Charles Johnson v. Elliott Johnson

DANAHER, Circuit Judge

(dissenting).

The complaint filed in the Domestic Relations Branch of the Municipal Court for the District of Columbia1 alleged that the plaintiffs are the minor children “of the defendant, Charles Johnson, who is their natural father. The *890mother and father of these minor children are not married to each other.” Jurisdiction was said to be “derived” from the Act of April 11, 1956,2 and D.C.Code § 16-415 (1961).3 My colleagues concede, as they must, that section 415 is not applicable, for, as they say, “This statute plainly referred only to legitimate children, that is, those of a husband and wife.” They turn, accordingly to D.C. Code § 11-762 (1961) as the predicate for their conclusion that jurisdiction was well founded.

My colleagues here say that the unmarried mother may secure a hollow judgment 4 for the support of her illegitimate children since Public Law 486 5 creating the Domestic Relations Branch had accorded to it jurisdiction over “civil actions to enforce support of minor children.” • In Thomason v. Thomason, 107 U.S.App.D.C. 27, 274 F.2d 89 (1959), we defined “civil actions” to include a counterclaim based upon an agreement for support entered into between an erstwhile married couple. As to such actions Public Law 486 conferred upon the Branch the power previously exercised by the District Court, we said. And see David v. Blumenthal, 110 U.S.App.D.C. 272, 292 F.2d 765 (1961), where we discussed the power which had been “transferred” from the District Court to the Branch. The District Court never exercised jurisdiction over a civil action to secure to an unwed mother, support for her illegitimate children. Surely no such power was transferred if it never existed in the District Court. So my colleagues conclude, in effect, such power was created and vested in the Branch, yet they point to not a single word in the hearings or elsewhere to demonstrate that thereafter the Branch was to exercise a jurisdiction which had been vested in the Juvenile Court.

The grant of such jurisdiction, my colleagues say, “should not be defeated by a mere obscure implication, if any, in a different section of the Code.” I see no-“implication” and no obscurity in section 113 of Public Law 486. It is not in some unrelated “section of the Code.” Section 113 was part of the very same Act. It explicitly provided:

“Nothing contained in this Act. shall be construed so as to affect or diminish the jurisdiction of the Juvenile Court of the District of Columbia, or any judge presiding therein.”

The Juvenile Court had been functioning for half a century. It has investigators and staff officers in position to assist it in carrying out the powers entrusted to it. The Branch has no such facilities. Congress, our local judges and', community leaders concerned with the-problem were fully alive, not only to the-questions inherent in these situations but to the policy16 sought to be implemented-*891As late as January 11, 1951, Congress had passed “An Act Relating to Children Born Out of Wedlock.” 7 First, the Act specifically repealed 37 Stat. 134, 41 Stat. 1144 and 44 Stat. 208. Next, the legislation provided that the “juvenile court of the District of Columbia is hereby given jurisdiction of all cases arising under this Act.” Just as the Branch in Public 486 had been given “exclusive jurisdiction” over civil actions involving agreements with reference to the support of children of married couples, whether later divorced or not, so the Juvenile Court was given “jurisdiction of all cases” arising under the 1951 Act. Thus in section 12 8 the 1951 Act dealt with “Voluntary Acknowledgement of Paternity By Father.” The section outlined the basis upon which the Juvenile Court might give effect to an agreement by a putative father to support a child born out of wedlock. It had long since been held that if a putative father had entered into a valid contract to support an illegitimate child, an action for its breach would lie. Williams v. Amann, 33 A.2d 633 (Mun.Ct.App.D.C.1943). 'The court there held that such an action was to be grounded, not on statutes relating to bastardy proceedings, but on •the breach of the promise to support.

