State v. Ducey

• Decision Date: 29 December 1970
• Citation: 25 Ohio App.2d 50,266 N.E.2d 233
• Parties: , 54 O.O.2d 80 The STATE of Ohio, Appellee, v. DUCEY, Appellant.
• Court: Ohio Court of Appeals

Page 50

25 Ohio App.2d 50

266 N.E.2d 233, 54 O.O.2d 80

The STATE of Ohio, Appellee, v. DUCEY, Appellant.

Court of Appeals of Ohio, Tenth District, Franklin County.

Dec. 29, 1970.

Syllabus by the Court

1. Imprisonment imposed for a violation of R.C. 2151.42, making it an offense for a person charged with the care, support, maintenance, or education of a child to fail to do so, is not imprisonment for debt and, therefore, R.C. 2151.42 and R.C. 2151.99 are not in violation of Section 15, Article I, Ohio Constitution, prohibiting imprisonment for debt.

2. Inability to provide support is a proper defense in an action brought pursuant to the provisions of R.C. 2151.42.

3. Only that class of persons capable of paying support money, but failing to do so, may be prosecuted under R.C. 2151.42 and R.C. 2151.99. These sections are not violative of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.

C. Howard Johnson, Pros. Atty., Victor E. Vaile, Jr., and David H. Bodiker, Columbus, for appellee.

Cunningham, Burns & Gibbs, Columbus, for appellant.

HOLMES, Judge.

The appellant, Walter D. Ducey, appeals his conviction of violation of R.C. 2151.42 which provides for the care, support, maintenance, and education of children, and makes the failure, neglect, or refusal to do so an offense, with penalties of fine and imprisonment.

On April 10, 1970, an affidavit was filed with the Clerk of the Domestic Relations Court by the Franklin County Child Services Bureau charging appellant with failing to support Walter Ducey, Jr., from April 11, 1969, to April 10, 1970. The appellant entered a plea of not guilty, and subsequently was found guilty by the court on April 21, 1970.

In this appeal to this court, appellant asserts that R.C. 2151.99, the penalty section relating to R.C. 2151.42, is unconstitutional in that it provides for imprisonment for failure to pay a debt in contravention of Section 15, Article I of the Constitution of the state of Ohio, and secondly that R.C. 2151.42 and 2151.99 deny the appellant equal protection under the law in contravention of the Fourteenth Amendment of the Constitution of the United States.

The sections of the Ohio Revised Code that are involved in this appeal are as follows:

R.C. 2151.42 states:

'No person charged with the care, support, maintenance, or education of a legitimate or illegitimate child or no person being the father of an illegitimate child under eighteen years of age shall fail to care for, support, maintain, or educate such child, or shall abandon such child, or shall beat, neglect, injure, or otherwise illtreat such child, or cause or allow him to engage in common begging. No person charged with the care, support, maintenance, or education of a legitimate or illegitimate child under twenty-one years of age who is physically or mentally handicapped shall fail to care for, support, maintain, or educate such child. Such neglect, nonsupport, or abandonment shall be deemed to have been committed in the county in which such child may be at the time of such neglect, nonsupport, or abandonment. Each day of such failure, neglect, or refusal shall constitute a separate offense.'

R.C. 2151.99 sets forth the penalties for violation of R.C. 2151.42 and reads in part:

'(B) Whoever violates section 2151.42 of the Revised Code shall be fined not more than five hundred dollars or imprisoned not more than one year, or both. The juvenile judge may order that such person stand committed until such fines and costs are paid; provided that if he pays promptly to the juvenile court each week or to a trustee named by such court a sum to be fixed by its for such purpose, sentence may be suspended.'

The basic proposition of the appellant is to the effect that R.C. 2151.42, and the penalty section provided therefor violate his rights under Article I, Section 15 of the Constitution of the state of Ohio.

Section 15, Article I of the Ohio Constitution is as follows:

'No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.'

