Rhode Island v. Montijo

1980 Mass. App. Div. 146, 1 Mass. Supp. 647
CourtMassachusetts District Court, Appellate Division
DecidedSeptember 17, 1980
StatusPublished
Cited by6 cases

This text of 1980 Mass. App. Div. 146 (Rhode Island v. Montijo) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rhode Island v. Montijo, 1980 Mass. App. Div. 146, 1 Mass. Supp. 647 (Mass. Ct. App. 1980).

Opinion

Welsh, J.

This is a petition under the Uniform Reciprocal Enforcement of Support Act, G.L.c. 273A.

It is alleged that the petitioner is the wife of the respondent, the parties having been married in the Commonwealth of Puerto Rico on or about June 7, 1967. It is further alleged that the respondent is the father of two minor children named in the petition and that he has refused and neglected to provide fair and reasonable support to the petitioner and to the two minor children of the parties since 1970.

The respondent filed an answer2 denying any obligation to support one of the children because the child was bom prior to the marriage and asserting that he suffered a disabling industrial accident and has no present ability to support the other child named in the petition.

At the hearing, the petition together with appropriate supporting affidavits were presented. Section 9 of Chapter 273A provides, inter alia, that the verified statement of the petitioner contained in the petition shall constitute prima facie evidence on the issues of the existence of the duty of support, of the failure to provide such support, and of the fact of the unreasonableness of such failure. See Commonwealth v. Bird, 264 Mass. 485, 489 (1928). Unlike a presumption which becomes inoperative when evidence to the contrary is introduced, prima facie evidence remains as evidence in the case to be weighed by the finder of fact notwithstanding the presence of contrary evidence. Ferreira v. Franco, 273 Mass. 272, 274 (1930). Leach & Liacos, HANDBOOK OF [147]*147MASSACHUSETTS EVIDENCE (4th ed. 1967), p. 56. But see Kirby v. Kirby, 338, Mass. 263, 269 (1959). The duty of support for the child is inferable from the existence of the marriage between the petitioner and respondent and from the birth of the child bom during the existence of the marriage relationship. However, the duty of support as to the child born before the marriage must be made to appear either from the evidence or the documents whose contents are given the effect of prima facie evidence by statute. The report is silent on whether or not the respondent has either acknowledged as his own or been adjudicated the father of the older child named in the petition. In any event, the court made an order that the respondent pay the sum of $20.00 weekly for the support solely of the younger of the two children. Thus, the question of the older child’s entitlement to an award of support is not before us.

The principal question which the report seeks to present is whether or not under the circumstances outlined below the court was warranted in entering an order compelling the respondent to pay weekly support of $20.00 for the younger child named in the petition.

Because of certain difficulties with the report and for other reasons outlined below, we remand the case to the trial court with instructions to supplement the report and with leave for the taking of additional evidence, in its discretion.

There was evidence contained in the report which would tend to show the following:

The respondent is presently totally disabled and is ineligible to receive disability assistance from the Social Security Administration. He receives no public assistance from any source. Sometime prior to April 12, 1979, he had been employed under the CETA Program by the City of Taunton. He suffered a disabling industrial accident which rendered him totally incapacitated to work. On April 12, 1979, the Industrial Accident Board approved a lump sum settlement of $20,000.00. The settlement provided that the respondent receive $5,250.003 The sum of $10,000.00 was disbursed to the respondent’s present wife (not the petitioner) in release of her inchoate rights. The respondent paid various bills and now claims to have none of the money that was paid directly to him.

The court found that the settlement was fraudulent as against the rights of the minor child, apparently based upon its assessment that the disbursement out of the award to the respondent’s present wife was disproportionately large. The court further found that the respondent was totally in control of the amount paid to his present wife and that said sum was, in effect, a payment to himself, since he resides with his spouse and controls the expenditure of these sums.

1. The respondent did not file any requests for rulings of law. See Souza v. Kokoszka, 36 Mass. App. Dec. 199 (1965). Accordingly, we treat this as an appeal from a general finding. Id. at p. 202; Contrast Kirby v. Kirby, 15 Mass. App. Dec. 116, 119 (1958), and cases cited therein. Although a general finding would, in itself, import a finding of all subsidiary facts necessary to support it, Moss v. Old Colony Trust Co., 246 Mass. 139, 143 (1923), and would be conclusive if there is any evidence to support it, id, at p. 143, where the judge apparently did make certain voluntary subsidiary findings of fact upon which he arrived at his general findings, we are of the opinion that the cause ought to be remanded with the instruction that the court set forth separately and in full all the subsidiary findings in the revised report. It would aid us materially if the judge saw fit to include a summary of any additional evidence which might be adduced at a rehearing if ordered in the trial court’s discretion, bearing upon the question of fraudulent conduct in procuring the award in such a way as to attempt to insulate a substantial part of it from claims of this sort, and on the matter of control by the respondent of the expenditure of [148]*148the fund by his present wife.

We are not unmindful that evidence of such facts is, for the most part, circumstantial and that considerable deference is to be accorded on our part to the prerogatives of the trial judge as a finder of fact and as regards credibility of oral testimony.

A man without employment or income may still be adjudged guilty of failure to support his wife and children if the court finds that it is within his power to take action to carry out his obligation, but declines to do so. Commonwealth v. Pouliot, 292 Mass. 229, 231-232 (1935).

2. Appellant has sought to include with the report a document purporting to be a transcript of the proceedings in the trial court. The “transcript” appears to have been made up by a person who audited a tape recording of the proceeding in the district court. The transcriber acknowledges that there were a number of ‘ ‘inaudibles’ ’ in the tape. The “transcript” is not certified in the manner prescribed by G.L.c. 233, § 804.

The appeal procedures for civil cases in the district courts more closely resemble the former practice of appellate review by bill of exceptions than by appeal pursuant to the Rules of Appellate Procedure. 365 Mass. 844. The present Rules of Appellate Procedure are the practice of review by appeal in the federal courts. For example, the request for report is comparable to the taking of an exception under the bill of exceptions procedure. Barton v. Cambridge, 318 Mass. 420, 423 (1945). The analogy to bills of exception has been alluded to in other contexts. See Gallagher v. Atkins, 305 Mass. 261, 263 (1940); Mooney v. Jud’s Home Insulation Co., Inc., 368 Mass. 809, 810 (1975).5

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1980 Mass. App. Div. 146, 1 Mass. Supp. 647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rhode-island-v-montijo-massdistctapp-1980.