Wilcox v. State
| Decision Date | 24 April 1996 |
| Docket Number | No. 32A01-9502-CR-57,32A01-9502-CR-57 |
| Citation | 664 N.E.2d 379 |
| Parties | Scott D. WILCOX, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Appeal from the Hendricks Circuit Court, Jeffrey V. Boles, Judge; Cause No. 32C01-9406-CF-120.
Paula M. Sauer, Danville, for Appellant.
Pamela Carter, Attorney General of Indiana, Jodi Kathryn Rowe, Deputy Attorney General, Indianapolis, for Appellee.
Scott D. Wilcox appeals from his conviction for Nonsupport of a Dependent, a Class D felony, following a jury trial. The trial court imposed a three year suspended sentence and placed Wilcox on probation.
We affirm in part, reverse in part and remand.
Wilcox presents three issues for our review which we restate as follows:
1. Whether the doctrine of collateral estoppel barred relitigation of Wilcox's ability to pay child support.
2. Whether the trial court erred when it denied Wilcox's motion for judgment on the evidence.
3. Whether the trial court erred when it sentenced Wilcox.
The facts most favorable to the verdict show that Kay Henderson and Wilcox were married and had one daughter, Ashley. In 1985, Henderson and Wilcox separated and they were divorced in 1987. The parties' settlement agreement provided that Ashley was to live with Henderson, and Wilcox was to pay $275.00 per week in child support. Wilcox moved to Florida while Henderson and Ashley lived together in Plainfield, Indiana.
On November 4, 1993, the Federal Trade Commission ("FTC") obtained a Preliminary Injunction against Wilcox in the United States District Court for the Southern District of Florida which froze all of his assets. Immediately thereafter, Wilcox became delinquent in his child support payments.
Henderson filed a petition in the Marion Superior Court to hold Wilcox in contempt of court for his failure to pay child support. Following a hearing, the court denied Henderson's petition. The court found that although Wilcox failed to pay support from November of 1993 through January 25, 1994, Wilcox was not in contempt of court because he did not have the financial ability to meet his support obligations due to the FTC injunction. Henderson filed a motion to intervene and an emergency motion to modify the preliminary injunction in the United States District Court to permit payment of child support. She obtained such relief from the federal court in September of 1994.
Then, in June of 1994, the State filed criminal charges against Wilcox for nonsupport of a dependent from November of 1993 through June 17, 1994. After a jury trial in October of 1994, Wilcox was convicted of nonsupport of a dependent and was subsequently sentenced to serve three years, all of which was suspended.
Wilcox contends that an issue determined in a civil adjudication can serve as a defensive bar in a subsequent criminal proceeding. Specifically, Wilcox maintains that in the civil contempt proceeding he proved, by a preponderance of the evidence, his inability to pay child support and, thus, that he conclusively established the affirmative defense of inability to pay child support in the later criminal proceeding for nonsupport of a dependent child. We cannot agree.
Collateral estoppel operates to bar a subsequent relitigation of the same fact or issue where that fact or issue was necessarily adjudicated in a former suit and the same fact or issue is presented in the subsequent lawsuit. Tofany v. NBS Imaging Systems, Inc., 616 N.E.2d 1034, 1037 (Ind.1993); Connecticut Indem. Co. v. Bowman, 652 N.E.2d 880, 882 (Ind.Ct.App.1995), trans. denied. In that situation, the first adjudication will be held conclusive even if the second one is on a different claim. Tofany, 616 N.E.2d at 1037. Indiana no longer requires mutuality of estoppel and identity of parties in the defensive use of collateral estoppel. Connecticut Indem. Co., 652 N.E.2d at 882. 1 Issue preclusion requires a final judgment on the merits in a court of competent jurisdiction as well as identity of issues. See Hayworth v. Schilli Leasing, Inc., 644 N.E.2d 602, 604 (Ind.Ct.App.1994).
