State v. Pittman (Slip Opinion) , 150 Ohio St. 3d 113 ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Pittman, Slip Opinion No. 2016-Ohio-8314.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-8314
THE STATE OF OHIO, APPELLANT, v. PITTMAN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Pittman, Slip Opinion No. 2016-Ohio-8314.]
Criminal law—R.C. 2919.21(B)—Failure to provide support pursuant to a court’s
order—No current obligation of support—A person is not subject to
prosecution under statute for the nonpayment of a court’s order to pay a
child-support arrearage when the person does not have a current obligation
of support because the child has been emancipated.
(No. 2015-0077—Submitted October 28, 2015—Decided December 23, 2016.)
CERTIFIED by the Court of Appeals for Marion County, No. 9-13-65,
2014-Ohio-5001.
_________________
PFEIFER, J.
{¶ 1} In this case, we hold that a person is not subject to prosecution under
R.C. 2919.21(B) for the nonpayment of a court’s order to pay a child-support
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arrearage when the person has no current obligation of support because the child
who is the subject of the order is emancipated.
Factual and Procedural Background
{¶ 2} In December 1988, the Marion County Common Pleas Court,
Juvenile Division, ordered appellee, Robert Pittman, to pay child support for his
two children, Sade and Sate Douglas, from January 6, 1989, until the children
attained the age of 18 years and completed their high school education or were
otherwise emancipated.
{¶ 3} On November 20, 2006, the Marion County Common Pleas Court,
Family Division, issued two judgment entries, one relating to Sade and the other
relating to Sate, stating that the children were emancipated as of August 31, 2006,
because they had turned 18 years old and were no longer in high school. One entry
declared that Pittman owed $34,313.45 in child support arrearages for Sade—
$33,730.14 to Alma Douglas, the children’s mother, and $583.31 to the Job &
Family Services of Marion County Child Support Division for ODJFS—and
granted each a judgment against Pittman in those respective amounts. The entry
stated that “all current child support shall cease effective 8/31/06,” but it ordered
Pittman to pay $236.17 plus a two-percent processing fee per month toward the
arrearages owed. The judgment entry relating to Sate was substantially the same.
{¶ 4} On December 6, 2007, the family court found Pittman in contempt for
failing to pay his arrearages and sentenced him to 30 days in jail with 25 days
suspended. Approximately 18 months later, the court denied a motion to impose
the prior sentence.
{¶ 5} Next came the criminal charges that are the focus of this case. The
state charged Pittman with nonsupport of his dependents in the Marion County
Court of Common Pleas. On July 9, 2009, an indictment was handed down against
Pittman containing nine counts related to his failure to pay the child support
previously ordered. Each count in the indictment addressed a specified two-year
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period—July 1, 2003, through June 30, 2005 (Counts 1, 2, 7, 8, and 9), July 1, 2005,
through June 30, 2007 (Counts 3 and 4), and July 1, 2007, through June 30, 2009
(Counts 5 and 6)—and alleged that during those periods, Pittman “did recklessly
abandon or fail to provide support as established by a court order to, another person
whom, by court order to decree, the Defendant is legally obligated to support,”
pursuant to R.C. 2919.21(B).
{¶ 6} Counts 1 through 6 alleged fourth-degree felonies under R.C. 2919.21
because Pittman had been convicted of or pleaded guilty to a previous felony
violation of nonsupport under R.C. 2919.21 on April 3, 2003. Counts 7 through 9
alleged fifth-degree felonies because Pittman had failed to provide support for more
than 26 of 104 consecutive weeks. Thus, Pittman was indicted for six fourth-degree
felonies and three fifth-degree felonies.
{¶ 7} The 2009 indictment was not served on Pittman until he voluntarily
appeared before the court on June 11, 2013. On July 29, 2013, Pittman filed a
motion to dismiss the indictment on the grounds that the state had violated his
constitutional rights to due process of law and a speedy trial in delaying nearly four
years before serving the indictment. At an August 20 hearing, the motion to dismiss
was orally amended to also seek dismissal because the six-year statute of limitations
for felonies set forth in R.C. 2901.13(A)(1) had run. The trial court held that the
prosecution did not commence until July 11, 2013, and that “due diligence was not
exercised in issuing and executing process on the indictment.” Thus, the court held
that Counts 1, 2, 7, 8, and 9 were barred by the statute of limitations because they
alleged criminal conduct that occurred between 2003 and 2005, more than six years
before Pittman was served with the indictment. Counts 3 and 4 alleged criminal
conduct that occurred between July 1, 2005, and June 30, 2007, and the court held
that any “criminal conduct which occurred prior to June 11, 2007,” i.e., six years
prior to the service of the indictment, also fell outside the statute of limitations.
