In January 2017, I posted a blog article discussed December 23, 2016, in the case of State v. Pittman, 2014-Ohio-5001, in which the Ohio Supreme Court held that a person could not be criminally prosecuted for failing to make the payments set forth in an arrearage-only order issued after the date of his children’s emancipation. The reason behind the decision was that the Nonsupport of Dependents statute, RC 2919.21(B), stated: “No person shall abandon, or fail to provide support as established by a court order to, another person whom, by court order or decree, the person is legally obligated to support.” In determining the intent behind the statute, the Court focused on the word “is” to show the meaning, stating “RC 2919.21(B) is ambiguous. It criminalizes a person’s failure to support – in the matter established by a court order – another person whom he is legally obligated to support. Because the statute uses the present tense in the phrase ‘is legally obligated to support,’ a person charged with a violation must be under a current obligation to provide support.”
Thus, based on Pittman, a person who had a minor child and failed to pay a minimum $50 per month child support order and was $1,000 in arrears could be criminal prosecuted, while a person who had an adult child and no current child support order, but was $100,000 in arrears could not be prosecuted.
To address this seemingly unfair distinction, the Ohio Legislature elected to amend the statute. Therefore, starting on February 11, 2019, RC 2919.21 has been amended to include the following language:
(B)(1) No person shall abandon, or fail to provide support as established by a court order to, another person whom, by court order or decree, the person:
(a) Is legally obligated to support; or
(b) Was legally obligated to support, and an amount for support:
(i) Was due and owing prior to the date the person’s duty to pay current support
(ii) Remains unpaid.
Keep in mind, that there is a 6-year statute of limitations on this offense, so this statute does not permit the prosecution of a person who owes a big arrearage in a case in which the child was emancipated many, many years ago. Section (B) states that “[t]he period of limitation under section 2901.13 of the Revised Code applicable to division (B)(1)(b) of this section shall begin to run on the date the person’s duty to pay current support terminates.” In other words, the State has 6 years from the date the child is emancipated to file criminal charges.
Of course, with any new statute or amendment, one could expect differences in opinion as to the interpretation of the statute. One obvious concern would be both the United States and Ohio Constitutions’ prohibitions against ex-post facto laws. Such laws are ones that retroactively criminalize actions that were committed before the enactment of the law. In this case, prior to the effective date of the statute on February 11, 2019, is was not a crime to fail to make payments in an arrearage-only case. The big question is after this amendment goes into effect, will the State of Ohio attempt to prosecute individuals under this statute immediately for periods occurring before the effective date or will the State show some restraint and wait for a period of nonpayment to occur following the effective date.
In my opinion, the ex-post facto issue would prevent prosecution for periods of nonpayment occurring before the effective date of the statute. If the State does show restraint and elects to only prosecute cases with periods of nonpayment beyond the effective date, then the State’s scope of prosecution will be limited by the 6-year statute of limitations, which as stated previously, expires 6 years from the date the child becomes emancipated.
Nevertheless, the nonpayment of child support is a serious matter that can have serious consequences. If you or someone you know is being prosecuted for this offense, contact Criminal Defense Attorney Jonathan Horwitz, at Horwitz & Horwitz, LLC, located in Centerville, Ohio and serving clients throughout Southwest Ohio.