State v. Reuter, 83-429

• Decision Date: 27 January 1984
• Docket Number: No. 83-429,83-429
• Citation: 216 Neb. 325,343 N.W.2d 907
• Parties: STATE of Nebraska, Appellee, v. Ronald E. REUTER, Appellant.
• Court: Nebraska Supreme Court

Page 907

343 N.W.2d 907

216 Neb. 325

STATE of Nebraska, Appellee, v. Ronald E. REUTER, Appellant.

No. 83-429.

Supreme Court of Nebraska.

Jan. 27, 1984.

Richard L. Kuhlman, Fremont, for appellant.

Paul L. Douglas, Atty. Gen., and Royce N. Harper, Asst. Atty. Gen., Lincoln, for appellee.

Syllabus by the Court

1. Child Support. The remarriage of a father does not relieve him of child support obligations fixed by a divorce decree.

2. Judgments: Collateral Attack: Jurisdiction. A judgment is not subject to collateral attack unless that attack rests upon a lack of jurisdiction over the parties or of the subject matter.

3. Indictments and Informations. The office of an information is to inform the accused, with reasonable certainty, of

the charge being made against him in order that he may prepare his defense thereto and be able to plead the judgment rendered thereon as a bar to a later prosecution for the same crime.

4. Constitutional Law: Child Support: Fraud. Article I, § 20, of the Nebraska Constitution, which provides that one shall not be imprisoned for debt in any civil action on mesne or final process, unless in cases of fraud, does not prohibit the imprisonment of one who refuses to obey a court order to support his children.

5. Constitutional Law: Child Support: Sentences. A sentence of imprisonment for the failure to support one's children as ordered by a court does not violate the eighth amendment to the U.S. Constitution and article I, § 9, of the Nebraska Constitution, both of which prohibit the infliction of "cruel and unusual" punishment.

6. Sentences: Appeal and Error. A sentence will not be set aside if it is within statutory limits unless there was an abuse of discretion by the trial court.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

Following a bench trial, defendant-appellant, Ronald E. Reuter, was adjudged guilty of intentionally failing, refusing, or neglecting to support his four minor children in violation of a court order. He was sentenced to imprisonment for a term of 1 year. This appeal followed. We affirm.

On October 3, 1977, the district court for Saunders County entered a decree which found that the court had jurisdiction of the parties and of the subject matter, that defendant was in default, that defendant and Beverly J. Reuter were married on September 28, 1968, and that they had produced four children. The decree dissolved the marriage and ordered defendant to "pay child support, through the Clerk of the District Court of Saunders County, Nebraska, the sum of $20.00 per week, per child, a total of $80.00 per week."

Since the entry of that decree, defendant moved to Oklahoma, where he was employed as a truckdriver. A URESA action was commenced in Dodge County in 1979 and was referred to the Oklahoma authorities. Defendant had made no child support payments prior to that action. After the URESA order was entered, Dodge County and the State of Nebraska, which have regularly made payments under the aid to families with dependent children program since 1981 and at times prior to that, received reimbursement in the sums of $700 in 1979, $2,000 in 1980, $2,052 in 1981, and $400 in 1982. No payments were received in 1983, although a prospective $1,848 federal income tax refund due defendant has been intercepted by the Nebraska Department of Social Services. Public funds in excess of $13,000 have been expended since 1980 in payments under the aid to families with dependent children program.

On March 19, 1983, defendant arrived in Fremont to visit his children as he was passing through town in the course of his employment as a truckdriver. He was later arrested and charged with the crime which is the subject matter of this appeal.

The assignments of error which defendant argues present the following issues: (1) Is the evidence sufficient to support the conviction? (2) Did the information contain prejudicial statements? (3) Does the sentence constitute an unconstitutional imprisonment for debt? and (4) Is the sentence disproportionate, and thus cruel and unusual?

Neb.Rev.Stat. § 28-706 (Reissue 1979), the statute under which defendant was charged, reads in pertinent part as follows: "(1) Any person who intentionally fails, refuses, or neglects to provide proper support which he knows or reasonably should know he is legally obliged to provide to a spouse, minor child, minor stepchild, or other dependent, commits criminal nonsupport * * *

"(6) Criminal nonsupport is a Class IV felony if it is in violation of any order of any court." A Class IV felony is punishable by a maximum 5 years' imprisonment, or a $10,000 fine, or both such imprisonment and fine. There is no minimum penalty. Neb.Rev.Stat. § 28-105 (Reissue 1979).

In his attack on the sufficiency of the evidence, defendant makes three arguments. The first is that he has no legal obligation to support the children. His claim is that since he and his wife were not legally married, his children were born out of lawful wedlock, and since no paternity action was brought within 4 years of the children's births, as required by Neb.Rev.Stat. § 13-111 (Reissue 1977), his obligation is a moral one only.

Defendant does not dispute the fact that the children are his; in fact, he acknowledges that they are. Whatever the impact of the 4-year statute of limitations to which he refers may be, it in no way limits the liability of a father to support his acknowledged children born out of lawful wedlock. The liability of a father to such children is the same as that of a father of children born in lawful wedlock. Neb.Rev.Stat. § 13-102 (Reissue 1977).

The second argument defendant makes concerning the sufficiency of the evidence is that it does not show he was able to support his children on March 1, 1983, as was charged by the information, and that absent some showing he was capable of supporting his children, it could not be found that he intentionally failed, refused, or neglected to provide such support.

The evidence establishes that defendant was capable of working, was employed, and earned at least $1,000 per month. In support of defendant's argument that his ability to support his children was not established, he claims that his debts exceeded his income. He lists among his debts the sum of $329 due each month as payment on two motor vehicles. The support of one's children is a fundamental obligation which takes precedence over almost everything else and certainly over the acquisition of vehicles. Nor are we persuaded by defendant's lamentations that he has incurred hospital expenses on behalf of his current wife and the child he and she have produced. Taking on a second set of obligations does not forgive fulfillment of the first set. See, Shipley v. Shipley, 175 Neb. 119, 120 N.W.2d 582 (1963), and Phillips v. Phillips, 162 Neb. 649, 77 N.W.2d 152 (1956), stating that the remarriage of a father does not relieve him of child support obligations fixed by a divorce decree.

Defendant's last attack on the sufficiency of the evidence rests on the claim that the divorce decree and support order were void, since he and the children's mother were never legally married. The difficulty with that position, from his point of view, is that a judgment is not subject to collateral attack unless that attack rests upon a lack of jurisdiction over the parties or of the subject matter. Schilke v. School Dist. No. 107, 207 Neb. 448, 299 N.W.2d 527 (1980). His reliance upon Garrett v. State, 118 Neb. 373, 224 N.W. 860 (1929), for the proposition that the decree of dissolution is subject to collateral attack in this case is misplaced. In Garrett the trial court undertook to hear the divorce case within 6 months, in spite of a statute which provided that " 'no suit for divorce shall be heard or tried for a period of six (6) months after service has been had or...