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{¶ 8} Further, the court held that the nearly four-year delay in serving the
indictment violated Pittman’s speedy-trial rights as to all counts but Counts 5 and
6. Counts 5 and 6 alleged that Pittman had engaged in illegal activity between July
1, 2007, and June 30, 2009. The court distinguished Counts 5 and 6 from the older
counts because the delay was not as long, some civil enforcement action occurred
in December 2007, and the likelihood of prejudice was less with respect to the more
recent allegations.
{¶ 9} On September 24, 2013, Pittman moved to dismiss those remaining
counts. He argued that because his daughters were emancipated as of August 31,
2006, he had no duty to provide support to them after that date. Thus, he was not
legally obligated to pay support from July 1, 2007, through June 30, 2009, as
alleged in Counts 5 and 6.
{¶ 10} On October 16, 2013, the state filed a bill of particulars clarifying
the nature of the offenses in Counts 5 and 6. The state indicated that the charges
were based on Pittman’s failure to provide support pursuant to the November 20,
2006 orders, which determined that the children were emancipated and calculated
the amount of Pittman’s arrearage. The state also indicated that Count 5 alleged
that Pittman had failed to provide support as established by a court order to Alma
Douglas for Sate Douglas and Count 6 alleged that he failed to provide support as
established by a court order to Alma Douglas for Sade Douglas. Finally, the state
alleged that Pittman failed to provide support for 101 weeks of the 104 consecutive
weeks between July 1, 2007, and June 30, 2009.
{¶ 11} The parties stipulated to the relevant facts and in a November 5, 2013
hearing, submitted to the court the question of whether R.C. 2919.21(B)
criminalizes the failure to pay an arrearage-only order.
{¶ 12} On November 14, 2013, the trial court granted Pittman’s motion to
dismiss.
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January Term, 2016
With regard to R.C. 2919.21(B), some meaning must be
given to the phrase “to another person whom * * * the person is
legally obligated to support.” The State’s interpretation would
restrict the statute to the initial phrase, which provides: “No person
shall abandon, or fail to support as established by a court order.”
The additional meaning provided by the phrase, “to another person
whom, by court order or decree, the person is legally obligated to
support” is that at the time of the commission of the criminal offense
there must be a current obligation of support.
(Emphasis sic.)
{¶ 13} The state appealed. The Third District Court of Appeals affirmed
the judgment of the trial court, holding that R.C. 2919.21 is unambiguous. The
court noted that the statute uses the present tense and concluded that “[s]ince
Pittman's daughters are emancipated, he was under no current legal obligation to
support his children at the time the State filed its indictment.” 2014-Ohio-5001, 21
N.E.3d 1118, ¶ 19 (3rd Dist.).
{¶ 14} The Third District found unpersuasive a decision of the Fifth District
Court of Appeals in State v. Dissinger, 5th Dist. Delaware No. 02CA–A–02–010,
2002-Ohio-5301 (5th Dist.), holding that an arrearage-only order “can be the basis
of a prosecution under R.C. 2919.21.” Id. at ¶ 12.
{¶ 15} Upon the state’s motion, the appellate court certified that its decision
was in conflict with Dissinger. This court determined that a conflict exists and
ordered briefing on this issue as stated by the court of appeals: “Is a person subject
to prosecution under R.C. 2919.21(B) for the nonpayment of an arrearage-only
child support order when he or she has no current legal obligation to support the
emancipated child?” See 141 Ohio St. 3d 1487, 2015-Ohio-842, 26 N.E.3d 823.
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LAW AND ANALYSIS
{¶ 16} We address whether, pursuant to R.C. 2919.21(B), the state may
prosecute a person who failed to make the payments set forth in an arrearage-only
order issued after the date of his children’s emancipation. R.C. 2919.21(B) reads,
“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.”
{¶ 17} “Our first duty in statutory interpretation is to determine whether the
statute is clear and unambiguous.” Estate of Heintzelman v. Air Experts, Inc., 126
Ohio St. 3d 138, 2010-Ohio-3264, 931 N.E.2d 548, ¶ 15. We examine the words
used by the General Assembly in the statute, “and when the General Assembly has
plainly and unambiguously conveyed its legislative intent, there is nothing for a
court to interpret or construe, and therefore, the court applies the law as written.”
State v. Kreischer, 109 Ohio St. 3d 391, 2006-Ohio-2706, 848 N.E.2d 496, syllabus.
Words and phrases in the statute must be read in context and accorded their
common usage. R.C. 1.42.
{¶ 18} R.C. 2919.21(B) is unambiguous. It criminalizes a person’s failure
to support—in the manner 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.
{¶ 19} In 1988, Pittman was ordered to pay child support for Sade and Sate
until their emancipation. But Pittman’s criminal liability for nonpayment of
support ended on August 31, 2006, when his children were emancipated. Counts 5
and 6 of the indictment alleged that Pittman violated R.C. 2919.21(B) between July
1, 2007, and June 30, 2009, but Pittman was not under a court order to support his
children during that time. The 2006 orders were not for support but instead granted
judgments against Pittman for the arrearage amounts.
