COMMONWEALTH vs. FRANCIS J. GRUTTNER (and a companion case [Note 1]).

LIACOS, J. These cases come before us, via different avenues, for resolution of two related issues arising in the context of criminal actions for the alleged failure of putative fathers to support their children. G. L. c. 273, Section 15, as amended through St. 1979, c. 621, Section 2. [Note 2] We are asked to determine first what, if any, statute of limitations applies to adjudications of paternity made during Section 15 proceedings. Also before us is the question of the appropriate limitation period for the bringing of the nonsupport action itself.

We conclude that no time bar blocks the bringing of an action to adjudicate the paternity of an illegitimate child. A criminal nonsupport action, however, must be brought within six years of the last alleged refusal or neglect by a defendant to provide support. We summarize the facts of the two cases.

Francis J. Gruttner was named as the defendant in a complaint brought under G. L. c. 273, Section 15, on December 7, 1979. The complaint alleged that he was the father of a child then almost four years of age, and charged him with the failure to provide reasonable support and maintenance of the child since her birth. At a bench trial in a District Court he was determined to be the father of the child

Page 476

and convicted of nonsupport. He was ordered to pay $30 a week pendente lite, or to participate in a work program eight hours a week.

The defendant entered an appeal for a trial de novo in the jury of six session of the District Court and there filed a motion to dismiss the complaint, stating as grounds that the determination of paternity in a Section 15 proceeding was governed by a three-year statute of limitations, which, he claimed, had run. The defendant's motion was first denied, but was allowed on reconsideration. The Commonwealth appealed the dismissal to the Appeals Court. Mass. R. Crim. P. 15 (a) (1), 378 Mass. 882 (1979). On August 5, 1981, the case was consolidated in the Appeals Court with Commonwealth vs. Carmen Mayo and later transferred to this court on an application for direct appellate review.

Carmen Mayo was charged under Section 15 on a complaint obtained on November 12, 1980, by an employee of the Department of Public Welfare. The complaint alleged that the defendant "during the six years next before the making of this complaint . . . did unreasonably neglect to provide for the support of his illegitimate minor children" who were then nine and seven years of age.

After a bench trial the defendant was adjudicated the father of the children and convicted of nonsupport. An order was entered for the payment of $25 a week, an undetermined amount of which was to be applied to an "arrearage" of $450.

The defendant Mayo entered an appeal to the jury of six session, where he filed a motion to dismiss on the ground that the six-year criminal statute of limitations, G. L. c. 277, Section 63, barred the prosecution. The motion was denied, but the case was made the subject of a report by a judge of the Boston Municipal Court Department as one of four cases under the name Commonwealth vs. Edward J. Lobo. Mass. R. Crim. P. 34, 378 Mass. 905 (1979). See Commonwealth v. Lobo, ante 436 (1982). Mayo and the Commonwealth filed a joint motion in the Appeals Court to consolidate the case with the appeal of Francis J. Gruttner.

Page 477

All parties apparently concede that G. L. c. 273 itself sets out no limitation period for the bringing of actions. The Commonwealth argues that because Section 15 provides that the duty to support one's illegitimate children "shall continue during [their] minority," and further provides that if there has been no prior, final adjudication of paternity, "the question of paternity shall be determined in proceedings hereunder," the Legislature must have intended that paternity may be adjudicated at any time during the child's minority. In support of this argument, the Commonwealth asserts that to apply any statute of limitations to paternity proceedings would be unconstitutional in that such a view would work an invidious discrimination against illegitimate children as compared to legitimate children.

Finally, the Commonwealth claims that, assuming arguendo, a legislative intent, and one that is constitutional as well, to apply a limitation period to paternity proceedings, the controlling period is the six-year limit applied to criminal cases under G. L. c. 277, Section 63, and not the three-year period under G. L. c. 260, Section 2A.

On the rare occasions when the question of a limit in time to the adjudication of paternity has been before this court, we have consistently held that there is no statute of limitations which applies. Prior to 1913, statutes for the maintenance of the children of unwed parents were in their nature remedial, and proceedings under them "were essentially civil and designed, not to inflict punishment on the father, but to compel him `to assist the mother in the maintenance of the child, and to secure the municipality or State against any loss or expense for its maintenance.'" Commonwealth v. Lanoue, 326 Mass. 559, 562 (1950), quoting from Davis v. Carpenter, 172 Mass. 167, 173 (1898). See McFadden v. Frye, 13 Allen 472, 473 (1866). In a case brought under one of these earlier statutes for maintenance with respect to children nine and five years of age at the time of the issuance of the complaint, the putative father raised the bar of the statute of limitations. This court held that "[n]o statute of limitations bars a mother's right to complain against the

Page 478

father of her bastard child." Wheelwright v. Greer, 10 Allen 389, 391 (1865). Contrast Commonwealth v. Cole, 5 Mass. 517 (1809), construing St. 1785, c. 66, which had a time limitation explicitly included.

By 1913, the problem of defaulting fathers caused the Legislature to express "in a criminal context a father's responsibility for fathering an illegitimate child. St. 1913, c. 563." Commonwealth v. MacKenzie, 368 Mass. 613, 614 (1975). See Commonwealth v. Dornes, 239 Mass. 592, 594 (1921). Under G. L. c. 273, Section 11, the begetting of an illegitimate child was a misdemeanor (see Commonwealth v. Dornes, supra) and the failure to support the child was a distinct and continuing offense under Section 15. Id.

