State v. Kirkland

• Decision Date: 18 September 1992
• Docket Number: No. 66981,66981
• Citation: 837 P.2d 846,17 Kan.App.2d 425
• Parties: STATE of Kansas, Appellee, v. Bradley N. KIRKLAND, Appellant.
• Court: Kansas Court of Appeals

Page 846

837 P.2d 846

17 Kan.App.2d 425

STATE of Kansas, Appellee, v. Bradley N. KIRKLAND, Appellant.

No. 66981.

Court of Appeals of Kansas.

Sept. 18, 1992.

Review Denied Nov. 12, 1992.

Syllabus by the Court

1. The legislative intent of K.S.A.1991 Supp. 21-3605(1)(a) is to require support for necessitous children and the statute holds criminally liable those parents who fail to do so.

2. A statute will not be declared void for vagueness and uncertainty where it employs words commonly used, previously judicially defined, or having a settled meaning in law.

3. The phrase "without lawful excuse" in K.S.A.1991 Supp. 21-3605(1)(a) is the equivalent to "without just cause."

4. The phrase "without lawful excuse" in K.S.A.1991 Supp. 21-3605(1)(a) is not unconstitutionally vague and indefinite.

5. A parent's obligation to pay child support is not suspended or terminated because the obligor parent has been refused visitation with the child by the custodial parent. Lack of visitation does not justify noncompliance with K.S.A.1991 Supp. 21-3605(1)(a).

Joseph L. Dioszeghy, Overland Park, for appellant.

Roger A. Nordeen, Asst. Dist. Atty., Paul J. Morrison, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before ELLIOTT, P.J., LARSON, J., and DANIEL L. BREWSTER, District Judge, Assigned.

LARSON, Judge:

Bradley N. Kirkland appeals his jury conviction of nonsupport of a child, contending (1) K.S.A.1991 Supp. 21-3605(1)(a) is unconstitutionally vague and indefinite; (2) he was denied a fair trial because the trial judge instructed the jury that "[t]he unavailability of a child for visitation does not suspend the obligation of a party ordered to pay support;" and (3) the complaint upon which his conviction is based is fatally defective on its face.

A romance between Kirkland and Valerie Dvorak, now Valerie Minnich, resulted in the birth of L.R.D. in November of 1987. Kirkland was involved in the birthing process and has acknowledged he is the father of the child.

In March of 1988, the parties agreed upon a court order that set forth Kirkland's paternity of L.R.D. and ordered him to pay $400 per month child support. Visitation was not ordered.

Kirkland and Minnich became engaged, but separated in mid-1988 when Minnich went to Texas to assist in the care of her ill father.

In late December of 1988, a conversation occurred between the parties concerning Kirkland's relationship with Minnich and L.R.D. Minnich testified she told Kirkland she wanted to forget everything that had ever happened between them, but he was always welcome to see L.R.D. and should continue paying child support. Kirkland recalled Minnich requesting that he never see L.R.D. again, not pay any more child support, and not have any form of contact with either of them.

In January 1989, Minnich moved out of her apartment in Olathe and subsequently occupied different residences in Kansas and Texas. Kirkland claims to have made unsuccessful attempts to contact her, while Minnich testified that her whereabouts were capable of being determined through relatives and friends. Kirkland made no child support payments between January and October of 1989 and was charged with criminal nonsupport of a child in violation of K.S.A. 1991 Supp. 21-3605(1).

Evidence at the jury trial showed Kirkland had earned income both from regular employment and as a free-lance artist during the time period in question. Evidence was also presented concerning L.R.D.'s expenses, Kirkland's expenses, that Kirkland was under court order to make child support payments, and that he made no child support payments during that time period. Kirkland justified his nonpayment on the grounds that Minnich had prevented him from seeing L.R.D. and claimed that because he was prevented from enjoying visitation he should not be obligated to pay child support.

Over Kirkland's objection, the trial judge issued instruction No. 9 to the jury: "The unavailability of a child for visitation does not suspend the obligation of a party ordered to pay support." The trial judge based the instruction on K.S.A.1990 Supp. 60-1612(a).

