COMMONWEALTH vs. EDWARD J. LOBO (and three companion cases [Note 1]).

LIACOS, J. Seven questions arising from these cases are before us on a report, prior to trial, to the Appeals Court by a judge of the jury of six session of the Boston Municipal Court. Mass. R. Crim. P. 34, 378 Mass. 905 (1979). [Note 2] We transferred the report here on our own motion. We answer questions reported as to certain sections of our General

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Laws dealing with nonsupport and illegitimacy. G. L. c. 273, Sections 12 [Note 3] & 15. [Note 4]

The judge stated that in "the numerous cases pending in this court there is no uniformity in the manner in which sections 12 and 15 of ch. 273 are being interpreted." For this reason, and because of the uncertainty generally surrounding the meaning of the statutory pattern for the support of children of unwed parents, we included these cases in the package of opinions on the subject which we discuss today. [Note 5]

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All the cases reported here began as actions for nonsupport under Section 15. [Note 6] The facts of each case are as follows.

Commonwealth vs. Edward J. Lobo. [Note 7] Sometime after a complaint was issued charging the defendant with nonsupport under Section 15, the action was redesignated a proceeding under Section 12. [Note 8] The defendant appeared pro se, pleaded not guilty, but admitted to sufficient facts to convict, at a bench trial in the District Court. He was adjudicated the father of the child and the judge entered a pendente lite order of $75 a week, which included $5 a week for "arrears." The defendant's appeal was entered in the jury of six session of the Boston Municipal Court on April 10, 1981.

Commonwealth vs. Joseph Trusty. On January 28, 1981, the mother of a two and one-half year old child, in conjunction with an employee of the Department of Public Welfare, obtained a complaint under Section 15 against this defendant. Trusty was adjudicated the father of the child and was found "guilty" after a jury-waived hearing in the District Court. He was ordered to pay $30 a week, plus $10 a week for "arrears."

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His appeal, taken March 13, 1981, was also entered in the jury of six session of the Boston Municipal Court.

Commonwealth vs. David Murray. The defendant was charged under Section 15 with failure to support two illegitimate children, who were then three and one-half and five years of age. The defendant was defaulted, and an arrest warrant issued, after he failed to answer a summons for his appearance. He was arrested and arraigned on March 2, 1981. Prior to trial, the judge dismissed the allegations of nonsupport. [Note 9] Murray was adjudicated the father of the children and appealed. The appeal was entered in the jury of six session of the Boston Municipal Court.

The questions reported by the judge are as follows:

"(1) Does M.G.L. Ch. 273, sec. 12 state a civil cause of action despite language in that section regarding the imposition of a sentence after an adjudication of paternity?

"(2) Does a defendant charged under Ch. 273, sec. 12 have a right of appeal to the Jury of Six Session (M.G.L., Ch. 218, secs. 26A and 27A) or to the Superior Court Department as indicated in Ch. 273, sec. 12?

"(3) Does a defendant have a right to appeal a question of law under Ch. 273, sec. 12 from the primary court to the Appellate Division for resolution?

"(4) If Ch. 273, sec. 12 states a civil cause of action is the Commonwealth of Massachusetts a proper party to bring the complaint?

"(5) Can a trial justice of a primary court impose a pendente lite order under Ch. 273, sec. 12 after the defendant exercises his right to appeal the adjudication of paternity pending the outcome of the trial de novo?

"(6) Can a warrant be issued for the arrest of a defendant under Ch. 273, sec. 12 where he fails to appear after the issuance of a summons?

"(7) Does an order for the repayment to the Department of Public Welfare of money expended by it for support of

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the minor child following a final adjudication of paternity violate a defendant's due process rights under the Fifth and Fourteenth Amendments to the United States Constitution?"

Before proceeding to answer the questions reported, we detour for an overview of the statutory provisions for the support of children, born both in and out of wedlock, as they were in effect and material to the present cases. For the purposes of our discussion, the relevant portions of c. 273 are Sections 1 through 18.

