R. J. A. vs. K. A. V. & another. [Note 1]

LAURENCE, J. R.J.A. (the plaintiff), alleging that he was the biological father of two minor children born to the defendant, K.A.V., filed two complaints in the Probate and Family Court against K.A.V. to establish his paternity and to obtain orders relative to custody, visitation and child support. The defendant, asserting that she had been married to another when the children were born, moved to dismiss on the ground, among others, that the plaintiff lacked standing

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under G. L. c. 209C, Section 5(a). [Note 2] The plaintiff argued that the statute, which he conceded denied him standing, violates the due process and equal protection clauses of the United States Constitution.

Upon the Probate Court judge's reservation and report of the issue of the plaintiff's standing to the Appeals Court (pursuant to G. L. c. 215, Section 13), the Supreme Judicial Court granted the defendant's application for direct appellate review. The court ruled that it did not have to reach any constitutional issues, because G. L. c. 209C, Section 5(a), did not bar the plaintiff from invoking the "general equity jurisdiction" of the Probate Court and commencing a "common law action" in that court for the adjudication of paternity. R.J.A. v. K.A.V., 406 Mass. 698, 699 (1990).

The Supreme Judicial Court denied the defendant's motion to dismiss the complaint for lack of standing under c. 209C and remanded the litigation to the Probate Court for further proceedings in accordance with the principles governing "common law actions" to establish paternity that it had enunciated that same day in its opinion in a similar case, C.C. v. A.B., 406 Mass. 679, 689-691 (1990). The portions of that opinion here relevant are as follows:

"[W]e think that the existence of a substantial relationship between a putative father and the child is an appropriate prerequisite for the commencement of an action such as this . . . . [I]n cases such as this, the Probate Court must hold a preliminary hearing to determine the extent of the relationship between the putative father and the child. This is, in its nature, a fact-based question. The court must look at the relationship as a whole and consider emotional bonds, economic support, custody of the child, the extent of personal association, the commitment of the putative father to attending to the child's needs, the consistency of the putative

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father's expressed interest, the child's name, the names listed on the birth certificate, and any other factors which bear on the nature of the alleged parent-child relationship . . . . If the plaintiff cannot come forward with clear and convincing evidence of [a substantial] relationship, he will not be able to proceed beyond the preliminary stages of the action . . . . If, on the other hand, the putative father can demonstrate [at the preliminary hearing] that he has enjoyed a substantial relationship with the child . . . [he] should be given the opportunity to prove paternity." Id. at 690-691. [Note 3]

Pursuant to the Supreme Judicial Court's mandate, the Probate Court judge heard evidence over portions of five days on the preliminary issue (as phrased by the judge) "whether [the plaintiff] sustained the burden of proving his contacts with the children were sufficient to allow him to proceed on the issues of paternity [, custody] and visitation." [Note 4] At the conclusion of the hearings, the judge made various findings regarding the relationships of the plaintiff and the defendant and of the plaintiff and the children, on the basis of which he concluded, in an "interlocutory order," that "the ties between [the plaintiff] and the children were close enough to give him standing to litigate the issues of paternity and visitation." [Note 5]

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The defendant mother appealed from the judge's order, arguing that the judge ignored or failed to apply the standards for the preliminary hearing set forth in C.C. v. A.B., supra; made findings not supported by the evidence; erroneously excluded expert evidence necessary to understand the parties' relationship and the plaintiff's conduct at the time of the children's conception; erroneously refused to allow the children (then seven and a half and six years old) to testify; and consistently manifested an an attitude toward her that reflected prejudicial gender bias and sexual stereotypes. We do not address any of these issues, [Note 6] however, because her appeal is a premature one from an interlocutory order and must be dismissed. [Note 7]

It is settled that, in the absence of certain special exceptions not here applicable, an appellate court will reject attempts to obtain piecemeal review of trial rulings that do not represent final dispositions on the merits. See Pollack v. Kelly, 372 Mass. 469, 470-471 (1977); National Assoc. of Govt. Employees, Inc. v. Central Bdcst. Corp., 379 Mass. 220, 222 n.2 (1979); LaLonde v. LaLonde, 28 Mass. App. Ct. 969 (1990).

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This case presents no sound reason to depart from established principle.