The trial court's decision to disallow the use of collateral estoppel will be reversed only upon a showing of an abuse of discretion. Id. The prime consideration with the defensive use of collateral estoppel is whether the party against whom the prior judgment is pled had a full and fair opportunity to litigate the issue and whether it would otherwise be unfair under the circumstances to permit the use of collateral estoppel. Sullivan v. American Cas. Co. of Reading, PA, 605 N.E.2d 134, 138 (Ind.1992).
Henderson filed civil contempt proceedings against Wilcox on November 23, 1993, alleging that Wilcox had failed to pay child support as ordered by the court. To hold a person in contempt for failure to pay child support, the court must find that the delinquency was the result of the willful failure by the parent to comply with the support order and that the delinquent parent has the financial ability to comply with the court order. Pettit v. Pettit, 626 N.E.2d 444, 447 (Ind.1993). The parent who has failed to comply with a child support order has the burden of proving, by a preponderance of the evidence, that the failure to comply was not willful or was otherwise excused. Ort v. Schage, 580 N.E.2d 335, 337 (Ind.Ct.App.1991). Here, at the conclusion of the contempt hearing, the court found that "Wilcox had failed to pay support" but that "he was not in contempt because he did not have the financial ability to meet his support obligations." Record at 75. The court determined that Wilcox's "personal assets had been seized by the federal government and he was unable to operate his various businesses." Record at 75.
In this case, Wilcox presents an issue of first impression, whether the doctrine of collateral estoppel bars relitigation of an issue determined in a civil action in a subsequent criminal proceeding. Issue preclusion may, under appropriate circumstances, be applied between judicial proceedings in four combinations: civil to civil, criminal to criminal, criminal to civil, and civil to criminal. See Turner v. Estate of Turner, 454 N.E.2d 1247, 1248-49 n. 2 (Ind.Ct.App.1983), (issue preclusion applies from criminal to civil proceeding when burden of proof identical), trans. denied.; Susan W. Brenner, "Crossing-Over:" The Issue-Preclusive Effects of a Civil/Criminal Adjudication Upon a Proceeding of the Opposite Character, 7 North.Ill.U.L.Rev. 141 (1987). Here, we consider the application of issue preclusion from a civil to a criminal adjudication.
Wilcox contends that the issue in both proceedings was whether he was financially able to provide support, and he correctly states that in both proceedings he had the burden of proving the issue by a preponderance of the evidence. However, we cannot agree that there was an identity of issues between the two proceedings. The issue decided by the court in the civil contempt proceeding was that Wilcox was unable to pay child support from November of 1993 through January of 1994. The issue which would have had preclusive effect for the later criminal proceeding was the determination that Wilcox was unable to provide support from November of 1993 through June of 1994.
Although Wilcox argues that the additional five month time period is inconsequential, that additional period of time supports the State's allegation that Wilcox wilfully and intentionally withheld child support. The record shows that Wilcox failed to obtain employment during that five month period and failed to seek relief from the preliminary injunction which froze his assets. Record at 428, 559, 562, 569-70. It was Henderson who petitioned for and obtained a release from the United States District Court of sufficient assets to provide child support. Record at 451.
Wilcox presented evidence of the asset freeze to the jury. Still, the jury concluded that Wilcox had intentionally refused to provide support for his child and, in effect, that his lack of payment did not result from his inability to pay. The additional five months of nonpayment could have been pivotal to that conclusion. We hold that the doctrine of collateral estoppel does not apply here because the issues between the two adjudications were not coextensive and the issue presented in the second action was not subsumed within the issue determined in the first adjudication. Thus, we need not determine whether, before issue preclusion can apply, the burdens of proof must be identical where a civil adjudication is followed by a criminal adjudication of the same issue. Neither must we decide whether it would be unfair here to bind the State to the prior civil adjudication.
Next, Wilcox contends that the trial court erred when it denied his motion for judgment on the evidence. We disa...
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