In 1911 the Legislature passed the Uniform Desertion Act, which is now codified as G. L. c. 273, Sections 1-10. St. 1911, c. 456. Sections 1 through [Note 10] apply to the failure of a parent to support his or her legitimate children. We examine them first because, by the terms of G. L. c. 273, Section 16,10 as appearing in St. 1977, c. 848, Section 6, the penalties, orders, and payments provided under Sections 1 through 10 are applicable to proceedings under Sections 12 through 18, which deal with the obligations of parents of illegitimate children. We are guided in our inquiry by the necessity of harmonizing, as closely as possible, the procedures governing the provision of support for illegitimate children with the procedures established for obtaining support for legitimate children. Hadley v. Amherst, 372 Mass. 46, 51 (1977). See Mailhot v. Travelers Ins. Co., 375 Mass. 342, 345 (1978); G. L. c. 273, Section 10. We make such an effort despite the difficulties posed by the failure of the Legislature to clarify the statutory scheme when it amended G. L. c. 273 subsequent to our decision in Commonwealth v. MacKenzie, 368 Mass. 613 (1975). See St. 1977, c. 848.

G. L. c. 273, Sections 1-10 (legitimate children). Section 1 of c. 273 provides for punishment "by a fine of not more than

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five hundred dollars or by imprisonment for not more than two years, or both" of "[a]ny . . . parent . . . who unreasonably neglects or refuses to provide for the support and maintenance . . . of his minor child." G. L. c. 273, Section 1, as appearing in St. 1977, c. 848, Section 2. Under Section 3 the court is authorized to utilize the criminal probation collection system to collect fines imposed in proceedings under Section 1. A probation officer is empowered by Section 3 to make payments to whoever is "actually supporting" the child.

Section 4 [Note 11] makes provision for the fashioning of pendente lite orders, the violation of which is punishable "as for a contempt by the court before which the case is then pending." If such order is made by a District Court judge, the taking of an appeal does not vacate it. See Kelley, petitioner, 292 Mass. 198, 199-200 (1935) (violation of c. 273, Sections 1-4, is a crime, and punishment, by contempt, for failure to comply with pendente lite order is constitutional).

Under Section 5, as most recently amended by St. 1979, c. 621, Section 1, the court is empowered to order a defendant who pleads guilty or nolo contendere, or who is convicted under Section 1, "to pay certain sums periodically, for a term not exceeding six years," to a probation officer, for disbursement as in Section 3. Evidence of a voluntary support agreement, previously executed, is admissible and, if the court finds that the terms are reasonable, an order may include, where appropriate, any arrearages due under the agreement. Section 6 provides for release of a defendant from custody on

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recognizance or bail. Bail that is forfeited may be ordered paid to the probation department for disbursement under Section 5.

As to prosecutions begun under Section 1, Section 7 states in part that "[n]o other or greater evidence shall be required to prove the marriage of the husband and wife, or that the alleged father is the parent of the child, than may be required to prove the same facts in a civil action." G. L. c. 273, Section 7, as appearing in St. 1977, c. 848, Section 4.

G. L. c. 273, Sections 12-18 (illegitimate children). Turning our attention to Sections 12 through 18, we are faced immediately with the major difference between these sections and the preceding ones: the necessity of an adjudication of paternity under Section 12 or Section 15. [Note 12] Section 12A makes provision for the administration of blood grouping tests, on motion of the alleged father, in any proceeding to determine the question of paternity. Cf. Commonwealth v. Possehl, 355 Mass. 575 (1969) (State payment of blood grouping tests for indigent defendant in paternity adjudication). See also Little v. Streater, 452 U.S. 1 (1981). Such provisions are obviously necessary because, unlike the situation in the case of legitimate children, the paternity of the father is not presumptively established by the fact of marriage.

Under Section 13, after paternity has been determined, the court is empowered to continue the case until the child is born, notwithstanding other laws limiting adjournments or continuances. The court may order payment, to the mother or to a probation officer, of the expenses of pregnancy and confinement. Failure to comply with such orders is punishable, as contempt of court, by a term of imprisonment not to exceed two months. After the adjudication of paternity, Section 14 authorizes the court, "as justice and the welfare of the child require," to make orders, binding on all parties, for the care and custody of the child. [Note 13]

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Section 15, [Note 14] like Sections 1-4 as to a legitimate child, makes the neglect or refusal, by a parent of an illegitimate child, to contribute reasonably to his or her support and maintenance, a misdemeanor. In addition, this section makes the duty of support a continuing one during the minority of the child.

