Nonsupport of Children
Failure to Pay Child Support May No Longer be a Crime
The Minnesota Supreme Court issued an opinion last week that totally changed the prosecution for Minn. Stat. § 609.375, Nonsupport of Spouse or Child.
State of Minnesota vs. Larry Allen Nelson, ____ N.W.2d ________ (2014)
According to Minn. Stat. S 609.375 the crime of nonsupport of spouse or child is defined as “Whoever is legally obligated to provide care and support to a spouse or child, whether or not the child’s custody has been granted to another, and knowingly omits and fails to do so is guilty of a misdemeanor, and upon conviction may be sentenced to imprisonment for not more than 90 days or to payment of a fine of not more than $1,000, or both.” Further on in the statute it defines a gross misdemeanor violation and a felony violation but still the crime requires that the nonsupport is based on the legal obligation to provide “care and support” and that is what this case is all about—“care and support.”
Historically counties on behalf of the State of Minnesota had the ability to charge an obligor with this crime after attempting to obtain contempt orders against obligors who have failed to pay their child support obligations. In this present case, Mr. Nelson was convicted of a felony for failing to pay his child support obligation. He appealed it claiming that the State “did not prove beyond a reasonable doubt that he omitted and failed to provide care to his children.” In a split decision, the Supreme Court agreed with him and reversed his conviction.
The Supreme Court found that the word “care” “refers to those nonmonetary legal obligations that require watchful oversight, attentive assistance, or supervision.” In other words, it is not referring to child support. The State introduced evidence that Mr. Nelson failed to “support” his children by not paying his child support but the State did not introduce evidence that Mr. Nelson did not “care” for his children. As a result, the State did not meet their burden. Due to this recent interpretation of the statute, the legislature will likely address the statute to allow the State to prosecute without having to prove “care” was lacking.
Interestingly, some form of this statute has been around for many years. In September 1963 a portion of the statute read as follows:
Whoever is legally obligated and able to provide care and support to his wife who is in necessitous circumstances, or his child, whether or not its custody has been granted to another, and intentionally fails to do so is guilty of non-support of said wife or child, as the case may be, and upon conviction thereof may be sentenced to imprisonment for not more than 90 days or to payment of a fine of not more than $100; if failure to provide care and support to a minor child or a pregnant wife continues for a period in excess of 120 days such person is guilty of a felony and may be sentenced to imprisonment for not more than five years.
Obviously the legislature has taken this very seriously for over 50 years.
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