Opinion
No. 11–P–1337.
2012-11-21
C.D. v. S.M.
By the Court (RAPOZA, C.J., TRAINOR & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, C.D., appeals from the March 11, 2011, judgment of dismissal of his complaint in equity in the Worcester Probate and Family Court. This case involves the paternity of a child born in October, 2008, to mother. The defendant and mother married in 1995 and lived together until mother's death in June, 2009, with a one-year separation beginning in late 2003. From 2001 until her death, mother engaged in an extramarital affair with the plaintiff. The plaintiff contends that he is the child's father.
On October 9, 2009, the plaintiff filed a verified complaint in equity to determine paternity of the child. A preliminary hearing was held over three days in late 2010. Following extensive findings of fact, the judge entered the judgment of dismissal, concluding that the plaintiff had not proved the existence of a substantial parent-child relationship by clear and convincing evidence.
Discussion. “[A] person alleging himself to be the father of a child born to a married woman is not entitled to produce evidence of paternity unless he can first show by clear and convincing evidence that he has a substantial parent-child relationship with the child.” M.J.C. v. D.J., 410 Mass. 389, 393 (1991) ( M.J.C .), citing C.C. v. A.B., 406 Mass. 679, 689–691 (1990) ( C.C.). The plaintiff asks us to modify the standard set forth above in response to modern trends in society and law. Although the facts and circumstances of the present case may be different from those in M.J.C. and C.C., the basic framework of those holdings obtains here. As in M.J.C. and C.C., the plaintiff alleges that he fathered a child whose mother was, at the time of conception and birth, married to another man. See C.C., supra at 680; M.J.C., supra at 389–390. Because the M.J.C. and C.C. framework is applicable to this case, we decline the invitation to modify the standard.
We must determine therefore only whether the trial judge's findings were clearly erroneous. See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). “A finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 792 (1986), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). Furthermore, “the judge's assessment of the credibility of the witnesses and the weight of the evidence is entitled to deference.” Adoption of Elena, 446 Mass. 24, 31 (2006).
Here, the judge made detailed findings and conclusions based on the factors established in C.C., supra. These factors include “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 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.” 406 Mass. at 690. These factors do not weigh in the plaintiff's favor. For example, the plaintiff's name does not appear on the birth certificate or baptismal records, nor did he take part in naming the child. He did not know the child's height and weight, the type of formula the child required, or the child's pediatrician. The defendant, not the plaintiff, was living with mother at the time of conception. Contrast id. at 680–681. The plaintiff may disagree with the judge's findings, but on review of the record, we cannot say the findings below were clearly erroneous.
The plaintiff next contends that the judge improperly considered evidence of the defendant's role with the child after the death of mother. The parties disagree on whether the court's June 17, 2010, order limited the admission of evidence to events occurring before mother's death. We need not decide that issue here because the plaintiff had from the child's birth until mother's death, more than eight months, to develop a substantial parent-child relationship, but he failed to do so. See M.J.C., supra at 394 (plaintiff failed to establish parent-child relationship in the four and one-half months before the mother denied him further access to the child). Therefore, to the extent the evidence admitted may have exceeded the scope permitted by the judge's order, any such violation was not prejudicial because the findings as to the plaintiff's status before mother's death were overwhelmingly dispositive that the plaintiff had not established the required parent-child relationship.
Finally, we consider the defendant's recovery of legal fees and costs from the plaintiff. A court may award reasonable legal fees and costs if “substantially all of the claims ... were wholly insubstantial, frivolous and not advanced in good faith.” G.L. c. 231, § 6F. Here, the plaintiff himself admitted in the pleadings that it would be “almost impossible” to meet the standard set forth in C.C. and M.J.C. Yet the plaintiff still advanced the case. Although the judge may not have used the words “frivolous” or “insubstantial,” she certainly implied as much in her finding that the plaintiff's “pleadings admit that he cannot prove by clear and convincing evidence that he had a substantial parent-child relationship with [the child].” Accordingly, we affirm the award of legal fees and costs under G.L. c. 231, § 6F.
The defendant also requests an award of the attorney's fees and costs of defending this appeal. We allow that request. The defendant shall file an application for fees and costs, with appropriate supporting documentation, with this court within fourteen days of the date of the rescript. See Fabre v. Walton, 441 Mass. 9, 10–11 (2004). The plaintiff shall have fourteen days thereafter to respond.
Judgment of dismissal affirmed.