With this overview of the pertinent provisions of c. 273 in mind, we proceed to the questions reported.

Questions (1), (4), and (6). These questions arise, not surprisingly, with regard to a statutory scheme which has undergone several marked transformations in this century. At common law, there was no legal obligation of the father to support his illegitimate child. Davis v. Misiano, 373 Mass. 261, 263 (1977). Commonwealth v. Dornes, 239 Mass. 592, 593-594 (1921). But see Cahill v. State, 411 A.2d 317, 320 (Del. Super. Ct. 1980) (suggesting that the duty did exist at common law). Such a duty was nevertheless imposed by statute in this Commonwealth as early as 1692, see Province Laws 1692-1693, c. 18, Section 5, the purpose of a "bastardy" proceeding being "to redress . . . a civil injury . . . [and] to compel the putative father to aid the mother in the support and maintenance of the child." Hill v. Wells, 6 Pick. 104, 106-108 (1828). While such proceedings were recognized to contain elements of both civil and criminal actions, id. at 106-107, they were held to be, in substance, civil suits. See Corcoran v. Higgins, 194 Mass. 291, 292 (1907); Young v. Makepeace, 103 Mass. 50, 53, 56-57 (1869).

With the passage of St. 1913, c. 563, [Note 15] "the statutes of the Commonwealth [began to express] in a criminal context a father's responsibility for fathering an illegitimate child."

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Commonwealth v. MacKenzie, supra at 614. See Commonwealth v. Dornes, supra at 594; Commonwealth v. Mekelburg, 235 Mass. 383 (1920). These statutes, later codified as G. L. c. 273, Sections 11-19, made the begetting of an illegitimate child a misdemeanor under Section 11 and made "the non-support of such a child a distinct and continuing offence" and a misdemeanor under Section 15. Commonwealth v. Dornes, supra. See Commonwealth v. Mondano, 352 Mass. 260, 261 (1967); Vivori v. Fourth Dist. Court of Berkshire, 323 Mass. 336, 337-338 (1948); Commonwealth v. Micheli, 258 Mass. 89, 91 (1927).

Until 1977, Section 12 provided the mechanism for appeals from convictions for "begetting" under Section 11. With the repeal of Section 11, by St. 1977, c. 848, Section 7, proceedings to determine the father of the child of unwed parents for purposes of imposing support orders were henceforth governed by Section 12. Prior to the repeal of Section 11, however, we had occasion to examine the criminal sanctions provided in Section 11 for the act of begetting. We concluded that, while a criminal conviction and sentence could not constitutionally be imposed, a complaint under Section 11 "may be used to initiate a proceeding to adjudicate paternity . . . [and to provide] a basis for an order directing the father to contribute toward pregnancy expenses . . . and the support of the child." Commonwealth v. MacKenzie, supra at 618. Having "de-criminalized" Section 11, we nevertheless stated that, absent any action to the contrary by the Legislature, "[a]ny proceeding under Section 11 should be treated in all respects as a criminal proceeding . . . . For example, paternity must be established beyond a reasonable doubt and the alleged father may not be compelled to testify." Id. at 619 n.5. See Davis v. Misiano, supra at 263-264. Cf. Commonwealth v. Possehl, supra (State payment of blood grouping tests for indigent defendants).

With the exception of changes designed to enable c. 273 to withstand constitutional challenge, the Legislature has not yet acted to alter substantially the form of paternity proceedings. Thus, the "criminal attributes . . . retained in

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Section 11," Davis v. Misiano, supra at 264, after MacKenzie and prior to repeal, were simply engrafted to Section 12 by the Legislature in 1977. These procedural trappings of a criminal trial, in addition to the criminal law terminology retained in Section 12, [Note 16] lead us to characterize proceedings under G. L. c. 273, Section 12, as "quasi criminal" in form, but civil in nature.

