Surber v. Pearce

• Decision Date: 27 November 1963
• Docket Number: 10415,Nos. 10414,s. 10414
• Citation: 97 R.I. 40,195 A.2d 541
• Parties: Ruth T. SURBER v. David Eugene PEARCE (two cases). Ex.
• Court: Rhode Island Supreme Court

Page 541

195 A.2d 541

97 R.I. 40

Ruth T. SURBER v. David Eugene PEARCE (two cases).

Ex. Nos. 10414, 10415.

Supreme Court of Rhode Island.

Nov. 27, 1963.

Norbert Fessel, Westerly, for complainant.

Natale L. Urso, Westerly, Howard R. Haronian, Providence, for respondent.

JOSLIN, Justice.

These are two complaints brought under G.L.1956, chapter 8 of title 15, as amended, entitled 'Bastardy Proceedings.' After a hearing before a judge of the juvenile court the respondent was on June 16, 1961 found guilty in each case and adjudged the putative father of two of the complainant's children. He was ordered to pay a sum certain in each case for the complainant's medical expenses, to pay a sum each week for the support of each child until he or she should reach 18 years of age, and to post a surety bond in the amount of $1,000 in each case in the event of appeal. Thereafter a hearing was held before a justice of the family court on the complainant's motions to adjudge the respondent in contempt for failure to make the payments ordered and on the respondent's motions to vacate the orders of June 16, 1961 on jurisdictional and other grounds. By decrees of the family court entered in each case the motions to vacate were denied and he was adjudged in contempt and ordered to make certain payments to the complainant. From such decrees the respondent prosecutes his bills of exceptions to this court. Since the issues in each case are identical, we shall discuss the cases as though but one was before us, but our decision will apply with equal force to both cases.

We have no stenographic transcript before us of either the proceedings before the juvenile court or the family court. The factual basis for this proceeding must therefore be limited to docket entries and uncontroverted facts set forth in the pleadings or agreed to by the parties. From these it appears that complainant is a resident of Pawcatuck, Connecticut, and respondent of Westerly, Rhode Island. Neither party is married. The child is presently in the custody of a welfare agency in Connecticut. The allegation of respondent in his motion to vacate as to a lack of credible evidence to establish paternity was not urged before us and paternity therefore is not an issue. Likewise, not before us are exceptions not briefed or argued which are deemed to have been waived.

The controlling statutes are G.L.1956, §§ 14-1-5, subd. C and 15-8-1, both of which are set forth in full in the appendix hereto, the italicized portion of the latter having been added thereto by P.L.1949, chap. 2322.

The respondent argues first that the juvenile court was without jurisdiction to enter the order of June 16, 1961 since neither complainant nor her child was at that time resident in Rhode Island. Such contention was decided by us adversely to the position urged by respondent in Vezina v. Bodreau, 86 R.I. 87, 91, 133 A.2d 753, where we held that by virtue of the 1949 amendment of § 15-8-1 any woman within the state who is the mother of an illegitimate child or an expected illegitimate child may commence bastardy proceedings against the putative father without regard to the situs of her domicile or residence or that of her child so long as her complaint be made within the state.

The respondent contends, however, that the residence requirements of § 14-1-5, subd. C were not raised in Vezina and were not considered by us. That section at the time of our decision granted exclusive original jurisdiction to the juvenile court to determine the paternity and provide for the support of any child alleged to have been born out of wedlock 'in case such child or its mother has residence within the state.' It is respondent's contention that however § 15-8-1 may be interpreted, it is § 14-1-5, subd. C which controls and that it limits the jurisdiction of the juvenile court to determine paternity of children born out of wedlock to instances where 'such child or its mother has residence within the state.' With this contention we cannot agree.

Prior to the 1949 amendment of § 15-8-1 action thereunder could not be brought by a mother, but only by the director of public welfare of any town or by a person designated and appointed by the director of the state department of public welfare. It was under the statute as it existed prior to 1949 that this court in 1943 decided Kenyon v. Parzych, 69 R.I. 139, 143, 31 A.2d 476, 479. There we held that the purpose of bastardy proceedings 'is not punishment but to save the town from the expense incident to the birth of the child and its care and support until it reaches the age of sixteen.' This was in accord with the historical view that the purpose of a bastardy act was to secure the maintenance of illegitimate children liable to become paupers and objects of governmental support.

By the 1949 amendment, however, the legislature provided that a putative father should not escape from the consequences of his illegal act by the happenstance that the state of residence of the mother or child differs from that of the father. In so providing, the legislature recognized a duality in the purpose of statutes of this kind and that not only do they exist to alleviate demands upon the welfare rolls, but also that they have as a legitimate object the imposition of an obligation on the putative father to provide both for the lying-in expenses of the mother and for the support of the illegitimate child. State v. Tetreault, 97 N.H. 260, 85 A.2d 386; Commonwealth v. Dornes, 239 Mass. 592, 594, 132 N.E. 363; Restatement, Conflict of Laws § 455, p. 545; 2 Beale, Conflict of Laws § 454.1, p. 1430.

The respondent contends that § 14-1-5, subd. C enacted in 1944, providing as it does that the juvenile court's jurisdiction in paternity cases is limited to instances where either the mother or child has residence in this state, is in conflict with § 15-8-1 as amended in 1949. If such conflict does exist, it can in our view be reasonably resolved by application of the well-settled rule of statutory construction, 'that of two irreconcilably repugnant provisions therein the one which is last in order of time is to be preferred * * *.' Opinion to the Governor, 78 R.I. 144, 149, 80 A.2d 165, 168.

In addition, the 1949 amendment of § 15-8-1 provided that it should take effect upon its passage and that 'all acts and parts of acts inconsistent herewith are hereby repealed.' The legislative intent to which we have alluded as inducing the enactment of the 1949 amendment evidenced a purpose that the residence requirements of § 14-1-5, subd. C be embraced by the repealer and those requirements were as effectively repealed by it as if they had been specifically referred to therein. Burdick v. Coates, 22 R.I. 410, 413, 48 A. 389.

The respondent next contends that he has been deprived of his right of appeal herein by reason of the enactment of chap. 73 of P.L.1961, the family court act. By § 15-8-8 as it stood as of June 16, 1961 respondent had the right to appeal from a judgment of the juvenile court to the superior court and to claim a jury trial therein. On June 3, 1961 the legislature enacted the family court act. The relevant portions thereof in summary are: Section 1(8-10-3) which, inter alia, gave the family court jurisdiction to hear and determine matters relative to paternity of children born out of wedlock; Sec. 9(15-8-8) which provided that in bastardy proceedings the accused should have a right to trial by jury; Sec. 14 which provided that the words 'Juvenile court' wherever in any general or public law should mean 'Family court' and that reference in title 15 to the superior court should mean the family court; and Sec. 20 which provided that all the provisions of the act with which we are here concerned should take effect on September 1, 1961 and that upon the establishment of the family court...