I

At the outset it might be well to restate the known and accepted by setting forth the general principles regarding the duty of parents to support their children as found in 41 Ohio Jurisprudence 2d, Parent and Child, Section 29:

'The natural duty of parents to provide their children with suitable shelter, food, and clothing until they are able to support themselves is injoined by both the statutes and the common law of Ohio, and public policy requires that parents fulfill this duty.'

This state policy has been expressed in very certain terms in a number of sections providing for criminal liability on the part of parents for neglecting or failing to support their minor children.

In addition to the criminal liability of a parent for a misdemeanor under the provisions of R.C. 2151.42 of the juvenile court chapter, criminal responsibility is provided in R.C. 2903.08 which makes the nonsupport neglect of a child under the age of 16 years a misdemeanor with regard to the provision of necessary and proper food, clothing, or shelter.

Yet another statute, R.C. 3113.01 and its accompanying penalty provision, R.C. 3113.99, makes it a felony for any parent, or other person charged with the maintenance of a child under 18 years of age to fail to provide such child with the necessary or proper home, care, food, and clothing. Such sections are to be found in the chapter dealing with the neglect and abandonment of dependents.

Also, R.C. 3113.06 makes it an offense, punishable by imprisonment in a jail, workhouse, or the penitentiary, for a father or mother when they are charged with the maintenance of a child under 18 years of age who is legally a ward of a county child welfare board or a county department of welfare, to neglect or to refuse to pay such board or department the reasonable cost of maintaining such child when such father or mother is able to do so. See 41 Ohio Jurisprudence 2d, Parent and Child, Section 67.

Although there appear to be no reported cases concerned specifically with the question of the constitutionality of R.C. 2151.42 and the penalty section thereunder, i. e., R.C. 2151.99, which provides for fine and imprisonment, there are reported cases upholding the authority generally of courts to issue citations in contempt to those violating the orders of courts of domestic relations relating to the payment of support money for children.

These case upholding the contempt authority of courts of domestic relations, including the right to order the confinement of the one found to be in contempt, uniformly take the position that such a claim for support money is not a debt within the constitutional guaranty against imprisonment for debt.

In point, the Supreme Court in State ex rel. Cook v. Cook (1902), 66 Ohio St. 566, 64 N.E. 567, held in the second paragraph of the syllabus as follows:

'A final money decree for alimony is not a debt within the purview of the constitutional inhibition against imprisonment for debt, but is such an order as that, under favor of section 5640, Rev.St., punishment as for a contempt may follow a willful failure to comply with it.'

In like manner, the first paragraph of the syllabus of Slawski v. Slawski (1934), 49 Ohio App. 100, 195 N.E. 258, is as follows:

'A decree in a divorce action, ordering the payment of money for the support of a minor child, is not a judgment for the payment of money nor is it a debt within the constitutional inhibition against imprisonment for debt, but is in the nature of an order for the payment of alimony, and contempt will lie for willful failure to comply with its terms.'

A 'debt' as defined in Black's Law Dictionary, third editions, is 'an unconditional promise to pay a fixed sum at a specified time.'

Further, a 'debt' is a specified sum of money owing to one person from another, including not only the obligation of the debtor to pay, but the right of the creditor to receive and enforce payment.

On the other hand, the obligation to support one's own children is one owned to the public generally.

This proposition of law and morality was set forth in very appropriate prose in the old case of Hand v. Hand (1891), 11 Dec.Rep. 202, where the Hamilton County Court of Common Pleas, speaking through Judge Bates, stated:

'* * * Debts are owing to individuals, and they alone they a recognizable interest in them; but the duty to support a child is an obligation owing by the parent to the public or body politic generally, and enforcible by the latter, as witness the statutes punishing a parent's abandonment and neglect of children by fine or workhouse sentence, * * *'

Speaking further as to the differences between a 'debt' and the continuing duty to support one's children, Judge Bates continues:

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