KEVIN ROYCE GRAY vs. COMMISSIONER OF REVENUE & ANOTHER. [Note 1]

ABRAMS, J. At issue is whether the Department of Revenue (department) may seize property of a child support obligor in satisfaction of child support arrearages, where the obligor is repaying the arrearages at a rate ordered by a Probate Court judge. The plaintiff, Kevin Royce Gray, asserts that the department's seizure of his bank and credit union accounts constitutes contempt of court and violates his rights to due process. Gray also argues that the seizure and the statute pursuant to which the seizure took place violate art. 30 of the Massachusetts Declaration of Rights, the separation of powers provision of the Massachusetts Constitution. Gray asked the court to hold the department in contempt, order return of his assets, and grant declaratory relief. The case was reported to the Appeals Court and then transferred here on our motion. We rule that the report is not properly before us, and therefore discharge it.

Procedure. The judge's order is entitled "Report to Appeals Court Pursuant to M.R.A.P. 5." Rule 5 of the Massachusetts Rules of Appellate Procedure, 378 Mass. 930 (1979), does not, however, permit a judge to report a case. It merely provides that a report, properly made, is procedurally equivalent to a notice of appeal. The authority of a Probate Court judge to report a case derives from G. L. c. 215, s. 13 (1994 ed.), and Mass. R. Dom. Rel. P. 64 (1996). See Adoption of Thomas, 408 Mass. 446, 448-449 (1990). [Note 2] Under those provisions, a Probate Court judge may report "either the entire case . . . or questions raised by interlocutory rulings that 'so affect[ ] the merits of the controversy that the matter

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ought to be determined by the appeals court.'" Department of Revenue v. B.P., 412 Mass. 1015, 1015-1016 (1992), quoting Mass. R. Civ. P. 64, 365 Mass. 831 (1974). Absent an interlocutory ruling, the report must be of the entire case because neither G. L. c. 215, s. 13, nor Mass. R. Dom. Rel. P. 64 authorizes a report of part of a case or a specific question of law. See Dorfman v. Allen, 386 Mass. 136, 138 (1982), quoting Curran, petitioner, 314 Mass. 91, 94 (1943); Ellis v. Ellis, 413 Mass. 1003, 1004 (1992). Here there was no interlocutory order, and the judge purported to report only one count of a two-count complaint. Therefore, the report must be discharged. See Department of Revenue v. B.P., supra at 1017; Adoption of Thomas, supra at 448-449; Dorfman, supra.

The parties have briefed the issues, however, and "[w]e believe the public interest would be best served by our answering the questions posed" Adoption of Thomas, supra at 449. Accord Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943) ("in view of the public interest involved and the uncertainty and confusion now existing . . . we ought . . . to express . . . our opinion"). We proceed to do so.

Facts. The facts set forth in the parties' statement of agreed facts are as follows. Georgette Vogel gave birth to her child, Jerry, on November 10, 1979. She applied to the department for child support enforcement services on June 4, 1993. On September 30, 1993, the department filed a complaint seeking to establish Gray's paternity. On December 23, 1993, a Probate Court judge in Hampden County concluded that Gray was Jerry's father and that he owed $17,160 in past due child support. Pursuant to G. L. c. 209C, s. 9 (1992 ed.), the judge ordered Gray to pay $110 a week in current child support and an additional $25 a week to be applied toward the arrearage, all by wage assignment.

In a letter dated March 5, 1994, the department notified Gray that it would levy on his property if the arrearage was not paid in full within thirty days. Gray requested an administrative review. He did not dispute the amount owed, but stated that he was repaying it in the manner ordered by the Probate Court judge.

The department did not believe Gray's compliance with the court order limited its authority under G. L. c. 119A to demand and enforce immediate payment in full. Accordingly, on or about April 22, 1994, the department seized $100 from

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Gray's account at BayBank and $5,187 from Gray's Individual Retirement Account (IRA) at the Pioneer Valley Postal Federal Credit Union.

Amendment to G. L. c. 119A. General Laws C. 119A provides for the enforcement of child support obligations. Chapter 119A was amended in 1994, and the parties dispute which version of c. 119A is applicable. [Note 3]

On February 5 and March 5, 1994, the department sent to Gray notices of assessment and levy. Amendments to c. 119A, contained in St. 1993, c. 460, became effective on April 13, 1994. [Note 4] The seizure of Gray's accounts occurred on April 22, 1994. Gray contends that because the notices were sent prior to the amendments' effective date, the unamended version of c. 119A applies. The department contends that because the

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amendments were in effect when the seizure took place, the amended version applies. We agree with the department.

