c. 273. ⁹

We recognize that in many proceedings under c. 273A, especially where there is little dispute on the facts, the petitioner may never appear in person in the court of the responding State. See Brockelbank, op. cit. pp. 51-53. ¹⁰ See also Aberlin v. Aberlin, 3 A.D.2d 417, 419, 421, 161 N.Y.S.2d 305. Evidence often is offered only by deposition or through the respondent. In a contested paternity case this may not be at all appropriate, for the issues are such that presence of the parties before the trier of the fact may be of great importance. No such problem, however, exists in the present case for the petitioner, her father, the respondent, and other witnesses were all present in person in the District Court and testified. In such circumstances, considerations of prompt adjudication and of carrying out the beneficial purposes of the uniform reciprocal support act lead to determination, in the civil c. 273A proceedings, of the civil issue whether a duty of support exists because of paternity. See Brockelbank, op. cit. pp. 57-58. We construe c. 273A (even if it is largely procedural and even though it creates no new substantive rights or duties) as providing a new and additional civil remedy (§ 2, fn. 3) for the enforcement of all relevant pree xisting substantive rights. See Ivey v. Ayers, 301 S.W.2d 790, 794-797 (Mo.). See also Smith v. Smith, 131 Cal.App.2d 764, 770, 281 P.2d 274; State of Illinois ex rel. Shannon v. Sterling, 248 Minn. 266, 274, 80 N.W.2d 13; Commonwealth v. Shaffer, 175 Pa.Super. 100, 108-109, 103 A.2d 430.

The broad language of c. 273A, § 10, permits enforcement of the support obligation, if 'the court finds a duty of support'. We regard this language as specifically and adequately placing this civil remedy in the District Court and enabling the judges of that court to make in civil proceedings under c. 273A the same type of determination of paternity (as a basis of finding a 'duty of support') which it is clearly possible for them to make in criminal proceedings under c. 273.

Chapter 273A provides for the enforcement of a duty of support which is essentially equitable in character. See Town of Hatfield v. Klimoski, 338 Mass. 81, 83-84, 153 N.E.2d 648; Commonwealth of Pennsylvania, for use of Warren v. Warren, 204 Md. 467, 472-475, 105 A.2d 488. Cf. Commonwealth v. Dillworth, Pa. ^a Because proceedings under c. 273A have no criminal...