Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
Also see Contempt;
Indigency/Child support and payment of debts generally.
Contempt and support enforcement actions
R.C. 2919.21 -- Nonsupport or contributing to
nonsupport of dependents.
R.C. 3113.06 -- Failure to pay maintenance
cost for ward of welfare department or children services agency.
State v. Bruno, 184 Ohio App. 3d 126,
2009-Ohio-4772 – Support order was made in Florida. Defendant was prosecuted
in Ohio for both failure to pay adequate support and failure to pay support as
ordered. All counts reversed because they were not supported by sufficient
evidence. As to the adequate support counts, the court failed to consider the
needs of the child and the needs and resources of the custodial parent. As to
the support order counts, the defendant had made some payments and the out of
state records were so confused that the court could not properly find he had
recklessly failed to pay during the periods specified in the various counts.
State v. Drake, 192 Ohio App. 3d 216,
2011-Ohio-25 – Defendant charged with nonsupport was deemed ineligible for
intervention in lieu of conviction because support was for a child under age
thirteen. Held that the victim is the payee of the support order, not the child
for whose benefit it has been ordered.
State v. Holmes, Franklin App. No.
03AP-787 -- Defendant's unrebutted evidence in support of the affirmative
defense of inability to pay the full support order leads to reversal on manifest
weight claim, though the state's evidence is deemed legally sufficient.
State v. Jones, Montgomery App. No.
2004-Ohio-4519 -- Absent payment of even a modicum of support, it was not
an abuse of discretion not to instruct on the affirmative defense of inability
to pay. Failure to make findings or supplying reasons addressed the objectives
of sentencing supporting imprisonment instead of community control leads to
Tull, 168 Ohio App. 3d 54,
2006-Ohio-3365 -- Defendant sought to withdraw his no
contest plea before sentencing complaining that the amount of
support ordered exceeded his income. The judge blew this off,
saying that the amount ordered was only a matter for the
domestic relations court. Denial of the motion was an abuse of
discretion. Among the factors to be considered is whether the
defendant has a meritorious defense. Inability to pay is an
affirmative defense included in the nonsupport statute.
State v. Boykins, Montgomery App. No.
2004-Ohio-161 -- Defendant was prosecuted for not paying support in
accordance with a court order. Culpable mental state of the offense is
recklessness. Trial court erred by refusing to permit testimony on the
2919.21(D) affirmative defense that he was unable to pay the established support
but did provide the support that was within his ability and means.
State v. Mobley, Montgomery App. No.
2002-Ohio-5535 -- Double jeopardy may apply in cases involving
contempt charges, but only if the contempt penalty is criminal in nature, rather
than civil. Lack of a purge order meant contempt for nonsupport was criminal.
Prosecution for criminal nonsupport was barred. Court characterizes civil
criminal contempt for nonsupport as a lesser-included offense to criminal
nonsupport. Compare State v. Montgomery, Montgomery App. No. 20036,
State v. Collins (2000), 89 Ohio St. 3d
524 -- (1) Recklessness is the culpable mental state of criminal nonsupport. (2)
Court refuses to find portions of the prosecutor's closing argument pointing out
the defendant's failure to document suggestions developed during testimony of
witnesses, other than the defendant, to be burden shifting or a comment on his
failure to testify.
State v. Beach, 148 Ohio App. 3d 181,
2002-Ohio-2759 -- (1) Ongoing participation in juvenile court proceedings to
determine paternity and support payments does not negate the recklessness
element of criminal nonsupport for purposes of appellate review the sufficiency
of the evidence. (2) In view of testimony by a juvenile court magistrate
concerning those proceedings, an instruction on juvenile court jurisdiction was
not required, notwithstanding a jury question in that regard. (3) An indictment
does not have to cover a 104 week period. That period only sets an outer limit
on how far apart the missed support payments can be.
State v. Murray, 149 Ohio App. 3d 248,
2002-Ohio-3537 -- Coal and speedboat tycoon convicted of criminal non-support of
his daughter by a topless cocktail waitress. Evidence supported conviction - he
could have at least paid something, despite his business setbacks. Eleven-month
sentence affirmed as well.