A civil statute which extinguishes substantive rights "will not be applied retroactively to pending claims 'unless the Legislature has stated the contrary explicitly.'" Shelby Mut. Ins. Co. v. Commonwealth, 420 Mass. 251, 257 (1995), quoting Austin v. Boston Univ. Hosp., 372 Mass. 654, 657 (1977). "Where, however, [a civil] statute regulates practice, procedure or evidence, as distinguished from substantive rights, it will commonly be applied to actions already pending." Goodwin Bros. Leasing v. Nousis, 373 Mass. 169, 173 (1977) (statute which required filing of certificate as condition precedent to civil action is procedural and may be applied retroactively). See generally 1A Singer, Sutherland Statutory Construction s. 22.36 (5th ed. 1993) This rule applies to statutory amendments. See Boston v. Keene Corp., 406 Mass. 301, 312-313 (1989) (regarding asbestos liability tort, limitation period is procedural rather than substantive and may be retroactively expanded); LaGrant v. Boston Hous. Auth., 403 Mass. 328, 329, 331 (1988) (repeal of presentment requirement of Massachusetts Tort Claims Act applied retroactively to validate claim); Wetherell v. Boston Mut. Life Ins. Co., 18 Mass. App. Ct. 614, 617-618 (1984) (statutory amendment granting subject matter jurisdiction in civil actions against Commonwealth held applicable to action filed nine days before amendment's effective date).

Gray received notice prior to the effective date of the amendments to c. 119A, but the actual seizure of his assets occurred after the effective date. Because notice is procedural, see, e.g., Good v. Commissioner of Correction, 417 Mass. 329, 332 n.2 (1994); Massachusetts Auto Body Ass'n v. Commissioner of Ins., 409 Mass. 770, 781 (1991), the notice provisions of amended c. 119A may be applied retroactively. Therefore, the amended statute governs this action.

Separation of powers. Article 30 provides: "In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of

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men." [Note 5] While we have "insisted on scrupulous observance of [art. 30's] limitations," New Bedford Standard-Times Publishing Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 410 (1979), we have also recognized that some overlap is inevitable, [Note 6] and "absolute division of the three general types of functions is neither possible nor always desirable." Commonwealth v. Tate, 34 Mass. App. Ct. 446, 448 (1993), quoting Opinion of the Justices, 365 Mass. 639, 641 (1974). [Note 7] Our focus, therefore, is on "the essence of what cannot be tolerated under art. 30 . . . interference by one department with the functions of another." Chief Admin. Justice of the Trial Court v. Labor Relations Comm'n, 404 Mass. 53, 56 (1989), quoting Opinion of the Justices, supra. Accord Babets v. Secretary of Human Servs., 403 Mass. 230, 233 (1988); New Bedford Standard-Times Publishing Co., supra. The executive and legislative departments impermissibly interfere with judicial functions when they purport to restrict or abolish a court's inherent powers, Brach v. Chief Justice of the Dist. Court Dep't, 386 Mass. 528, 535 (1982); Commonwealth v. Jackson, 369 Mass. 904, 921-922 (1976), or when they purport to reverse, modify, or contravene a court order. See Department of Revenue v. Jarvenpaa, 404 Mass. 177, 183 (1989); Hoffer v. Commissioner of Correction, 397 Mass. 152, 156 (1986); Russell Box Co. v. Commissioner of Corps. & Taxation, 325 Mass. 536,

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539 (1950). Gray alleges both types of interference. We address each in turn.

Legislative restriction of court's inherent powers. General Laws c. 209C provides for the rights and protections of children born out of wedlock. G. L. c. 209C, s. 1 (1994 ed.). Amendments to chapter 209C became effective on April 13, 1994. St. 1995, c. 460. Former c. 209C, s. 9 (a), as amended through St. 1989, c. 341, s. 94, provided, in pertinent part: "the [judge] may order one party to pay the other party . . . a sum for past [child] support." Section 19 of c. 209C empowered the judge to order a levy on an obligor's property in satisfaction of such debts.

Under c. 209C, as amended, however, a Probate Court judge does not have the power to order levy in satisfaction of past child support [Note 8] (the judge may, on the department's complaint pursuant to G. L. c. 119A, s. 6 [b] 9, enforce the lien created by G. L. c. 119A, s. 6 [b] 1). Gray argues that the power to levy on an obligor's property to recover unpaid child support is among the inherent powers of the Probate Court which may not be legislatively abridged. We do not agree.