Until its repeal in 1977, then, G. L. c. 273, Section 11, made "begetting" a criminal offense. See St. 1977, c. 848, Section 7. In Commonwealth v. Gross, 324 Mass. 123 (1949), an alleged father was charged under Section 15 with nonsupport, for the five preceding years, of a child born almost seven years earlier. The defendant, in a special plea, claimed "that there has been no final adjudication of the paternity of said child, and that no indictment or complaint charging the defendant with getting the complainant with said child has been found and filed within six years from the date of the commission of said crime." Id. at 124. His motion for a directed verdict was denied. On appeal this court held that "[t]here was no necessity of prior adjudication of paternity, as Section 15 provides that where there is no such adjudication `the question of paternity shall be determined in proceedings hereunder.'" Id. We concluded that "[n]o question of statutory limitation arises." Id.

Finally, in Commonwealth v. Mondano, 352 Mass. 260 (1967), we considered a complaint under Section 15 filed almost six years after the birth of the child. To this complaint the defendant filed a plea in bar setting out the prior dismissal of a Section 11 complaint, for "begetting" the same child. The prior dismissal was on the ground that the six-year statute of limitations, running from the date of conception, had run. The defendant contended that the dismissal of the Section 11

Page 479

complaint was, in effect, an adjudication that he was not the father of the child. We refused to bar the nonsupport action and held that "[t]he dismissal of the Section 11 complaint adjudged only that the defendant could not be found guilty of begetting the child for the reason that the prosecution was barred by the statute. It was an adjudication on the merits only in the sense that it barred any subsequent prosecution for the same offence." (Emphasis supplied.) Id. at 262. The court held, however, that a complaint under Section 15 was not similarly barred.

Recently, the Legislature amended the statute affecting the right of illegitimate children to inherit from their fathers. General Laws c. 190, Section 7, as appearing in St. 1980, c. 396, recognizes several methods by which an illegitimate person may be adjudged the child of a decedent. One method allows such a person to "establish paternity if, within the period [established for bringing actions against an estate], such person . . . commences, in a court of competent jurisdiction, an action in which the executor or administrator is a named party and in which such paternity is ultimately proved." See Lowell v. Kowalski, 380 Mass. 663, 670 (1980). There is thus no time bar running from the date of the child's birth with respect to such rights of inheritance.

We conclude the case law and the analogous statutory provisions demonstrate that no statute of limitations should apply to an action for the adjudication of paternity.

The defendant Gruttner argues that due process considerations require that some time limit be placed on the exposure of putative fathers to paternity claims. We have considered this argument in reaching our conclusion, being aware that the creation of a familial bond in this case, i.e., the judicial determination of the existence of a parent-child relationship, requires procedural fairness to both the child and the putative father. See Little v. Streater, 452 U.S. 1, 13 (1981). The interest to be given paramount weight on a scale of values in this context should be that of the child. Cf. id. at 13 n.9; Wyman v. James, 400 U.S. 309, 318 (1971).

Page 480

For a collection of cases in other jurisdictions dealing with this problem see 59 A.L.R.3d 685 (1974).

We are extremely reluctant, in the absence of a clear legislative mandate to the contrary, to visit on such a person a time bar which results in loss of support, largely due to inaction or neglect by others. See Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175-176 (1972). [Note 3] Without detracting in any way from the weight to be afforded problems of proof of paternity, such problems cannot "be made into an impenetrable barrier that works to shield otherwise invidious discrimination." Gomez v. Perez, 409 U.S. 535, 538 (1973).

The fact remains that the passage of time bears no logical relation to the question whether a man is actually the father of a child. In the case of a man who claims he is not the father of the child in question, ample protection is provided him by the requirements, in a proceeding under G. L. c. 273, that paternity be established beyond a reasonable doubt and that he be given a right to appeal the adjudication to a jury of six. We think that a putative father's rights are properly safeguarded by a focus on strict evidentiary standards and reliable methods of proof, such as blood grouping tests, rather than on possibly arbitrary time limits.

We turn finally to the question of the limitation period applicable to the commencement of a nonsupport action. By its terms, Section 15 imposes a continuing duty [Note 4] on a parent to support his or her illegitimate children during their minority. We have in turn described nonsupport as "a distinct and continuing offence." Commonwealth v. MacKenzie, supra

Page 481

at 615, quoting from Commonwealth v. Dornes, 239 Mass. at 594. Commonwealth v. Lanoue, supra. Commonwealth v. Gross, supra. Thus, since the criminal statute of limitations runs from the last act of the offense, in this case being the last instance in which support was due but not forthcoming, an action under G. L. c. 273, Section 15, must be brought within six years of such failure to support. In effect, if the nonsupport has been continuous, this means that the action may be brought any time during the child's minority, and during the period six years thereafter. The practical consequence of this is that, for an action brought after minority, the recovery for past support will be limited to expenditures for support made in the period between six years before the complaint and the date terminating the defendant's support obligation. See Commonwealth v. Chase, supra at 472 n.8.

As to the defendant Gruttner, the order dismissing the complaint is reversed. As to the defendant Mayo, the denial of the motion to dismiss is affirmed. The cases are to be remanded for trial de novo in the jury of six session of the District Court in accordance with this opinion.

So ordered.