Moreover, the 1951 Act reaffirmed the Juvenile Court’s concurrent jurisdiction with the United States District Court for the District of Columbia as to all cases .arising under the misdemeanor section, D.C.Code § 22-903 (1961). But it did more. The 1951 Act enlarged the definition of the nonsupport misdemeanor previously outlined in section 22-903 so that it would “apply to any person who * * * fails to support his illegitimate child when paternity has been established judicially or when paternity has been directly acknowledged by the putative father under oath, or indirectly acknowledged by voluntarily making contributions to the support of such child.” To cap it all — to execute District policy to secure support for the illegitimate child and relieve the District from the burden of maintenance — to put the entire problem in the hands of a court which for fifty years has been dealing with it and which handles more than 1,000 paternity cases every year — Congress said: “§ 11-907. Jurisdiction — Original and exclusive. 1. Children. — Except as herein otherwise provided, the court shall have original and exclusive jurisdiction of all cases and in proceedings” (emphasis supplied) involving: the determination of paternity of illegitimate children (section 11-907, subd. l.(c)); provision for prenatal expenses (section 11-958); support payments (section 11-959); and, inter alia, the steps to be taken under sections 11-960 and 11-961, previously discussed. That is why Congress in Public 486 provided that nothing contained in that Act shall be construed so as to affect or diminish the jurisdiction of the Juvenile Court. I think my colleagues have misconstrued the legislation.

I think the Branch had no authority to enter the order which the Municipal Court of Appeals affirmed, and which my colleagues now would ratify. I would reverse to the end that a proceeding be instituted in the Juvenile Court of the District of Columbia against Johnson pursuant to the provisions of D.C.Code § 11-961 (a) and (b), for if he is in violation, that misdemeanor is continuous and *892will predicate a present prosecution— with some chance of affording affirmative relief.9 And after all, is that not what the children require — and the policy the District seeks to effectuate ?

. Now known as the Court of General Sessions for the District of Columbia.

. 70 Stat. 111, ch. 204, D.C.Code § 11-758 et seq. (1961), whereby there was created in the Municipal Court for the District of Columbia a Domestic Relations Branch, hereinafter referred to as “the Branch.”

. Quoted in full in the majority opinion, note 3, from which we excerpt only the following:

“Whenever any 7msiand shall fail or refuse to maintain his wife and minor children * * * the court, on application of the wife * * * may decree that he shall pay her, periodically, such sums * * * ” etc. (Emphasis supplied.)

. The Municipal Court of Appeals held that the challenged support order may not be enforced by imprisonment, a conclusion which the majority does not reach. I deem it strange that Congress could be said to have intended that a vain and: empty result be reached when it had already provided means by which to provide monetary relief. See note 6, infra.

. 70 Stat. 111 (1956).

. In 1912 Congress enacted 37 Stat. 134 to-“provide for the support and maintenance of bastards in the District of Columbia.” H.R.Rep.No.105, 62d Cong., 1st Sess. (1911) stated:

“It is believed that the District of Columbia is the only place in the Union where the father is not liable for the support of his illegitimate child. It is estimated that over 50 per cent of the dependent children cared for at the expense of the public appropriation for the District of Columbia are illegitimate. The *891community should be relieved of this burden at the earliest date, and the putative fathers should be made to meet the charges of suppor-t and education of their illegitimate children.”
The report cited Moss v. United States, 29 App.D.C. 188 at page 195 (1907) wherein the court said:
“We fully agreed that the juvenile court should have power upon conviction to compel the father of an illegitimate child to maintain his child.”

. 64 Stat. 1240; D.C.Code § 11-951 et seq. (1961).

. 64 Stat. 1242; D.C.Code § 11-960 (1961).

. Aside from whatever might happen in a § 11-961 (a) and (b) proceeding, instead of a mere money judgment which the Branch has no power to enforce as pointed out by Chief Judge Hood in his dissent, I suspect that at the very least appellant would seek to negotiate an agreement to bring himself within the provisions of D.C.Code § 11-960. Otherwise, possible imprisonment in the workhouse for no more than twelve months, coupled with a fine, would not seem to afford Johnson a propitious prospect.