The Supreme Judicial Court's mandate in C.C. v. A.B., supra, that "a preliminary hearing" be held on the substantiality of the putative father's relationship with the child, arose out of and was intended to determine the threshold jurisdictional question of the putative father's standing to maintain a paternity action. [Note 8], [Note 9]) Nothing in C.C. v. A.B. suggests that the Supreme Judicial Court viewed the result of the preliminary hearing on the putative father's standing as a new exception to the final decision rule of appealability. [Note 10] The best interests of the child underlie a paternity proceeding, see id., 406 Mass. at 690, and should be the predominant factor in determining

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what rights, if any, the father should have. See Ginsberg, C.C. v. A.B. and Beyond, 35 Boston Bar. J. 11, 12 (1991). We fail to see how so critical a concern would be advanced by creating new opportunities for delay and emotion-driven contentiousness in a proceeding that has a just claim to the utmost expedition at all stages. Cf. Custody of a Minor, 389 Mass. 755, 764 n.2 (1983); Lassiter v. Department of Social Servs., 452 U.S. 18, 32 (1981).

The judge's order does not fall within any of the established, narrow exceptions to the general prohibition against fragmentary appeals from interlocutory action. It is not subject to the "present execution" doctrine, see Borman v. Borman, 378 Mass. at 780, for the reason, if no other, that "the doctrine applies only to orders on issues collateral to the controversy . . ." Id. at 782 n.12. See also Matter of a Grand Jury Subpoena, 411 Mass. 489, 499 n.12 (1992). The issue addressed at the preliminary hearing required by C.C. v. A.B., supra, far from being collateral, is inextricably intertwined with the ultimate issues to be decided in the underlying paternity action. "`[T]he existence or nonexistence of a substantial relationship between the putative father and child is relevant in evaluating both the rights of the parent and the best interests of the child.'" C.C. v. A.B., 406 Mass. at 690, quoting from R.R.K. v. S.G.P., 400 Mass. 12, 21 (1987) (Liacos, J., concurring).

Additionally, the incorrect interlocutory decision of an issue that is so connected to the ongoing merits of the case does the defendant no harm until entry of judgment, since merely causing a party to be subjected to the delay and expense inherent in further litigation does not make such an order "effectively unreviewable" under Borman v. Borman, 378 Mass. at 780. See Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 498-501 (1989). The fact that the defendant mother and the child may, by virtue of the judge's interlocutory order, have to undergo the delay and expense of full litigation on the merits of paternity, including the intrusions of paternity testing, create neither the sort of practically incorrectable present execution recognized by Borman and its

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progeny nor irremediable hardship of the kind that has sometimes been deemed to justify immediate appeal under the analogous "collateral order" doctrine in Federal courts. [Note 11] Moreover, we think that any attendant burden upon the mother and child of submitting to the normal incidents of pretrial and trial (which include discovery by physical examination under Mass.R.Civ.P. 35, 365 Mass. 793 -794 [1974]), does not provide a sound basis for application of an exception to the final order rule of appeal. Cf. 9 Moore's Federal Practice Section 110.10 (2d ed. 1992); 15A Wright, Miller & Cooper, Federal Practice & Procedure Section 3911.4 (2d ed. 1991).

General Laws c. 215, Section 9, which provides for an appeal not only from final decisions of a Probate Court but also from any probate judge's "order . . . decree or denial," does not afford relief to the defendant. It is settled that, under this provision, the appeal "should lie dormant . . . until the case has gone to judgment and an appeal from the judgment has been filed." Mancuso v. Mancuso, 10 Mass. App. Ct. 395, 400-401 (1980).

Finally, we note that the decision in M.J.C. v. D.J., 410 Mass. 389 (1991), does not avail the defendant. There, the Supreme Judicial Court allowed a putative father's application for direct appellate review from a probate judge's dismissal of his complaint, following a preliminary hearing pursuant to C.C. v. A.B., supra, in which the judge found that the plaintiff had not formed a substantial relationship with the child. The appeal in that case was proper, since the judge's order disposed of all outstanding claims.

The defendant's appeal is accordingly dismissed, and the case is remanded to the Probate Court for further proceedings on the plaintiff's complaint.

So ordered.