COMMONWEALTH vs. RAOUL P. GALVIN, JR.

COMMONWEALTH vs. RAOUL P. GALVIN, JR.

388 Mass. 326

December 6, 1982 - March 4, 1983

Plymouth County

Present: ABRAMS, NOLAN, LYNCH, & O'CONNOR, JJ.

An adjudication of paternity made in the course of a proceeding under G.L. c. 273, Section 15, for nonsupport of an illegitimate child does not survive a finding that the defendant is not guilty of wilful or negligent nonsupport. [329-330]

COMPLAINT received and sworn to in the Fourth Plymouth Division of the District Court Department on April 30, 1981.

On appeal to the jury of six session, questions of law were reported by Champagne, J., to the Appeals Court. The Supreme Judicial Court ordered direct review on its own initiative.

Lee M. Berger for the defendant.

Elin H. Graydon for the Commonwealth.

ABRAMS, J. After a bench trial in the first instance, see G.L. c. 218, Section 26A, the defendant Galvin was acquitted of nonsupport of an illegitimate child. G.L. c. 273, Section 15. In the course of the proceedings pursuant to Section 15, [Note 1] a District Court judge determined that Galvin was the child's father, but found him not guilty of wilful or negligent nonsupport.

Page 327

The defendant appealed the adjudication of paternity to the jury-of-six session. G.L. c. 218, Section 27A. G.L. c. 278, Section 18. Prior to trial, he filed a motion to dismiss on the ground that he had been found not guilty of wilful or negligent nonsupport under G.L. c. 273, Section 15. The trial judge reported questions to the Appeals Court concerning whether an adjudication of paternity under G.L. c. 273, Section 15, survives the determination that the defendant is not guilty of wilful or negligent nonsupport. [Note 2] See Mass. R. Crim.P. 34, 378 Mass. 905 (1979). We transferred the case to this court on our own motion. We conclude that the defendant's motion to dismiss should be allowed.

The Commonwealth urges this court to hold that an adjudication of paternity made in the course of G.L. c. 273, Section 15, proceedings survives an acquittal. The Commonwealth argues that we should construe Section 15 as providing for a bifurcated trial and two separate judgments -- a civil judgment of paternity and a criminal conviction of nonsupport. The Commonwealth does not point to any language in Section 15 supporting this assertion, nor to any provision in that section for an appeal of an adjudication of paternity separate from an appeal from conviction of nonsupport. Nevertheless, the Commonwealth advocates that we read into Section 15 the appeal procedure provided for defendants whose paternity is adjudicated in civil proceeding pursuant to Section 12 of the statute. [Note 3] The Commonwealth also asserts that a defendant acquitted of nonsupport in a bench trial but found by a judge in the course of the proceedings to be the child's father has available to him

Page 328

the appeal process available to other defendants convicted of misdemeanors. See G.L. c. 278, Section 18; G.L. c. 218, Section 26A; G.L. c. 218, Section 27A. [Note 4]

"[A] statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Board of Educ. v. Assessor of Worcester, 368 Mass. 511 , 513 (1975), quoting Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360 , 364 (1975). See James J. Welch & Co. v. Deputy Comm'r of Capital Planning & Operations, 387 Mass. 662 , 666 (1982). "[W]e think the plain meaning of the statute is that an adjudication of paternity may be part of the same trial which results in a conviction of neglect or refusal to support the child" (emphasis supplied), Commonwealth v. Chase, 385 Mass. 461 , 466 (1982), but that the adjudication does not survive an acquittal of nonsupport. Had the Commonwealth wanted a separate adjudication of paternity, it should have commenced a proceeding under Section 12.

"When the meaning of any particular section or clause of a statute is questioned, it is proper, no doubt, to look into the other parts of the statute: otherwise the different sections of the same statute might be so construed as to be repugnant, and the intention of the legislature might be defeated. And if upon examination the general meaning and object of the statute should be found inconsistent with the literal import of any particular clause or section, such clause or section must, if possible, be construed according to the spirit of the act." Holbrook v. Holbrook, 1 Pick. 248 , 250 (1823). See Registrar of Motor Vehicles v. Board of Appeal

Page 329

on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580 , 584 (1981). See also 2A C. Sands, Sutherland Statutory Construction Section 46.05 (4th ed. 1973). We look therefore to the entire statutory scheme to determine whether Section 15 permits an adjudication of paternity to survive an acquittal.

