State v. Rome
| Decision Date | 23 May 1988 |
| Docket Number | No. 15924,15924 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Anthony ROME, Sr., Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
R. Shawn Tornow, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.
Steve Miller, Sioux Falls, for defendant and appellant.
Defendant and appellant, Anthony Rome, Sr. (Anthony), appeals from his trial court conviction of felony nonsupport of a minor child. We reverse and remand.
On October 19, 1986, Anthony exercised visitation rights with his minor son, Anthony Rome, Jr. (Son), as authorized by court order pursuant to a prior divorce proceeding. Anthony did not return Son to the home of his mother, who had legal custody and care. Instead, Anthony left the State of South Dakota with Son. Anthony was apprehended in or near Cleveland, Ohio, in mid-January, 1987, was returned to South Dakota and convicted of felony child-napping. See companion case, State v. Rome, 426 N.W.2d 19 (S.D.1988). During the time the minor child was with Anthony, Anthony did not make court-ordered child support payments.
At trial of the matter herein, Anthony admitted that he had not made the ordered child support payments while Son was in his custody and care and stipulated that he was absent from South Dakota during the thirty days prior to and including December 23, 1986. However, Anthony testified that while the child was in his care and custody he provided food, clothes, school tuition, day care, etc. Anthony further testified that when he brought the child back he came with two suitcases full of clothing. This testimony was undisputed.
At the outset, there is a dispute as to the definition of the proper issue in this case. Anthony frames the issue as:
Does the evidence support this conviction, as to the element of "necessary" support of the child, when the evidence shows conclusively that the child was completely and exclusively supported by [Anthony] during the period alleged in the information?
Or, stated another way, that State failed to meet its burden of proof as to all essential elements of the crime. State, on the other hand, frames the issue:
Whether child kidnapping is a defense to felony nonsupport of a child?
Or, stated another way, public policy should not permit Anthony to avoid payment of required support by taking the extrajudicial method of child-napping. From our reading of the statutes involved, we are of the opinion that State is in error in its application of the pertinent statutes to the facts of this case.
The resolution as to the proper issue in this case lies in the interpretation of SDCL 25-7-16 and SDCL 25-7-19.
SDCL 25-7-16 provides, in pertinent part:
A parent of a minor child who intentionally omits without lawful excuse to furnish necessary food, clothing, shelter, medical attendance or other remedial care or other means of support for his child is guilty of a Class 1 misdemeanor. If a parent, during a violation, leaves the state and is absent for more than thirty days, he is guilty of a Class 6 felony....
By the plain reading of the statute, the elements of the offense of felony nonsupport of a child are:
(3) to furnish necessary food, clothing, shelter, medical attendance or other remedial care, or
(4) other means of support, and
(5) is absent from the state for more than thirty days.
SDCL 25-7-19 provides, in pertinent, part:
The provisions of Secs. 25-7-16 to 25-7-20, inclusive, are applicable whether the parents of such child are married or divorced, and regardless of any decree made in any divorce action relative to alimony or to the support of the child....
State, in its brief, concedes that SDCL 25-7-19 was drafted with the intent of benefiting the State, and argues further, that State may prosecute an individual if he/she is providing the required child support payments, but those payments prove, in fact, to be insufficient to support the minor child. With the first statement we are in agreement and we need not reach the second assertion in this case, but we mention it only to emphasize that, indeed, there appears to be no direct relationship between the payment of child support under a decree emanating from the civil side of the courts and the provision of necessary support as mandated by the statute.
A general overview of SDCL ch. 25 reveals that the purpose of the chapter dealing with support obligations was not for the purpose of punishment of neglectful parents, but rather, to secure support of the child and to protect the public from the burden of supporting a child who has a parent able to support him. For instance, SDCL 25-7-14 provides for reimbursement to the county from a deceased parent's estate, when the county has provided for the child. Also, SDCL 25-7-20.1 provides that State may pursue a responsible party when State has provided support or aid to any person. A careful reading of this chapter will reveal that the purpose of the provisions is not to aid a destitute person, or even to...
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