Kirkland was found guilty. Following the denial of his motion for new trial, he was sentenced to a term of one to three years. Kirkland appeals. We affirm.

Is K.S.A.1991 Supp. 21-3605(1)(a) unconstitutionally vague

and indefinite?

K.S.A.1991 Supp. 21-3605(1)(a) states: "Nonsupport of a child is a parent's failure, neglect or refusal without lawful excuse to provide for the support and maintenance of the parent's child in necessitous circumstances."

Kirkland contends the phrase "without lawful excuse" is unconstitutionally vague and indefinite. He argues the phrase is not commonly understood and has not been judicially defined, and because it does not have a well-settled legal meaning, a trial judge is allowed to decide without any fixed standard what conduct is prohibited in a particular case.

Although Kirkland complained at the trial court level that the term "without lawful excuse" was improperly defined as meaning "without just cause," he failed to specifically object to the constitutionality of the statute.

It is our general rule that when constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review. State v. Goss, 245 Kan. 189, 193, 777 P.2d 781 (1989).

Exceptions to the foregoing rule exist and we have held that:

"[I]f a newly asserted issue involves only a legal question arising on proved or admitted facts which will be finally determinative of the case, or if consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights, an appellate court may consider the issue even though not considered by the trial court." State v. Anderson, 12 Kan.App.2d 342, Syl. p 1, 744 P.2d 143 (1987).

Furthermore " 'The constitutionality of a statute should be considered in any action where it is necessary in order to determine the merits of the action or where the issues cannot be intelligently decided without doing so, notwithstanding the failure of the parties to raise the constitutional question, failure to plead the question, or failure to present the question to the trial court.' " Van Sickle v. Shanahan, 212 Kan. 426, 434, 511 P.2d 223 (1973) (quoting State v. Nelson, 210 Kan. 439, 502 P.2d 841 [1972].

We deem it appropriate to address this issue, subject to the following rule:

"An appellate court adheres to the proposition that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. [Citation omitted.]" Guillan v. Watts, 249 Kan. 606, 618, 822 P.2d 582 (1991).

State ex rel. Murray v. Palmgren, 231 Kan. 524, 532, 646 P.2d 1091 (1982), reh. denied 459 U.S. 1229, 103 S.Ct. 1238, 75 L.Ed.2d 471 (1983), sets forth the rules regarding vagueness:

" 'The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. At its heart the test for vagueness is a commonsense determination of fundamental fairness.' [Citation omitted.]"

In State v. Lackey, 232 Kan. 478, 479, 657 P.2d 40 (1983), our Supreme Court stated:

" 'It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.' [Citation omitted.]"

Guillan v. Watts sets forth our obligation in this manner: "In determining whether a statute is void for vagueness, two inquiries are appropriate: (1) whether the statute gives fair warning to those persons potentially subject to it, and (2) whether the statute adequately guards against arbitrary and discriminatory enforcement." 249 Kan. at 618, 822 P.2d 582.

In Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 663, 562 P.2d 65, modified, 221 Kan. 752, 564 P.2d 1280 (1977), Justice Schroeder adopted the language of Unified School District No. 255 v. Unified School District No. 254, 204 Kan. 282, 288, 463 P.2d 499 (1969): " 'A statute will not be declared void for vagueness and uncertainty where it employs words commonly used, previously judicially defined, or having a settled meaning in law.' "

Although the rule is normally stated that criminal statutes must be strictly construed, our Supreme Court has stated that the Desertion Act, L.1911, ch. 163, § 1, upon which K.S.A.1991 Supp. 21-3605 is based, is remedial in purpose even though it provides for the infliction of a severe penalty; because its object is to insure the observance of a high, moral, and social duty, it must be liberally construed in order that the legislative intent may be accomplished. State v. Waller, 90 Kan. 829, 836, 136 P. 215 (1913). The legislative intent of K.S.A.1991 Supp. 21-3605(1)(a) is to provide support for necessitous children and in this endeavor the statute holds criminally liable those parents who fail to provide support. State v. Rupert, 247 Kan. 512, 516, 802 P.2d 511 (1990).

In State v. Wohlfort, 123 Kan. 62, 67, 254 P. 317 (1927), the defendant was convicted under...