We distinguish the nature of an action from its procedural format in order to make clear our use of the term "quasi criminal." Where the action is quasi criminal in form, but the purpose of the proceeding does not contemplate punishment, it is by nature civil, or remedial. Cf. Custody of a Minor, 375 Mass. 733, 746 (1978) (where care and custody proceedings under G. L. c. 119 no longer have as "governing principle" the "discipline" of the parent, proceedings are "civil and not criminal in nature"); Commonwealth v. Lamb, 365 Mass. 265, 269 (1974) (proceedings under G. L. c. 123A, for commitment of sexually dangerous persons, are "civil and nonpunitive in nature"). Given that the support and maintenance of children should be shared by those responsible for bringing them into the world, the primary object of a Section 12 proceeding is to identify the father in order to impose on him his obligation and to protect the public from the cost of maintenance. See Vivori v. Fourth Dist. Court of Berkshire, supra at 337-338. Compare Commonwealth

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v. Lanoue, 326 Mass. 559, 562 (1950). We have previously held that such a purpose in practice made the "decriminalized" version of c. 273, Section 11, remedial and in essence civil. Sullivan v. Commonwealth, 383 Mass. 410, 412 (1981). See Commonwealth v. Dias, post 455 (1982). Compare Custody of a Minor, supra. The same reasoning applies to c. 273, Section 12. We hold that a paternity proceeding conducted pursuant to G. L. c. 273, Section 12, is by nature a civil proceeding, the purpose of which is not to find and punish a criminal adversary of the State, but rather to determine whether the accused is the father of the illegitimate child, and, if so, what shall be the reasonable support obligation imposed on him.

The Legislature has chosen, in enacting G. L. c. 273, to utilize the machinery of the criminal justice system for its enforcement. Compare Little v. Streater, 452 U.S. 1, 11-12 (1981). Much, though not all, of the panoply of criminal procedural protections is extended to the putative father. [Note 17] These procedural trappings of a criminal trial are not, as we have said above, sufficient to make Section 12 proceedings strictly criminal. [Note 18] Thus, we conclude the answer to question (1)

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is that, because a "conviction" under it is not followed by a fine or by imprisonment, but instead by a support order, Section 12 sounds civilly though proceedings under it are quasi criminal in form. The answer to question (1) is "Yes."

The issue raised by question (4) is whether, if G. L. c. 273, Section 12, "states a civil cause of action. . . the Commonwealth of Massachusetts [is] a proper party to bring the complaint." Having concluded that Section 12 is, in nature, a civil proceeding, we answer question (4) "Yes," for the following reasons. At the outset, it is clear that the Commonwealth properly is a party to a large number of actions civil in nature. See, e.g., G. L. c. 258; G. L. c. 119; G. L. c. 123A. In regard to an analogous child support proceeding, we have noted that the Uniform Reciprocal Enforcement of Support Act, G. L. c. 273A, has as its purpose "to provide an effective procedure to compel performance by one under a duty to support dependents in another State." M________ v. W________, 352 Mass. 704, 706-707 (1967), quoting from Phillips v. Phillips, 336 Mass. 561, 562-563 (1958). Under G. L. c. 273A, Section 5, the Commonwealth has the right to commence support proceedings, in the name of the person entitled to support. Further, under G. L. c. 18, Section 21, the Department of Public Welfare is subrogated to the rights of any welfare recipient and may commence civil or criminal proceedings in its own name, or in the name of the recipient, regarding support. Similar provisions are found in G. L. c. 118E, Section 21E (medical care and assistance payments), and G. L. c. 118, Section 3 (aid to dependent children). Under G. L. c. 273, Sections 12-18, the Legislature has enacted a statutory scheme not only to protect the interests of illegitimate children, but also those of the State. Historically, this legislation is "connected with the system of poor relief," and a main object of such legislation "has been to provide security

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for the [State] liable to support the . . . child." Commonwealth v. Dornes, 239 Mass. at 593-594.

In addition, "[t]he statutory purposes advanced by the Commonwealth [to] support a paternity and child support statute . . . used to establish paternity and oblige the father to contribute toward pregnancy and childbirth expenses . . . [permit] the Legislature to focus statutory attention . . . on the fathers of illegitimate children." Commonwealth v. MacKenzie, 368 Mass. at 616-617. The Commonwealth is a proper party to the complaint.

