State v. Francis

• Decision Date: 31 July 1928
• Citation: 269 P. 878,126 Or. 253
• Parties: STATE v. FRANCIS.
• Court: Oregon Supreme Court

269 P. 878

126 Or. 253

STATE v. FRANCIS.

Supreme Court of Oregon

July 31, 1928

Department 1.

Appeal from Circuit Court, Baker County;

C. H McColloch, Judge.

Oliver Francis was convicted of failing to support his minor children, and he appeals. Reversed.

A. A. Smith and A. S. Grant, both of Baker, for appellant.

Frank C. McColloch, of Baker, for the State.

ROSSMAN J.

The defendant was convicted in the circuit court of the crime of failing to support his two children, one 9 years of age, the other 7. He has appealed to this court.

In September, 1923, the mother of these children secured from the defendant a decree of divorce which awarded to her the custody of them, and ordered him to contribute towards their support the sum of $37.50 per month. The defendant admits that since the divorce he has contributed nothing, and that he has failed to visit them. At the time of the trial he was 33 years old and in good health. He is a graduate of a high school, and has attended the State Agricultural College and a Polytechnic school. The witnesses describe the father as an intelligent man, of good physique. July 12, 1924, he married again, and June 7, 1925, a child was born of this second marriage, which is living.

After the state had supplied evidence substantially to the above effect, except omitting the second marriage, it rested its case. The defendant thereupon moved for a directed verdict which the lower court denied; the defendant assigns this as error. Failure to support the children alone is not sufficient; to constitute the crime, the failure must be accompanied with circumstances that indicate it was without just or sufficient cause. See section 2166, O. L., as amended by 1927 Session Laws, c. 311; 1 Or. Law Supplement 1921-1927 § 2166. In State v. Dvoracek, 140 Iowa, 266, 118 N.W. 399, the court, in referring to the proof of those detailed facts which will justify a father in his failure to contribute toward the support of his children held, that--

"Knowledge of such good cause ordinarily is peculiarly within the keeping of the accused in such a case, and all required in behalf of the state is to make out a case from which the absence of good cause is reasonably to be inferred."

In State v. Goins, 122 S.C. 192, 115 S.E. 232, the court held that the trial court may properly exact of the defendant the first proof of those matters which will justify his failure after the state has shown his failure and the distress of his family. We believe that it is unnecessary for us to go that far in the case before us.

The facts of this case, when the state rested, disclosed a young man in the prime of life, in good health, bright of intellect, well educated, somewhat proficient as a high school athlete, and yet this young man, the evidence showed, had contributed not a cent towards the support of his two children in three years of time; nor had he displayed enough interest in them to visit them, although he resided in the same city in which they resided, and although their mother had demanded support from him. Since ordinarily a young man so richly endowed by an indulgent nature is able to support, in part at least, his family, the court properly held that the evidence submitted by the state constituted a prima facie case.

The defendant contends that section 2166, as amended by 1927 Session Laws, c. 311, being section 2166, Or. Law Supplement 1921 to 1927, which defines the crime of nonsupport, has no application to the father of a family who was separated from the mother by a decree of divorce. He contends that such a situation is intrusted solely to the divorce court. The section to which we have referred reads:

"Any person who, without just or sufficient cause, deserts or abandons his wife or who deserts or abandons his or her minor female child or children under the age of eighteen years or minor male child or children under the age of sixteen years, without providing necessary and proper shelter, food, care or clothing for her or any of them, or any person who without just or sufficient cause, shall fail or neglect to support his wife or minor female child or children under the age of eighteen years or minor male child or children under the age of sixteen years, shall be deemed guilty of a felony and shall be punished therefor by confinement in the state prison for not more than one year or by imprisonment in the county jail for not more than one year. If any person leaves the state and shall fail, for the period of sixty days, to provide necessary and proper shelter, food, care, or clothing for his wife and/or his or her children who come within this law it shall be prima facie evidence that such person deserted or abandoned his said wife and/or his or her children."