"Inherent powers of the courts are those 'whose exercise is essential to the function of the judicial department, to the maintenance of its authority, or to its capacity to decide cases.'. . . Although the courts' inherent powers may be recognized by statute, they exist without statutory authorization and cannot be restricted or abolished by the Legislature without violating art. 30 ...." Brach, supra at 535, quoting Sheriff of Middlesex County v. Commissioner of Correction, 383 Mass. 631, 636 (1981). Accord Commonwealth v. O'Neil, 418 Mass. 760, 763-764 (1994); Jackson, supra at 921-922.

"Among those powers that have been held to be inherent is the power to grant a change of venue in order to secure an impartial trial . . . to use contempt proceedings to ensure the orderly administration of justice . . . to order the county to pay for adequate resources to ensure the proper operation of

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the courts . . . to make rules governing the internal organization of the courts and to control the practice of law," Jackson, supra at 921, to appoint a guardian ad litem, Adoption of Thomas, 408 Mass. 446, 452 (1990), to impound files, George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 277 (1985), and to revoke a judgment obtained by fraud on the court. Jose v. Lyman, 316 Mass. 271, 280 (1944); Winthrop Corp. v. Lowenthal, 29 Mass. App. 180, 184 (1990). See Rockdale Management Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994). Such powers are inseparable from a judge's power to hear and decide cases. See Michaelson v. United States ex rel. Chicago, St. Paul, Minn. & Omaha Ry., 266 U.S. 42, 65-66 (1924). The Legislature may modify, enlarge, diminish, or abolish the jurisdiction of all courts subordinate to the Supreme Judicial Court but, having established statutory courts "the Legislature has no authority to abrogate such [inherent] power[s] or to render [them] inoperative." Opinion of the Justices, 314 Mass. 767, 782 (1943). See also Parents of Two Minors v. Bristol Div. of the Juvenile Court Dep't, 397 Mass. 846, 851 (1986); New Bedford Standard-Times Publishing Co., supra at 417 (Abrams, J., concurring).

The circumstances here do not support the contention that the power to order levy under c. 209C is essential to the Probate Court's functioning, authority, or capacity to decide cases. [Note 9] The functioning and capacity of the Probate Court is not affected in any way by deprivation of that power, and the court's authority is enforced by the department's obligation [Note 10] and power to collect the arrearages established by the Probate Court. If the department is remiss, it is subject to the court's

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order to fulfil its statutory duty. See Care & Protection of Isaac, 419 Mass. 602, 606 (1995) (court has power to order agency to do what it has legal obligation to do); Charrier v. Charrier, 416 Mass. 105, 110 (1993). Moreover, judicial review of the department's actions is available under G. L. c. 119A, s. 6 (b) (11). We conclude that the Legislature did not violate art. 30 by restricting the Probate Court's power to levy under G. L. c. 209C.

Executive modification of court orders. At the conclusion of the paternity action the Probate Court judge ordered Gray to pay $25 a week toward child support arrearages. The department, subsequently, seized funds from Gray's bank and IRA accounts in satisfaction of the same arrearages. Gray contends that the department's action was an unconstitutional executive modification of a judicial order. We do not agree.

General Laws c. 209C, s. 18, and c. 119A, s. 12 (a) (1994 ed.), concurrently provide, in pertinent part: "Each judgment or order of support which is issued . . . pursuant to [c. 209C] shall conform to and shall be enforced in accordance with the provisions of [c. 119A, s. 12]." General Laws c. 119A, s. 12 (j), in turn, provides: "[O]bligations may also be enforced in accordance with the provisions of [c. 119A, s. 6]." These provisions were not altered by the 1994 amendments. They were in effect in December, 1993, when the judge's order was entered.

The department's interpretation of s. 6 was at that time well established. Ten months earlier, in February, 1993, the department had published its interpretation of s. 6. Child Support Enforcement, CSE Directive C-93-1. According to example 1 of that publication, s. 6 (b) authorized the department to levy against an obligor's bank accounts despite the obligor's compliance with a court order requiring payment of arrearages at $25 a week. "[E]xisting pertinent statutes are read into and made a part of' any court order. Sheehan, petitioner, 254 Mass. 342, 345 (1926). [Note 11] In the absence of anything in the order indicating that the judge did not intend

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it to be subject to s. 6 (b) and the department's interpretation thereof, [Note 12] the statute and the department's interpretation are presumed incorporated "as much as if th[ose] provisions . . . had been written into the decree." [Note 13] Russell Box Co., supra at 540. It follows that the department's seizure of Gray's assets "was not in conflict with the decree but was entirely consistent with it." Id. See Ierardi, petitioner, 366 Mass. 640, 650 (1975) (actions taken by executive department pursuant to statute are "read into the court's sentence . . . and do not infringe on the powers of the judiciary").

