To be convicted on a felony nonsupport charge and be sent to prison, a noncustodial parent has to miss payments for 26 weeks out of a consecutive 104-week period.
In the case that went before the court, Robert Pittman owed $68,626 to the mother of his twin daughters, who turned 18 in August 2006. A Marion County prosecutor indicted Pittman for not paying child support in 2009.
Michael Baker, chief assistant prosecutor for the criminal nonsupport division of Gmoser’s office, explained how the justices arrived at their decision.
“The Pittman Court based its decision upon the use of the present tense in the phrase ‘is legally obligated to support’ to rule that after a child becomes emancipated, an obligor cannot be criminally prosecuted for failing to make payments toward his arrears, despite the fact that a court orders the payments to be made,” Baker wrote in a memorandum. “The court determined, instead, that, in such cases ‘the state is left to its civil options.’”
Baker said he was forced to dismiss several pending cases after the decision came down, totaling $112,000. The largest single bill in that batch of cases was $65,797, he said.
Baker said the decision has far-reaching implications and will allow parents to “game the system.”
“Under the Pittman decision, an obligor without a prior conviction for nonsupport can simply stop paying support 25 weeks and 6 days before his child becomes emancipated with full knowledge that he will never face felony charges for failing to pay child support after such date,” Baker said.
“Additionally, in many cases, parents make partial or sporadic payments over the course of many years and, as a result, their cases do not get referred for felony prosecution. Over the course of many years, this type of defendant will accumulate thousands of dollars in arrearages and will be free to stop making payments of any kind after the child becomes emancipated,” he said.
Gmoser said this was a very “technical” opinion of the court and the end result has seriously hampered the ability to collect back child support. He said parents now have to hire civil attorneys to collect the debt. Criminal prosecutions — his responsibility — do not cost the parents anything because the prosecutor represents the Child Support Enforcement Agency that goes after unpaid child support.
“The leverage I have always had to collect that has been the threat of prosecution, which has always worked very well…,” Gmoser said. “The threat of prosecution generally does coercively bring about the payment of support and that to me has always been a good tool in my toolbox, to make deadbeat parents pay their kids their support.”
Chief Justice Maureen O’Connor noted the legislature should probably revise the statutes that let Pittman and others to escape prosecution.
“This is in essence rewarding people who don’t support their children. If they duck their obligation throughout the children’s minority then they can wash their hands of the obligation,” the chief said and later addressed Pittman’s attorney. “Look at his history, it’s unconscionable, but it doesn’t bother him. Maybe the statute needs to be addressed to cover people like your client.”
The prosecutor here has already started writing letters to Butler County state legislators asking them to fix some issues in the law that led the high court to come to the conclusion it did.
“I intend to ask our legislature to make some definitional changes that the Supreme Court relied upon in denying access to the criminal justice system, and by making those changes, reinvest prosecutors with the authority to prosecute these deadbeat parents,” Gmoser said.
Sen. Bill Coley, a Liberty Twp. Republican, said he is aware of the glitch in the laws and he plans to include a fix in the CSEA bill he plans to reintroduce this legislative term. He was able to get Senate Bill 308 — that is basically a technical clean-up bill — through the Senate last year but it never made it out of the House during the lame duck session.
Coley said he doesn’t think he will have any issues getting the “fix” turned into law.
“I don’t anticipate anybody will say ‘oh no, I don’t think that we should do that, we want to encourage people not to support their children and if you don’t support them long enough, you get a free walk ’ I don’t think anybody is going to say that,” Coley said. “I think what people are going to say is, given the duties of the county prosecutor under the Constitution, can we assign those duties and make that enforceable even after the child emancipates.”
The Butler County CSEA has been a top performing agency in the state for 13 years straight. Narka Gray, assistant director for operations and finance for BCCSEA, said the high court’s decision is a very big setback.
“We are very upset and we’re upset because we are here for collection of child support and especially when it reaches the status of a criminal non-support level, it’s a felony and we don’t want that avenue taken away,” she said. “That’s what our purpose is to establish and collect child support.”
She said as the legislators work to reinstate the ability to prosecute deadbeat parents for arrearages, they will need to make some changes in the way they do business to ensure they can collect as much money as possible. Gray said prosecution is the “last resort” because if the person is in jail they can’t pay support and having a felony on their record is a “barrier” to employment.
“If this stays the way it is we’re going to have less time to work with the obligors involved,” she said. “We’re going to have to push the felony instead of being able to work with the obligor and maybe get them on the right track. We’re going to have to push that felony button sooner so the child doesn’t turn 18 on us… We try to do that as a last resort because we’re trying to work with people.”
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