For the same reasons, and in answer to question (6), the furnishing by the State of its name and its criminal justice machinery to compel performance of the duty to support dependent children necessarily comprehends the issuance of arrest warrants after the failure by a named party to comply with a summons. Cf. G. L. c. 276, Sections 25, 26.

Question (5). Perhaps the most important practical issue presented in this report concerns the authority of a judge of a primary court to impose a pendente lite order under Section 12 when the defendant elects to exercise his right to a trial de novo on the issue of paternity. Defendant Lobo argues that the duty to support an illegitimate child does not arise until a final adjudication of paternity, since the duty is statutory and did not exist at common law. He argues that an appeal de novo has the effect of voiding the adjudication of the primary court, and hence an order based on that adjudication cannot be immediately enforceable. See Mann v. Commonwealth, 359 Mass. 661, 666 (1971). But see Rubera v. Commonwealth, 371 Mass. 177, 183 (1976) (fact that judge in bench trial found defendant guilty not a nullity for all purposes because of appeal).

The answer to the defendant's argument is found in the statute itself. The Legislature has made provision for temporary orders for the support of the child. General Laws c. 273, Section 4, see note 11, supra, empowers a District Court judge to "enter such temporary order as may seem just . . . pendente lite" for the support of the child at any time after arraignment and before the entry of an appeal. The next to

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the last sentence in Section 4 specifically states that an appeal shall not vacate such order. By the terms of Section 16, see note 10, supra, a judge in the primary court is empowered to enter pendente lite orders after an adjudication of paternity under Section 12. [Note 19]

The obligation of paying temporary support pending appeal of an adjudication of paternity works an obvious hardship on a defendant later determined not to be responsible for fathering the child. His chances of later recovering his money may be slim, [Note 20] but we see in the statutory pattern a recognition by the Legislature that the interest primarily at stake in the paternity action is that of the child in need of support. Coupled with this is the fact that a Section 12 proceeding is not criminal in nature. Compare G. L. c. 119, Section 39I (filing of appeal from care and protection order does not stay the order appealed from); G. L. c. 120, Section 20 (c) (during appeal of extension of commitment of juvenile to Department of Youth Services, juvenile remains under control of board). Department of Youth Servs. v. A Juvenile, 384 Mass. 784 (1981).

Question (2). At the time the appeals in this case were taken, Section 12 expressly provided that "[a]t the sitting when such adjudication is made by a district court, if made after a plea of not guilty, the alleged father may appeal therefrom to the superior court as in other criminal cases." [Note 21] See G. L. c. 212, Section 6, prior to St. 1978, c. 478, Section 117. The defendants have challenged the jurisdiction of the judge in the

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jury of six session to hear these cases. They request a transfer to the Superior Court. We are of the opinion that appellate jurisdiction is properly in the District Court jury of six session. The Court Reorganization Act (Act), St. 1978, c. 478, amended G. L. c. 218, Section 27A, to create the jury of six session "for the purpose of hearing appeals by defendants" found guilty of criminal offenses in the District Courts. St. 1978, c. 478, Section 189. By Section 187 of the Act, G. L. c. 218, Section 26, was amended to give the District Courts original jurisdiction over specifically enumerated offenses, including "all misdemeanors, except libels." Adjudications of paternity under G. L. c. 273, Section 12, are not, however, included.

General Laws c. 278, Section 18, was also amended, by Section 302 of the Act, to read in pertinent part that, "[n]otwithstanding any other provision of law, a defendant after a finding of guilty, jury waived, in a district court . . . may appeal therefrom and shall thereafter be entitled to a trial de novo in a jury-of-six session" (emphasis supplied).

We think this catchall provision applies to adjudications of paternity. Although paternity is not a "crime" in the sense of the first sentence of Section 18, sufficient criminal "trappings" have been retained by the Legislature in Section 12 to indicate that it intended that these de novo appeals also go to the jury of six session. This conclusion is consistent with the action of the Legislature in later amending Section 12 to allow for appeals to a jury of six. See note 21, supra. But see Commonwealth v. Mack, 10 Mass. App. Ct. 816 (1980) (appeal taken prior to the effective date of the Act). Such a "gap" as the temporary exclusion of Section 12 adjudications from coverage by c. 218, Section 26, is "virtually inevitable in any piece of legislation as complex as the court reorganization plan." Commonwealth v. Germano, 379 Mass. 268, 273 (1979).

