State v. Davis

• Decision Date: 28 June 1971
• Docket Number: No. 2,No. 56472,56472,2
• Citation: 469 S.W.2d 1
• Parties: STATE of Missouri, Respondent, v. Roosevelt DAVIS, Jr., Appellant
• Court: Missouri Supreme Court

Page 1

469 S.W.2d 1

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

No. 56472.

Supreme Court of Missouri, Division No. 2.

June 28, 1971.

Thomas W. Shannon, Pros. Atty. of St. Louis, Gerald L. Birnbaum, Asst. Pros. Atty., for respondent (Plaintiff).

Thad F. Niemira, St. Louis, for appellant.

FINCH, Judge.

The principal questions presented on this appeal are whether § 559.353, ¹ the criminal nonsupport statute, is unconstitutional, and if not, whether a submissible case thereunder was made against the defendant. ²

Defendant was charged by information in the St. Louis Court of Criminal Correction with failing, neglecting and refusing, without good cause, to provide adequate food, clothing, lodging, medical and surgical attention for his four named children, all of whom were under sixteen years of age. He was found guilty by the judge and sentenced to imprisonment for six months in the City Workhouse. He appealed to the St. Louis Court of Appeals, which transferred the case to this court because constitutional issues were presented. State v. Davis, Mo.App., 462 S.W.2d 178. We affirm.

The evidence pertinent to the questions presented was as follows: Defendant is the father of four young children. In 1967, Patricia Davis, the mother, obtained a divorce in which the court awarded custody of the children to her and directed payment of child support of $12.50 per month per child. In August 1968, Patricia Davis went on welfare, and during that same month the information against defendant was filed. Defendant was employed as a laboratory technician's helper at Jewish Hospital and his take-home pay was $135 to $140 every two weeks. Mrs. Davis also was employed at Jewish Hospital. She testified that she saw defendant frequently and asked for money, to which he replied he could not give her any at that time but would mail something. She testified he had given her only $35 during the preceding year. Defendant testified that over a period of years he had given his former wife $900, but he was not specific as to when those payments were made, or what had been paid during the year preceding the filing of the information. He testified that his wife had told him she didn't want any money from him. He also testified that some man had called, saying he was staying there, that he was taking care of the children and didn't need help from him.

We consider first the constitutional issue. Defendant argues that his duty to support his children had been reduced to a judgment for money in the divorce proceeding and that the instant prosecution merely sought to enforce that judgment by jailing him for nonpayment thereof. This, he says, violates Art. I, § 11, of the Constitution of Missouri, 1945, V.A.M.S., which forbids imprisonment for debt except for nonpayment of fines and penalties imposed by law.

This contention misconceives the nature and purpose of § 559.353. That statute is predicated upon the theory that both parents have a legal obligation to look after and provide for their offspring, and that the failure to perform that obligation, without good cause, is a punishable offense against the state. ³ Such obligation has no reference to the marital status of the parents or even whether the child was born in or out of wedlock. A prosecution under the statute is for violation of the obligation imposed by the statute on the man or wife with respect to his or her minor child. It is not a proceeding to enforce the terms of a divorce decree providing support for minor children and is not a proceeding seeking imprisonment for debt. A divorce decree with a provision for child support is not a prerequisite to a prosecution under § 559.353, and by the same token the existence of such a support decree does not bar a prosecution under that section. ⁴

Defendant cites and relies on Partney v. Partney, Mo.App., 442 S.W.2d 117, but that case is not pertinent to the issue here presented. It involved an attempt by a wife to have her former husband held in contempt of court for failure to pay a balance of alimony, child support and attorney fees provided for in a divorce decree. The court held that this would violate the constitutional provision barring imprisonment for debt. Partney, obviously, had no reference to the misdemeanor created by statute and did not involve a prosecution for violation of such criminal statute. It was simply an attempt by a contempt proceeding to force payment of the sums ordered paid in a divorce decree. That was not permissible.

Also cited is the case of Lodahl v. Papenberg, Mo., 277 S.W.2d 548, in which a former wife sought by civil action to recover from her former husband for expenditures which she had made on behalf of their minor child. The father had been ordered by a divorce decree to make payments for child support, and Lodahl stands for the proposition that, under such circumstances, the wife could not elect to ignore the divorce decree and bring a separate civil action to recover for expenditures which she had made. It is not authority for the proposition that the state cannot make it a crime for a parent to abandon or fail to support a minor child.

Defendant next asserts unconstitutionality by arguing that application of § 559.353 to the particular kind of debt which he says this case involves is a denial to this defendant debtor of equal protection of the laws. The basis asserted for this claim is that no other judgment debtors are subjected to the possibility of criminal prosecution for failing to pay a judgment debt. This contention also depends on the false premise that § 559.353 seeks to enforce a debt. It does not. Rather, as previously indicated, it provides punishment for the father or mother who violates the criminal statute by abandoning or failing to support his or her child without good cause. Since this is not a prosecution for debt, but rather is one for violation of a duty to look after and provide for one's minor children, it does not result in a denial of equal protection as between debtors.

Next, defendant urges unconstitutionality of the statute on the basis that it is so vague and indefinite as to result in deprivation of due process and a denial of equal protection. This argument is based on the proposition that the statute speaks of 'adequate' support and of 'good cause' for failing to support without defining those terms or establishing standards for their determination. Consequently, says defendant, a parent cannot ascertain just what is prohibited or when one is excused for good cause.

In State v. Arnett, supra, the constitutionality of § 559.350, RSMo 1959, V.A.M.S., the predecessor of § 559.353, was not passed upon by the Court of Appeals, but the court did discuss the meaning of the term 'adequate' in considering whether the evidence was sufficient to sustain the conviction therein. In that connection, the court said, 370 S.W.2d l.c. 173:

'Some of the common definitions of 'adequate' are 'commensurate in fitness; sufficient; suitable' (Shorter Oxford English Dictionary); 'equal to or sufficient for some specific requirement; proportionate, or correspondent; fully sufficient; legally sufficient, such as is lawfully and reasonably sufficient' (Webster's New International Dictionary, Second Edition); 'equal to what is required; suitable to the case or occasion; fully sufficient; proportionate, as an adequate supply of food' (Funk & Wagnalls New Standard Dictionary of the English Language).

'In those cases which have had occasion to construe the similar statutes it has been held that adequate support means personal support, maintenance, food, clothing, et cetera, reasonably suitable to the condition in life and commensurate with the defendant's ability. State v. Clark, 234 N.C. 192, 66 S.E.2d 669; Szilagyi v. Szilagyi, 170 Misc. 1009, 11 N.Y.S.2d 469, 472; People v. Rogers, Co.Ct., 37 N.Y.S.2d 254; 2 Words and Phrases, 'Adequate' p. 544; and 'Adequate Support' p. 583.'

We conclude that the above is a fair interpretation of the meaning of the term 'adequate.' The word is frequently used. An example is the phrase 'adequate remedy at law.' 1 C.J.S. p. 1462. It has a...