State v. Hubbell, Darke App. No. 1617,
2004-Ohio-398 -- Upon conviction of criminal non support, the court may order
payment of the entire arrearage as a condition of community control, but is
limited to the amount related to the criminal charge if restitution is ordered
as a separate part of the sentence. Remanded to the trial court for
clarification as to its intention. Also see State v. Stewart, Franklin
App. No. 04AP-761,
2005-Ohio-987 (may be ordered as a condition of community
control); State v. Carpenter, Greene App. No. 2004 CA 56 (may not be
ordered when defendant is sent to prison).
State v. Westendorf, Hamilton App. No.
2003-Ohio-1019 -- A misdemeanor non support conviction may not be
expunged as the victim is a minor.
State v. Chintalpalli (2000), 88 Ohio St.
3d 43 -- Ohio court had jurisdiction to prosecute father for nonsupport, even
though he no longer lived in state, since support order arose form an Ohio
divorce. Venue was proper in the county where the divorce was granted.
State v. Oppenheimer (1975), 46 Ohio App.
2d 241 -- Headnotes: "Criminal prosecution under
R.C. 2919.21 is not a proper
means of enforcing a support order contained in a divorce decree. (2) A parent
having custody of minor children who is able to fully support such children, and
has done so, may not utilize criminal prosecution under
R.C. 2919.21 as a means
of enforcing the obligation of the other parent to contribute to the support of
their minor children."
State v. Schaub (1984), 16 Ohio App. 3d
317 -- A parent is not absolved of his duty to support his children by the fact
they are being adequately supported by others. A parent is presumed to have the
ability to provide support and must raise inability as an affirmative defense.
State v. Flontek (1998), 82 Ohio St. 3d 10
-- Mother and daughter lived together. Autopsy revealed mother suffered from
severe, untreated medical problems. Daughter was indicted for involuntary
manslaughter premised on misdemeanor nonsupport. Syllabus: "R.C. 2919.21(A)(3)
requires an adult child to provide adequate financial support for his or her
dependent parent is the parent is in need of financial assistance and the adult
child has the financial means to provide such support. The term 'support,' as
used in R.C. 2919.21(A)(3), does not encompass nonfinancial support
considerations." Compare State v. Holder (1991), 72 Ohio App. 3d 374.
State v. Risner (1997), 120 Ohio App. 3d
571 -- Defendant was erroneously prevented from pursuing the affirmative defense
that he had provided such support as was within his ability and means. The fact
the defendant had agreed to pay support as a specified level did not foreclose
the affirmative defense.
State v. Parsley (1994), 93 Ohio App. 3d
788 -- Paternity (or maternity) is an essential element of criminal nonsupport
which may not be established by means of a judgment in a divorce action. It was
error to deny the defendant's motion that the court order HLA blood testing in
furtherance that he was not the biological father of a child born during the
State v. Brown (1982), 5 Ohio App. 3d 220
-- In a nonsupport prosecution premised on the failure to make the payments
ordered in a parentage action, non-paternity is not a defense.
State v. East (1994), 93 Ohio App. 3d 289
-- Nonsupport may be elevated to a felony based on the failure to provide
support during 26 out of 104 consecutive weeks, even though there has not
previously been a finding by a court to this effect. Also see State v.
Lizanich (1994), 93 Ohio App. 3d 706.
State v. Cole (1994), 94 Ohio App. 3d 629
-- The failure to provide support during 26 of 104 consecutive weeks is an
element of the crime of nonsupport and not merely a penalty enhancement. It must
be alleged in the indictment. However, it is the period of 26 weeks, and not the
prior court finding, which must be alleged, since the court finding may arise
from the prosecution at hand.
State v. Mays (February 14, 1995),
Franklin Co. App. No. 94APA08-1150, unreported (1995 Opinions 484 -- (1) The
trial court is not required to specifically identify the 26 out of 104 weeks
during which support was not provided. (2) State v. Oppenheimer (1975),
46 Ohio App. 2d 241 distinguished in circumstances where the parent furnishing
support was forced to take on additional employment or accept support from other
State v. Herring (1993), 88 Ohio App. 3d
228 -- Since nonsupport is not a theft offense within the definition of
2913.01, restitution may not be ordered. Payment of the arrearage could,
however, be made a term of probation. Also see State v. Ashley (1991), 74
Ohio App. 3d 92.
