State v. Davis

• Decision Date: 05 June 1984
• Docket Number: No. WD,WD
• Citation: 675 S.W.2d 410
• Parties: STATE of Missouri, Respondent, v. Theodore Roosevelt DAVIS, Jr., Appellant. 34553.
• Court: Missouri Court of Appeals

Page 410

675 S.W.2d 410

STATE of Missouri, Respondent, v. Theodore Roosevelt DAVIS, Jr., Appellant.

No. WD 34553.

Missouri Court of Appeals Western District.

June 5, 1984.

As Modified July 31, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

July 31, 1984.

Theodore M. Kranitz, St. Joseph, for appellant.

Michael A. Insco, Dean A. Davidson, St. Joseph, for respondent.

Before SHANGLER, P.J., and KENNEDY and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

The defendant appeals a jury conviction for criminal nonsupport of his minor son, a Class A misdemeanor, § 568.040 RSMo 1978, ¹ and his sentence of one year imprisonment in the county jail. The state had charged him with the Class A misdemeanor of knowingly failing to provide, without good cause, adequate food, clothing, lodging, medical and surgical attention for his minor son, and the Class D felony of leaving the state for the purpose of avoiding the obligation to provide such support. The jury found him guilty only of the misdemeanor charge.

The facts consistent with the jury's verdict, disregarding the appellant's evidence except that supporting the conviction, are as follows. Appellant Theodore Roosevelt Davis, Jr. was married to Christina Davis until their divorce in July of 1981. Custody of their minor son, Cory Ted Davis, was awarded to Mrs. Davis, and Mr. Davis ordered to pay weekly child support of $47. Mr. Davis provided support for his son until his divorce became finalized, at which time the payments stopped. During the divorce proceedings, he had warned his wife outside the courtroom that she would be sorry and he would be sure she never got a penny out of any settlement of the divorce, or get any child support. He further threatened to get a pickup or trailer and travel around without a permanent address so that he could not be found. Mr. Davis testified that the court's division of property and custody award had angered and upset him.

Between September, 1981 and June, 1982, i.e. the time between the divorce decree and Mr. Davis' arrest on the charges for which he stood trial, he failed to pay any child support either directly to his wife or through the circuit court. After September 19, 1981, Mrs. Davis received Aid to Families with Dependent Children. As a result, the Missouri Division of Family Services was enforcing the child support order as reimbursement for the payments it made to Mrs. Davis. In addition to not paying the court-ordered support, Mr. Davis failed to provide any food, clothing, lodging, or medical or surgical attention for his son. He also cancelled his son's policy of medical insurance.

Within a few days of the award of marital property, custody, and child support to Christina Davis, Mr. Davis transferred assets in excess of $186,000 held in local St. Joseph bank accounts to Kingsville, Texas. The transfer of assets resulted in substantial early withdrawal penalties. The appellant claimed that higher interest rates more than compensated for the withdrawal penalties. He also admitted the higher interest rates were available at the local banks as well as in Texas.

On several occasions after the dissolution Mrs. Davis attempted but was unable to contact her former husband by telephone at his St. Joseph address concerning matters that arose about their son. Mr. Davis claimed his residence remained in St. Joseph, although he also admitted traveling to Texas in a trailer and staying at a mobile home park in Kingsville, Texas for a period of time in late 1981.

After Mr. Davis' arrest he paid all of the back child support, and then together with his attorney executed a trust agreement which provided that child support be paid for the benefit of Cory Ted Davis until he reached age 21 or otherwise was emancipated. Paragraph 2(e) of the trust instrument stated that the trust would fail upon the trustee's receipt of proper notice of a final judgment of conviction against Mr. Davis for the crime of nonsupport. In the event of a court challenge to the legality of the paragraph 2(e) the trust would fail and the trustee American National Bank would make payment to his two emancipated sons from an earlier marriage of all amounts in the trust. Litigation concerning the trust spawned an appeal, consolidated with this case and handed down concurrently. See 672 S.W.2d 182 (Mo.App.1984).

The jury found Mr. Davis guilty of the charge of non-support without making a finding that he left the state of Missouri for the purpose of avoiding the obligation to support his minor son (essential to the felony charge). The trial judge imposed the jury's sentence of one year imprisonment in the county jail for the misdemeanor conviction.

I.