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{¶ 20} The state had ample opportunity to pursue criminal charges against
Pittman. Because the alleged violations of R.C. 2919.21(B) for his failure to meet
his obligations under the 1988 orders were felonies, the applicable statute of
limitations was six years. But the state cannot, in effect, extend the statute of
limitations indefinitely by memorializing in an arrearage order the previous failure
to provide support and then seeking criminal charges on the arrearage order. The
state is left to its civil options.
{¶ 21} The decision of the court below was in conflict with the Fifth
District’s decision in Dissinger. We address that decision briefly. In that case, the
court based its decision on the definition of “child support order” in former R.C.
3115.01(B), S.B. No. 180, 148 Ohio Laws, Part IV, 9782, and Part V, 10035. That
definition includes arrearages:
(B) "Child support order" means an order for the support of
a child that provides for monetary support, whether current or in
arrears * * *. “Child support order” includes:
(1) An order under which the child has attained the age of
majority under the law of the issuing state and amounts for current
support are required to be paid, or arrearages are owed, under the
order.
In Dissinger, the court concluded that “[b]ased upon the legislature's definition of
‘child support order’ under R.C. 3115.01(B), * * * a support order includes an
‘arrearage only’ order. Therefore, an [‘]arrearage only’ order can be the basis of a
prosecution under R.C. 2919.21.” Dissinger, 2002-Ohio-5301, at ¶ 12. However,
the definitions found in former R.C. 3115.01(B) were limited to the use of the
defined words in former R.C. 3115.01 through 3115.59, the Uniform Interstate
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Family Support Act. The definition of “child support order,” by the terms of the
defining statute, was not applicable to R.C. 2919.21(B).
CONCLUSION
{¶ 22} In this certified-conflict case, we ordered briefing on the following
question: “Is a person subject to prosecution under R.C. 2919.21(B) for the
nonpayment of an arrearage-only child support order when he or she has no current
legal obligation to support the emancipated child?” We answer that question in the
negative.
{¶ 23} We hold that Pittman was not subject to prosecution under R.C.
2919.21(B) for his failure to make payments on the child-support arrearage
established in the 2006 order when he had no current legal obligation to support his
emancipated children. Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
O’DONNELL, KENNEDY, and O’NEILL, JJ., concur.
LANZINGER, J., concurs in judgment only, with an opinion joined by
O’CONNOR, C.J., and FRENCH, J.
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LANZINGER, J., concurring in judgment only.
{¶ 24} While I concur in the judgment in this case, I write separately to note
that prosecution under R.C. 2919.21 for the nonpayment of child support after a
child reaches 18 years old is not prohibited in every case. On this point, I
respectfully disagree with the court’s analysis. Nevertheless, I agree with the
majority that criminal prosecution in this case fails because the state did not
exercise due diligence in issuing and executing process on the indictment against
Pittman.
{¶ 25} It is undisputed that Pittman was legally obligated to pay child
support for his two daughters, who were born August 31, 1988, until they turned
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18 years old in 2006. And there is no argument that over $68,000 is still owed to
Alma Douglas, the children’s mother, for child-support arrearages.
{¶ 26} R.C. 2919.21(B), the section Pittman was charged with violating,
states, “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.” (Emphasis added.) I can accept that this language limits
prosecutions based on child-support orders to those with current obligations rather
than arrearages. But I disagree with the statement that “Pittman’s criminal liability
for nonpayment of support ended on August 31, 2006, when his children were
emancipated.” Majority opinion at ¶ 19.
{¶ 27} R.C. 2919.21(A)(2) provides, “No person shall abandon, or fail to
provide adequate support to * * * [t]he person’s child who is under age eighteen,
or mentally or physically handicapped child who is under age twenty-one.”
Violation of this section is a first-degree misdemeanor or, depending upon previous
similar convictions, a felony of the fifth or fourth degree. R.C. 2919.21(G)(1). The
six- year statute of limitations for a felony did not expire in Pittman’s situation until
August 2012. If the state had properly brought a criminal action within that time
under R.C. 2929.21(A), the court order could have been used as evidence of the
nonsupport of his daughters, even though they were beyond the age of majority.
{¶ 28} Finally, it should be noted that Alma Douglas has her rights under
R.C. Chapter 3123 to a civil remedy. What has been foreclosed here is criminal
prosecution.
{¶ 29} For these reasons, I concur only in the court’s decision to affirm the
judgment of the Third District Court of Appeals.
O’CONNOR, C.J., and FRENCH, J., concur in the foregoing opinion.
_________________
Brent W. Yager, Marion County Prosecuting Attorney, and Megan K.
Frericks, Assistant Prosecuting Attorney, for appellant.
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Rocky Ratliff and Jeff Ratliff, for appellee.
Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor,
Michael J. Hendershot, Chief Deputy Solicitor, Hannah C. Wilson, Deputy
Solicitor, and Jeffrey Jarosch, Assistant Attorney General, urging reversal for
amicus curiae Ohio Attorney General.
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