State v. Harding (1992), 81 Ohio App. 3d
619 -- Defendant could be prosecuted under
R.C. 2919.21 for failure to pay
Columbus v. Bickel (1991), 77 Ohio App. 3d
26 -- Criminal nonsupport may be the basis for revocation of probation.
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Contempt and support enforcement actions
State v. Palmer, Montgomery App. No.
2004-Ohio-779 -- Whether or not a sentence for contempt creates a
jeopardy bar to criminal prosecution turns on whether it was civil or criminal
in nature. Defendant served one day of ten attached to a prior purge order, and
was placed under a new purge order. Since he "held the keys to the jailhouse"
under the previous order, and was punished for inaction, that penalty was civil
in nature. Thus the nonsupport prosecution may go forward.
Still v. Hayman, 153 Ohio App. 3d 487,
2003-Ohio-4113 -- Mother concealed identity of father until child was fifteen. Laches does not bar establishing paternity at that late date, but does bar an
order for reimbursement of ADC benefits paid.
State v. Leuvoy, Fairfield App. No.
2004-Ohio-2232 -- Driving under suspension charge flowed from suspension
tied to failure to pay support. Court rejects substantive and procedural due
process attacks on such suspensions.
CSEA v. Guthrie (1999), 84 Ohio St. 3d 437
-- Putative father failed to contest paternity action, but later genetic testing
established that he was not the father. Though he was not entitled to relief
from judgment under Civ. R. 60(B)(2) or (4),
R.C. 3111.16 gave the trial court
continuing jurisdiction allowing it to vacate the initial finding of paternity.
Cramer v. Petrie (1994), 70 Ohio St. 3d
131 -- Syllabus: "An obligation to pay child support is not a 'debt' within the
meaning of that term in Section 15, Article I of the Ohio Constitution. Because
this obligation does not fall within the scope of Section 15, Article I, an
order to pay child support may be enforced by means of imprisonment through
contempt proceedings even after the child who is the subject of the order is
In re Owens (1994), 104 Ohio App. 3d 201
-- Absent specific statutory authority, a child support enforcement agency may
not bring an action in its own name, though it may provide representation to a
person seeking support. Agency is not a real party in interest.
Hill v. Hill (1993), 88 Ohio App. 3d 447
-- Non-attorney representative of support enforcement agency should not have
been permitted to make a recommendation to the court as to what the agency
Hockenberry v. Hockenberry (1992), 75 Ohio
App. 3d 806 -- Child support and payment on arrearages withheld from disposable
earnings may not exceed percentages varying between 50% and 65% as set forth in
Title 15 U.S.C. Sec. 1673. Also see Perdew v. Perdew (1989), 61 Ohio App.
3d; Roach v. Roach (1989), 61 Ohio App. 3d 315.
In re Byler (1996), 74 Ohio St. 3d 294 --
Syllabus: "Ohio's Uniform Reciprocal Enforcement of Support Act ('URESA'),
Chapter 3115, does not confer subject matter jurisdiction over issues concerning
child custody and visitation in an action for child support enforcement."
Logan v. Vice (1992), 79 Ohio App. 3d 838
-- In an URESA action, court may not order support payments be impounded until
mother complies with court ordered visitation. See
Dorsett v. Wheeler (1995), 101 Ohio App.
3d 716 -- Child support enforcement agency brought paternity action in which
mother was not separately represented. Trial court erred by not inquiring into
mother's desire for counsel, and by sua sponte ordering mother to seek
employment and changing the surname of the children to that of the father.
McKinney v. McClure (1995), 102 Ohio App.
3d 165 -- The right to appointed counsel applies to all matters properly brought
before the juvenile court, including issues of child custody and visitation
which are adjunct to an underlying support action. Juv. R. 4(A) and
Hollon v. Hollon (1996), 117 Ohio App. 3d
344 -- Child support enforcement agency was not immune from being ordered to pay
attorney fees and costs resulting from its frivolous conduct.
Burchett v. Miller (1997), 123 Ohio App.
3d 550 -- Civil contempt must allow the contemnor the opportunity to purge
himself or herself of contempt, and a court abuses its discretion imposing
conditions that are unreasonable or make compliance impossible. Seek work order
in support proceedings was impossible where contemnor was under house arrest on
pending criminal charges.
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