Due process. Gray's argument that he was denied due process under art. 10 of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the United States Constitution requires only brief discussion. [Note 14] In considering whether a challenged action satisfies due process requirements, courts must balance the private interest affected, the risk of erroneous deprivation, the probable value of additional or substitute safeguards, and the governmental interests involved. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The department's seizure of Gray's accounts was preceded by a trial in which a judge determined the amount of arrearages pursuant to G. L. c. 119A, s. 6 (b) (1), by notices of assessment and levy pursuant to s. 6 (b) (2) and (10), and by administrative review pursuant to s. 6 (b) (2). Moreover, in bringing this action Gray is taking advantage of the postdeprivation procedure provided for in s. 6 (b) (11). On the other side of the balance, "[i]t is hard to imagine a more compelling state interest than the support of its children." Duranceau v. Wallace, 743 F.2d 709, 711 (9th Cir. 1984). We conclude that the department's seizure of Gray's assets did not violate due process guarantees.

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Cf. Leger v. Commissioner of Revenue, 421 Mass. 168, 172 (1995), cert. denied sub nom. Leger v. Adams, 116 S. Ct. 1264 (1996) (in tax collection, postdeprivation procedures alone satisfy the demands of due process).

Report discharged.

LYNCH, J. (dissenting). Because I believe that the seizure at issue unconstitutionally modifies a valid court order, I respectfully dissent.

The court correctly states ante at 671, that neither the executive nor legislative branch may reverse, modify, or contravene a court order. See, e.g., Department of Revenue v. Jarvenpaa, 404 Mass. 177, 183 (1989). I also agree that, at least to some extent, a judicial decree incorporates existing pertinent statutes. [Note Dissent-1] See ante at 675; Ierardi, petitioner, 366 Mass. 640, 650 (1975); Russell Box Co. v. Commissioner of Corps. & Taxation, 325 Mass. 536, 540 (1950); Sheehan, petitioner, 254 Mass. 342, 345 (1926). Therefore, it follows that the judge's decree ordering the obligor to pay $25 a week toward his arrearages incorporated the terms of G. L. c. 119A, s. 6 (b), at least as that statute existed at the time of the decree. [Note Dissent-2]

I do not agree, however, that the judge's decree also incorporates the Department of Revenue's (department's) interpretation of the statute contained in Child Support Enforcement, CSE Directive C-93-1. We have not previously shown such deference to administrative determinations and the court offers no justification in law or public policy for doing so here. Administrative interpretations and regulations are not statutes. There are excellent reasons to limit the incorporation doctrine to statutes. See generally Arthur D. Little, Inc. v. Commissioner of Health & Hosps. of Cambridge, 395 Mass. 535, 557-563 (1985) (Lynch, J., dissenting). "[A]n

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agency is not a legislature." Id. at 559, quoting State Farm Mut. Auto. Ins. Co. v. Department of Transp., 680 F.2d 206, 221 (D.C. Cir. 1982), vacated on other grounds, Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983). While parties and judges may be presumed to know what statutes apply to a given court order, the same cannot be said of administrative interpretations of those statutes. Such interpretations, whether in the form of regulations, directives, or guidelines, lack the legal force of statutes; I would decline to grant them that force in this context.

Although I do not agree that the judge's order in this case incorporated the department's interpretation of s. 6 (b), in my view the department's seizure would still be constitutional if the language of s. 6 (b) itself reserved to the department the right to make such a seizure. See Ierardi, petitioner, supra; Russell Box Co. v. Commissioner of Corps. & Taxation, supra; Sheehan, petitioner, supra. A close reading of the statute, in both its pre-amendment and post-amendment forms, however, does not indicate such a reservation. Both versions say nothing about the department's power to seize assets in the face of a court order establishing the amount due for unpaid child support and establishing a payment schedule to discharge that obligation. Although the statute grants to an administrative agency as well as to the court the power to establish the amount due to satisfy the support obligation, I doubt that the court would find constitutional a redetermination of that amount by the agency subsequent to a court order. For the purposes of constitutional analysis, I fail to see any meaningful distinction between the provisions of the court order determining the amount of arrearages and the method of repayment. Even if one views the statute as ambiguous with regard to a conflict between the court's power to order payment of arrearages and the department's power to levy and to seize assets, such ambiguities should be resolved in favor of the obligor. See Grady v. Commissioner of Revenue, 421 Mass. 374, 377 (1995), and cases cited. See also Slater v. United States Fidelity & Guar. Co., 379 Mass. 801, 804 (1980). Therefore, the court order did not reserve to the department the right to seize the obligor's property if the exercise of that right conflicted with the terms of the court order itself. I conclude that the department's seizure modified the court's order and was, therefore, unconstitutional. I dissent.