M v. W
M v. W
Opinion of the Court
The petitioner under G-. L. c. 273A, the Uni-
form 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.
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
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) 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. See also Lambrou v. Berna, 154 Maine, 352, 356; State of Ill. ex rel. Shannon v. Sterling, 248 Minn. 266, 274-275; Daly v. Daly, 39 N. J. Super. 117, 128; Re Duncan, 172 N. E. 2d 478, 480-481 (Ct. App. Ohio); Commonwealth v. Shaffer, 175 Pa. Super. 100, 106; 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.
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
Support is now sought for a period during which the respondent has been a resident of Massachusetts.
No practical considerations preclude having the Massachusetts District Courts determine paternity in civil proceedings under c. 273A. These courts
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.
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 Hatfield v. Klimoski, 338 Mass. 81, 83-84; Commonwealth of Pennsylvania, to the use of Warren v. Warren, 204 Md. 467, 472-475. Because proceedings under c. 273A have no criminal aspect, they are unlike those under c. 273, §§ 11,12, and 15, which, because criminal, afford to a defendant father an appeal (from a conviction in the District Court) to the Superior Court under G. L. c. 278, § 18 (as amended through St. 1955, c. 131, § 8). By c. 273A, § 10, as has been
3. We conclude that the determination of paternity was properly made under c. 273A and that there was no error in denying the respondent’s requested rulings.
Order dismissing report affirmed.
The judge of the Family Court certified that he had examined the petitioner under oath, that the petition “was duly filed . . . under the . . . Uniform Support of Dependent[s] Law ... of New York” and that in his opinion, the respondent “should be compelled to answer such petition and be dealt with according to law.” See Kirby v. Kirby, 338 Mass. 263, 269.
The statute was substantially revised in 1954 on the basis of a study (see Res. 1953, e. 5) contained in the 29th Report of the Judicial Council (1953) Pub. Doc. No. 144, pp. 16-23. See 1954 Senate Doc. Nos. 325, 705; 1954 Senate Journal, p. 936.
Section 1 definitions include — “ ‘Court’, a district court of this commonwealth and, when the context requires, the court of any other state as defined in a [substantially similar] reciprocal law .... ‘Duty of support’, any duty of support imposed by law, or by any court order .... ‘Initiating state’, a state in which a proceeding pursuant to the provisions of this chapter or a [substantially similar] reciprocal law ... is commenced. ‘Obligee’, any person to whom a duty of support is owed. ‘ Obligor’, any person owing a duty of support. ‘Responding state’, a state in which a proceeding pursuant to the proceeding in the initiating state is . . . commenced. ...” Section S states that the remedies under c. 273A are ‘‘in addition to and not in substitution for any other remedy.” Section 3 provides, ‘‘The duty of support imposed by . . . [Massachusetts] laws ... or by the laws of the state where the obligee was present when the failure to support commenced . . . bind the obligor regardless of the presence or residence of the obligee.” Section 4 states that the ‘ ‘ [d]uties of support enforceable under . . . [c. 273A] are those imposed under the laws of any state in which the alleged obligor was present during the period for which support is sought or in which the obligee was present when the failure to support commenced.” Section 6 makes it clear that the enforceable duty of support is ‘ ‘ irrespective of the relationship between the obligor and the obligee” (see amendment by St. 1965, e. 17, § 1, now in effect).
The Family Court in New York is referred to in the comparable provisions of the presently effective New York reciprocal statute. See 14 McKinney’s Consol. Laws (N. Y.) (annotated), Domestic Rel. Law, §§ 30-42 (as amended by Laws 1958, c. 146, § 1), esp. § 31, subpar. 2, as amended by Laws 1962, c. 689, § 15. New York by § 33, subpar. 5, imposes upon parents a duty to support an illegitimate child, although the liability of the natural father is not to be “enforceable unless he has been adjudicated to be the child’s father by a court of competent jurisdiction.” See Re Miller, 114 N. Y. S. 2d 304 (Children’s Court); Goff v. Lops, 28 Misc. 2d (N. Y.) 653 (Children’s Court). See also Anonymous v. Anonymous, 49 Misc. 2d (N. Y.) 675, 677 (Family Court). The Family Court also has jurisdiction of the subject matter of paternity determinations. See the Family Court Act, art. 5, § 511 (and related sections). 29A McKinney’s Consol. Laws (N. Y.) (annotated), part 1, p. 242 et seq. See also Urbancig v. Pipitone, 23 App. Div. 2d (N. Y.) 193; Restatement: Conflict of Laws, §§ 454-456; Lefiar, Conflict of Laws, § 183; annotation, 57 A. L. R. 2d 689.
