Opinion
15-P-132
03-10-2016
MICHELLE ANN LEWIS v. JOSEPH M. CAPUTO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff brought a complaint for modification of custody under G. L. c. 209C against the father of her nonmarital child. After dismissing the complaint, the trial judge allowed the defendant's motion for fees and costs against the plaintiff. She appeals from that order.
The plaintiff argues that there was no statutory authority for the order. She asserts that in an action under G. L. c. 209C, fees are available only under G. L. c. 231, § 6F, and that the requirements of that section have not been met.
The plain language of the statutes supports the plaintiff's argument. However, as the Supreme Judicial Court has explained, "General Laws c. 209C, governing custody of children born out of wedlock, does not contain a specific provision for fee shifting. However, the statutory authority to shift fees in marital custody disputes, G. L. c. 208, § 38, has been read to extend to nonmarital children." J.S. v. C.C., 454 Mass. 652, 665 n.19 (2009). Accord Doe v. Roe, 32 Mass. App. Ct. 63, 69 (1992) ("The Legislature has acknowledged the need for the equal treatment of children born in or out of wedlock. General Laws c. 209C, § 1, as inserted by St. 1986, c. 310, § 16, specifically states: 'Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children.' Serious constitutional questions would arise were we to interpret the statutes to allow attorney's fees for modification of support orders for children born of divorced parents but not for those born of unmarried parents. Accordingly, we read G. L. c. 209C, § 1, which explicitly states that such children are to be treated equally, as providing legislative support for allowing judges the same discretion to award legal fees in actions seeking support for illegitimate children as is permitted under G. L. c. 208, § 38"). The fact that neither the party requesting fees nor the judge specified the relevant statutory section under which the fees were requested or awarded is not material to our analysis. See, e.g., Brooks v. Brooks, 65 Mass. App. Ct. 129, 132 n.11 (2005). Because we conclude there was legal authority for the award, the order assessing attorney's fees and costs is affirmed.
So ordered.
By the Court (Cypher, Trainor & Rubin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 10, 2016.