1921 Session Laws, c. 125, p. 238 (see Or. Law Supplement 1921-1927, p. 993), provides:

"That it shall be no defense against a charge of nonsupport of a child or children that the father has contracted a subsequent marriage or marriages, or that issue has been born of such subsequent marriage or marriages, or that such person is the father of issue born of any prior marriage."

Section 2167 provides that the court may accept a bond guaranteeing support of the children in lieu of sentencing the defendant to serve a penalty. We believe that it is apparent from the above that the Legislature was not concerning itself solely with a husband who failed to discharge his duty towards his children. The act repeatedly uses the disjunctive word "or" so as to include a father who fails to support his children, where father and mother are no longer husband and wife. The excerpt from 1921 Session Laws, which we have quoted above, clearly indicates that the Legislature intended the act to include divorced husbands.

The defendant argues that a father who contributes nothing towards the support of his children may be brought before the court that granted the divorce for its attention, and that the latter court may fix the amount to be paid for the support of the children; further that it may subsequently punish the delinquent father for a contempt in the event the payment is not forthcoming. Proceeding with his argument, he asks us to draw the conclusion that therefore the divorce court is fully equipped to deal with the situation, and that there can exist no just reason for conferring a similar jurisdiction upon the criminal courts. In concluding, he points out that, if both courts may deal with the father, the latter might find himself confronted with a situation where the divorce court would fix one amount as the proper sum to be contributed, while the criminal court might select a different sum, and that the individual could never be sure as to the precise contribution which would discharge his obligation.

Primarily the problem before us is one of statutory construction; for, if the legislative enactment includes divorced fathers as well as those who remain married to the mother of their children, we are without authority to decree otherwise. In passing, we may observe that the penalty for a contempt is not as severe as for the crime of failure to support; the latter is an extraditable crime, while it is doubtful whether extradition would return a father who is charged with contempt. These are practical matters which are deserving of consideration when we approach the problem now before us.

Although the question whether disobedience of a decree which orders a father to pay alimony constitutes a contempt for which the equity court may penalize has never been presented to this court, yet many of the circuit court judges have so assumed, and have applied the appropriate remedies in those instances where their decrees have been disregarded. This long observance of a general practice is persuasive.

It is true that in Rostel v. Morat, 19 Or. 181, 23 P. 900 this court said that a decree for the payment of money in probate proceedings cannot be enforced as for a contempt; as a premise for the conclusion thus announced, the decision cites the second sentence of what is now section 414, O. L. But the 1923 session of the Legislature has materially amended our laws so far as they pertain to the express matter now before us. 1923 Session Laws, c. 165, being 1 Or. Law Supplement 1921 to 1927, § 670, provides that a "disobedience of any lawful judgment, decree, order or process of the court, including judgments, orders, and decrees for the payment of suit money, alimony and attorney's fees pendente lite, or by final decree, in suits for dissolution of marriages" is included within contempts for which the court may punish. Or. Constitution, art. 1, subd. 19, provides: "There shall be no imprisonment for debt except in case of fraud or absconding debtors." The problem now presents itself, whether a sum fixed by a divorce court for the support of the children of a dissolved marriage constitutes a debt. If it does not, then the foregoing constitutional inhibition would not deprive the court of power to punish when the delinquent father neglects to make his payment. In Adams v. Adams, 80 N. J. Eq. 175, 83 A. 190, it is held that a constitutional provision prohibiting imprisonment for debt does not prevent the court from penalizing for a contempt one who neglects to pay alimony. This case is reported and extensively annotated in Ann. Cas. 1913E, 1083, wherein the editor makes the observation that the view expressed by the court "is in accord with the weight of authority; the authorities with few exceptions holding that general constitutional or statutory provisions against imprisonment for debt are not applicable to a case of imprisonment for failure to pay alimony, the theory usually being that the imprisonment is a punishment for contempt in disobeying the...