Court ruling hobbles prosecution for unpaid child support

A Rochester man who ignored years of demands to pay child support for his two kids cannot be punished because there is no proof he didn't otherwise care for them, the Minnesota Supreme Court ruled Wednesday.

One justice who dissented from the 4-3 decision said the ruling could leave Minnesota, at least until the law is changed, as the only state that does not hold deadbeat parents criminally accountable for unpaid child support.

Larry Nelson owed $83,470 for 11 years of child support for his two children, now adults, when he was convicted of a felony three years ago under a state law that makes the failure to provide "care and support" a crime. Nelson maintained that while he did not pay child support, the state didn't prove that he had failed to "care" for his children. Prosecutors countered that the phrase "care and support" refers solely to financial obligations.

A majority of the Supreme Court sided with Nelson, reasoning that the law was unclear.

"It is odd to imply … that the word 'support' alone refers to a monetary obligation and that the phrase 'care and support' means the same thing," Justice David Stras wrote for the majority.

Justice David Lillehaug wrote in his dissent that the ruling "handcuffs" the state in prosecuting others who flout court orders to support their kids.

"It is possible that, as a result of the majority's holding and in the absence of swift legislative correction, Minnesota could become the only state without viable criminal sanctions for failure to pay child support," he wrote.

"I think the ball is back in the Legislature's hands, and I think we will take a good look at it this spring," said Latz, a criminal defense attorney and former prosecutor. "We certainly want to have the capability for our prosecutors to bring felony charges against someone who has failed to pay their financial obligations … If we need to clean up the statute to make sure that it is an available criminal charge that can be successfully prosecuted, then we'll find a way to do that, I expect."

Rep. Tim Mahoney, DFL-St. Paul, cautioned that child support laws require careful effort, which often takes time.

"The Supreme Court justice can say we need to do something and that's easy for a judge to say," Mahoney said, but such changes might be difficult in a short session.

Criminal prosecution for missed child support generally follows lengthy civil efforts, such as wage garnishment and contempt charges, said Olmsted County Attorney Mark Ostrem, whose office argued the case. He conceded that the wording of the law is ambiguous and that the high court's ruling could create serious difficulties for prosecutors.

"Even if you pick up your kid once from day care in the course of a month, then you provided care. That really just doesn't make sense," Ostrem said.

The changes that may be needed to the law could be found in the majority opinion, in which Justice David Stras offered an analogy.

"An everyday example will illustrate the point," Stras wrote. "When a person states, 'I am not free on Saturday and Sunday,' we often interpret the statement as 'I am not free on Saturday and I am not free on Sunday,' " he wrote, rather than Saturday or Sunday.

Nelson's interpretation that a parent must be found negligent of both support and care is "the more natural interpretation" of the law.

Latz said such ambiguity can slip through the cracks.

"Ultimately the Legislature is responsible and we do the best we can to be clear on our statutes, but sometimes experience or a legal test in court shows that we have to be a little more clear," he said.