Question (3). Although we have held that proceedings under Section 12 are in essence civil, though in form quasi criminal, the appellate division is not the proper forum in which to bring an appeal from an adjudication. G. L. c. 231, Section 108. Compare M________ v. W________, 352 Mass. at

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710 ("[t]he principal difference between a civil proceeding under c. 273A and a quasi criminal nonsupport prosecution [under G. L. c. 273, Section 15] is that appellate review under c. 273A will be by the Appellate Division . . . rather than [as under c. 273] by . . . a jury trial de novo"). We are not inclined to hold otherwise in the absence of a clear statement by the Legislature. Furthermore, we note that recent amendments to Section 12 disclose a legislative intention that questions of law continue to be decided as in other criminal cases. See St. 1981, c. 92, and St. 1981, c. 325.

Question (7). The last question reported asks whether, after a final adjudication of paternity, a judge may enter an order for the repayment to the Department of Public Welfare (department) of money expended by it for the support of a minor child. Since proceedings in these cases have been brought pursuant either to Section 12 or to Section 15, we answer the question with regard to both provisions of c. 273.

First, we recognize the power given, by statute, to the department to "take all lawful means which shall include, in appropriate cases, the institution of criminal proceedings, to compel all persons bound to support such . . . child or children to support them." G. L. c. 118, Section 3, as amended through St. 1979, c. 393, Section 69. See G. L. c. 18, Section 21; 106 Code Mass. Regs. 305.033, 305.038, 305.090 & 305.100 (1979). Compare Brady v. Brady, 380 Mass. 480, 485 (1980). We conclude, in light of the statutory authorization, that the department is entitled to seek an order for repayment of money expended by it for the support of a child, as "accrued maintenance." See Little v. Streater, 452 U.S. at 4. We examine in turn both Section 12 and Section 15, in order to determine whether the entry of orders with retroactive effect is permissible after proceedings under each of these sections.

Proceedings under Section 15 are discussed more fully in Commonwealth v. Chase, post 461 (1982). By the terms of our opinion in Chase, no obstacle, constitutional or otherwise, is presented to a retroactive payment order, made after a final conviction of nonsupport and limited to a period of six years next preceding the commencement of the action. By definition,

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a conviction for failure to support must encompass the possibility of retroactive orders. Id. at 470-471.

The same does not hold, however, for such orders made after an adjudication of paternity under Section 12. As we have said earlier, see note 13, supra, we discern a legislative expectation that actions involving Sections 12-14 would be brought from a point a few months before, to one shortly after, the birth of the child. Under these sections, the expenses of the pregnancy and confinement of the mother are properly the subject of an order. Failure to comply with the order would be the basis for an action for nonsupport, or a contempt, or both. But to go further and to allow the imposition of retroactive support orders under Section 12, is to adopt an interpretation of that section not consistent with the legislative scheme. A retroactive support order under Section 12 would have to be based on a finding of a failure to support. Such a finding is reserved to proceedings under Section 15. See Commonwealth v. Chase, supra.

Thus, since Commonwealth vs. Edward J. Lobo was transformed from a Section 15 to a Section 12 proceeding, that portion of the amount in the pendente lite order described as "arrears" was improper. In Commonwealth vs. Joseph Trusty, although the proceedings were held under Section 15, the portion of the pendente lite order ascribed to "arrears" was also improper because it was made before a final conviction of non-support. See Commonwealth v. Chase, supra. This does not affect the remaining portion of these orders.

We summarize our answers to the questions reported:

Question (1): Yes.

Question (2): To the Jury of Six Session of the District Court Department.

Question (3): No.

Question (4): Yes.

Question (5): Yes.

Question (6): Yes.

Question (7): Orders for reimbursement of any kind may be made only after an adjudication that has become final under Section 12 or after final conviction under Section 15; but reimbursement

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payments of "arrearages" claimed to have been incurred prior to an adjudication under Section 12 are impermissible.

The cases are remanded to the jury of six session of the Boston Municipal Court for proceedings in accordance with this opinion.

So ordered.