Home COMMONWEALTH vs. JOSEPH MICHAEL CARDILE.

12 Mass. App. Ct. 872

June 8, 1981

The defendant was found guilty of nonsupport in a jury-of-six session in the Boston Municipal Court on a complaint originating in the Dorchester District Court. Pursuant to G. L. c. 273, Section 5, a support order was entered after his conviction, and the defendant was placed on probation. Subsequently, the support order was increased by a judge of the Dorchester District Court. The only claim made by the defendant in this appeal from the denial of his motion for postconviction relief, Mass.R.Crim.P. 30(a), 378 Mass. 900 (1979), is that a judge of the Dorchester District Court lacks jurisdiction to modify a support order entered by the Boston Municipal Court judge. We hold that he has such jurisdiction. (The defendant makes no claim that the revision of the support order is otherwise improper.)

General Laws c. 273, Section 5, provides that after conviction "the court . . . may make an order, which shall be subject to change from time to time as circumstances may require, directing the defendant to pay certain sums periodically, for a term not exceeding six years." The defendant argues that the term "the court" means only the court making the original order, that is, in this case, the Boston Municipal Court. We reject this contention. A court order for support under G. L. c. 273, Section 5, can be operative for as long as six years, and may require revision "from time to time" as "circumstances" change. There is nothing in the language of G. L. c. 273, Section 5, to support the defendant's construction that "the court" means only the court which originally issued the order. Cf. Commonwealth v. Mottola, 10 Mass. App. Ct. 775 , 777 (1980) (term "the judge" in Mass.R.Crim.P. 15[a][3][B], 378 Mass. 883 [1979], not limited to the judge who heard the original motion).

Following the recommendations of the Report on the State of the Massachusetts Courts 30-35 (1976) (Cox Committee report), appeals to the Superior Court for a trial de novo were abolished and jury-of-six sessions were provided in the District Courts. G. L. c. 218, Sections 26A & 27A. Paragraph (i) of G. L. c. 218, Section 27A, indicates that the jury-of-six sessions were not intended to diminish the jurisdiction of the local community

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courts over support orders which require ongoing supervision. Paragraph (i), inserted by St. 1978, c. 478, Section 189, provides, "In any case heard in a jury-of-six session where a defendant is found guilty and placed on probation, he shall thereafter be supervised by the probation officer of the court in which the case originated." Although the Chief Administrative Justice has certain powers with respect to probation officers, see G. L. c. 211B, Sections 8 and 9, under the statutory scheme of probation, officers report to the Commissioner of Probation, G. L. c. 276, Section 100, and not to the judiciary as a whole. The judges of the District Courts appoint such probation officers "as they . . . deem necessary for their respective courts," G. L. c. 276, Section 83, as appearing in St. 1978, c. 478, Section 290, and such officers report to the court "under the appointment of which [they] act[ ]." G. L. c. 276, Section 85. See also G. L. c. 276, Section 87.

Section 27A(i) of G. L. c. 218, which provides for supervision of a defendant by the probation officer of the originating court makes sense only if that court is empowered to make appropriate orders. By arguing that the Boston Municipal Court is the only court which may revise the order entered under G. L. c. 273, Section 5, the defendant would deprive of jurisdiction the court having the most information and the one to which the probation officer supervising the defendant reports. The policy expressed in G. L. c. 218, Section 27A(i), militates against this conclusion. See also Cox Committee report, supra at 34, where, in a somewhat different context, it was noted that "district judges are familiar with the community, its economic situation, and the employment opportunities. They can best judge what support is reasonable and whether the violation is willful."

Because of our construction of G. L. c. 273, Section 5, if for no other reason, we do not think the use of the term "trial judge" in Mass.R.Crim.P. 29(a), 378 Mass. 899 (1979), requires a different result.

Since the defendant's construction is unsupported by statute or judicial authority, the order denying postconviction relief is affirmed.

So ordered.