The Commonwealth's assertion that Section 15 authorizes two separate judgments misconceives both the function of a Section 15 proceeding, and the "statutory plan set forth by G.L. c. 273, Sections 12-18, for obtaining support for the children of unwed parents." Commonwealth v. Chase, 385 Mass. 461 , 462-463 (1982). Paternity statutes were enacted in an effort to provide support for children from defaulting fathers. Commonwealth v. MacKenzie, 368 Mass. 613 , 617 (1975). Sections 12 through 14 of G.L. c. 273 "contemplate an orderly progression of events, the end result of which is an order for the support of the child." Commonwealth v. Lobo, 385 Mass. 436 , 443 n.13 (1982).

General Laws c. 273, Section 12, provides for an adjudication of paternity and for an appeal from such a determination. Section 12A authorizes a judge, on the motion of the alleged father, to order blood grouping tests in any proceeding to determine paternity. Section 13 authorizes a judge, once paternity is determined, to continue the case until the child is born and allows for payment for the mother's expenses of pregnancy and confinement, and for punishment by contempt of court, with up to two months' imprisonment, for failure to comply with such payment orders. Section 14 authorizes a judge to make orders for the care and custody of the child.

Pursuant to Section 15, a parent may convicted of neglecting or refusing to provide support. Because Section 15 applies to either parent, it necessarily does not provide for a civil judgment of paternity. Section 16, which establishes the penalties for failure to comply with a support order, provides that the father shall be subject to penalties [Note 5] and orders for payment

Page 330

"[a]fter the adjudication and the birth of the child, in proceedings under section twelve, or after conviction, in proceedings under [section 15]" (emphasis supplied). G. L. c. 273, Section 16, as appearing in St. 1977, c. 848, Section 6. As we read the entire statutory scheme, Section 15 is designed to provide criminal penalties for a parent who neglects or wilfully refuses to support.

We are supported in our conclusion by the language of Section 15, which does not provide any appeal procedure except that generally available on conviction of a misdemeanor. G. L. c. 218, Section 27A. To reach the result urged by the Commonwealth, we have to read into Section 15 the appeal procedure of Section 12 [Note 6] and the language of that section which makes and adjudication of paternity "final and conclusive." G. L. c. 273, Section 12. "Such a reading is contrary to the basic structure of the statute and violates the rule that where the Legislature has employed specific language in one paragraph, but not in another, the language should not be implied where it is not present." Beeler v. Downey, 387 Mass. 609 , 616 (1982). "[W]hen the statute appears not to provide for an eventuality, there is no justification for judicial legislation." Commonwealth v. Vickey, 381 Mass. 762 , 767 (1980).

Since Section 15 provides for only one finding, and in this case that finding is not guilty, [Note 7] we remand the case to the jury-of-six session of the District Court, where the defendant's motion to dismiss should be allowed.

So ordered.

FOOTNOTES

[Note 1] General Laws c. 273, Section 15, as amended by St. 1979, c. 621, Section 2, provides in pertinent part: "Any parent of an illegitimate child . . . who neglects or refuses to contribute reasonably to its support and maintenance, 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."

[Note 2] We have reframed the issues in an effort to answer the basic questions raised by the report.

[Note 3] General Laws c. 273, Section 12, as appearing in St. 1981, c. 325, governing the adjudication of paternity provides in pertinent part: "[W]hen such adjudication is made by a district court, if made after a plea of not guilty, the alleged father may appeal therefrom to a jury of six session of the district court department."

[Note 4] Paternity, however, is not a criminal offense. See Commonwealth v. MacKenzie, 368 Mass. 613 , 615-617 (1975). To the extent that the Commonwealth argues that we should consider the defendant as convicted of the lesser included offense of paternity, we reject that argument.

[Note 5] While "[i]t is true that the almost universal practice . . . upon a conviction for nonsupport [is that] the offending parent is placed on conditional probation which is linked to compliance with a support order. . . . , [t]he fact remains, however, that the failure to support a child continues to be `expressed in a criminal context' and is punishable as a misdemeanor." Commonwealth v. Chase, 385 Mass. 461 , 463 (1982), quoting Commonwealth v. MacKenzie, 368 Mass. 613 , 614 (1975).

[Note 6] In 1981, the Legislature amended the appeal provision in G. L. c. 273, Section 12, which governs paternity adjudications. St. 1981, c. 92. The Legislature also could have amended Section 15 to provide for a similar appeal from an adjudication of paternity in the course of a nonsupport proceeding but did not. See Hadley v. Amherst, 372 Mass. 46 , 51 (1977).

[Note 7] Acquittal on a Section 15 complaint does not bar future adjudication of paternity under Section 12. Acquittal on a Section 15 complaint does not bar future prosecution for a subsequent period of nonsupport under Section 15. See Commonwealth v. Dias, 385 Mass. 455 , 458 (1982).