Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

NONSUPPORT (ME156)

Also see Contempt; Indigency/Child support and payment of debts generally.

Criminal Nonsupport

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.

Criminal Nonsupport

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. 20162, 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 reversal.

State v. 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. 19819, 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 R.C. 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. C.A. 19176, 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, 2004-Ohio-1699.

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. C-020114, 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 marriage.

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 family members.

State v. Herring (1993), 88 Ohio App. 3d 228 -- Since nonsupport is not a theft offense within the definition of R.C. 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 alimony.

Columbus v. Bickel (1991), 77 Ohio App. 3d 26 -- Criminal nonsupport may be the basis for revocation of probation.

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State v. Palmer, Montgomery App. No. 19221, 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. 03CA66, 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 emancipated."

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 sought.

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'), R.C. 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 R.C. 3109.05(D).

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 R.C. 2151.352 applied.

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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