Appellant's ten points will not be considered in the same order presented in his brief. The first three points addressed by this opinion revolve around his argument that the criminal nonsupport statute, § 568.040, RSMo requires evidence that the minor child was actually in need of food, clothing, lodging and medical or surgical attention. He first argues the court erred in failing to direct a verdict on his behalf because no evidence of actual need was presented, nor did the state establish "the quantum of support which would be adequate in the circumstances of Cory Ted Davis and his station in life...."

In pertinent parts § 568.040 states:

1. * * * [A] parent commits the crime of nonsupport if such parent knowingly fails to provide, without good cause, adequate support which such parent is legally obligated to provide for his minor child or his stepchild.

2. For purposes of this section:

(1) "Support" means food, clothing, lodging, and medical or surgical attention;

* * *

* * *

4. Criminal nonsupport is a class A misdemeanor, unless the actor leaves the state for the purpose of avoiding his obligation to support, in which case it is a class D felony.

The present criminal nonsupport statute has a long history of transformations and amendments. ² The earliest statutes made it a crime for "any man ... [to] fail, neglect, or refuse to maintain and provide" for his children "born in or legitimatized by lawful wedlock...." Rev.Stat.1899 § 1861. The legislature began to refine the language of the statute by amendment in 1909, making it a crime for a mother or father to refuse or neglect to provide "necessary food, clothing or lodging" for legitimate or adopted children, or children under their legal care and control. Rev.Stat.1909 § 4492, amended Laws 1909, p. 450. The adjective "necessary" continued to appear before the phrase "food, clothing or lodging" in later versions of the nonsupport statute. See Rev.Stat.1919 § 3273; Rev.Stat.1929 § 4026; Rev.Stat.1939 § 4420. In State v. Thornton, 232 Mo. 298, 134 S.W. 519 (1911), the defendant raised the defense to his conviction under R.S.1909 § 4492 that although he provided no support, his children were "well taken care of" and supplied by the wife's father with "all necessary food, clothing and lodging." In overturning the conviction, the court reasoned:

The statute penalizes the refusal of the father to supply necessary food, etc. Under the law pertaining to necessaries, a necessary article is one which the party actually needs. It is not enough to show that the article is per se classed as necessary, such as food and clothing. It must also be actually needed at the time.

134 S.W. at 520. The courts reasoned that through the criminal statute, the legislature intended only to secure proper care for infants rather than impose punishment for failure to perform parental duties. Id. at 521. No punishment would result where the child received support, irrespective of its source. Construction of § 4492 was that it denounced a penalty for failure to supply an infant, "with such food, clothing, and lodging as it actually need." Id. State v. Vogel, 51 S.W.2d 123, 124 (Mo.App.1932); State v. Winterbauer, 318 Mo. 693, 300 S.W. 1071, 1072 (1927); State v. Russell, 102 S.W.2d 727, 728 (Mo.App.1937); State v. Hartman, 259 S.W. 513, 514 (Mo.App.1924); State v. Ball, 157 S.W.2d 262, 263 (Mo.App.1942).

Two changes relevant to the issue first appeared in the nonsupport statute codified as § 559.350 RSMo 1949. ³ Only the first change has survived to the present criminal code. First, the legislature replaced the adjective "necessary" with "adequate," and further refined the term "support" to include "adequate food, clothing, lodging, medical or surgical attention." The second change included new language to the effect that conviction would lie whether or not the child actually suffered "physical or material want or destitution...." ⁴ In State v Osborne, 413 S.W.2d 571 (Mo.App.1967), the defendant unsuccessfully argued that his conviction for child abandonment under § 559.350 RSMo 1959 could not stand because the state had not produced evidence that the abandoned child actually needed food, clothing or lodging. The court relied upon the express language of the then applicable statute to conclude the legislature intended to avoid the previous line of decisions where "a callous parent could entirely forsake his legal and moral obligations to his child and still be guilty of no criminal offense if the child was adequately cared for by others." 413 S.W.2d at 574. A parent could now be found guilty whether or not the child actually needed any support, as long as the state proved the ability to provide such support. See State v. Akers, 287 S.W.2d 370 (Mo.App.1956).

Against this historical backdrop, appellant argues that the legislature intended to resurrect the defense recognized in Thornton, supra, and its progeny under prior statutes because the present statute, § 568.040, no longer contains the express language that conviction would lie whether or not the child is in actual need of support. ⁵

The appellant's interpretation of legislative history has some merit but is not persuasive. If possible, the statute's intent should first be ascertained from its...