Section 9 (as amended by St. 1960, c. 42, and by St. 1965, c. 17, § 2) reads, “When the district court receives from a court of an initiating state certified copies of the petition . . . containing the essential allegations” under §§ 6 and 7 “and the certificate referred to in” § 8, it shall “take appropriate steps to obtain jurisdiction of the respondent . . . and schedule the matter for a speedy hearing. ... A statement under oath . . . made by the petitioner ... in such petition shall so far as relevant constitute prima facie evidence on the issues of the existence of the duties to support defined in” §§ 3 and 4, “of the fact of failure to provide such support and of the fact of the unreasonableness of such failure.”
Although c. 273A, § 4, might be interpreted as permitting application of New York law, Massachusetts law is to be applied in deciding this case. See Rosenberg v. Rosenberg, 152 Maine, 161, 163; note, 13 Stanford L. Rev. 901, 905-915. See also State ex rel. Lyon v. Lyon, 75 Nev. 495, 497; Cobbe v. Cobbe, 163 Atl. 2d 333, 336-337 (Mun. Ct. App. D. O.); note, 30 St. John’s L. Rev. 309, 312-315. Cf. Ehrenzweig, Interstate Recognition of Support Duties, 42 Cal. L. Rev. 382.
Section 15 reads, “Any father of an illegitimate child, whether begotten within or without the commonwealth, who neglects ... to contribute reasonably to its support . . ., shall be guilty of a misdemeanor. If there has been any final adjudication of the paternity of the child, such adjudication shall be conclusive on all persons in proceedings under this section; otherwise, the question of paternity shall be determined in proceedings hereunder. The duty to contribute reasonably to the support of such child shall continue during its minority’’ (emphasis supplied). See also e. 273, § 11, relating to the misdemeanor of begetting. Because begetting, to constitute a crime in Massachusetts, must have occurred in this State (see Commonwealth v. Lanoue, 326 Mass. 559, 560-563), § 11 often will have no relevance in a case where Massachusetts is a responding State under e. 273A, unless, of course, the child was begotten here. See also sections related to § 15, e.g. c. 273, §§ 12, 12A, 16._ As a practical matter and in effect § 15 is often applied essentially as a civil remedy much like the Uniform Act on Paternity, drafted in 1960 but not adopted in Massachusetts. See Handbook of the Natl. Conf. of Commrs. on Uniform State Laws, 1960, pp. 178-182; Uniform Laws Annotated, vol. 9B, p. 522, et seq.
The Municipal and District Courts in Massachusetts have jurisdiction of the subject matter (the determination of paternity) under G. L. c. 273, § 15, and related sections, as courts of general and superior jurisdiction with reference to all matters entrusted to them. Vivori v. Fourth, Dist. Court of Berkshire, 323 Mass. 336, 337-338. This jurisdiction by c. 273A has been extended to civil support proceedings under that chapter.
For example c. 273, § 12A, inserted by St. 1954, c. 232, provides (emphasis supplied) for blood grouping tests “ [i]n any proceeding to determine . . . paternity.' ’ On the literal meaning of its words, § 12A is applicable in c. 273A proceedings. In any event, such a test would be admissible in evidence in accordance with principles stated in Commonwealth v. Stappen, 336 Mass. 174, 175-177, and Commonwealth v. D’Avella, 339 Mass. 642, 644-647. The present record does not indicate whether the District Court ordered such tests, often important because of their reliability in certain cases where the resulte indicate “biologically the impossibility of paternity.’' See the Stappen ease at pp. 176—177.
If a nonresident petitioner, however, does not appear herself to testify and to submit to cross-examination, then the District Court may appropriately, by an exercise of its inherent discretionary powers, stay the c. 273A proceedings to give her an opportunity to appear in person, or to allow time for the initiation of proceedings under c. 273, § 15. See Lambrou v. Berna, 154 Maine, 352, 359-362- Pfueller v. Pfueller, 37 N. J. Super. 106, 109-111.
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