TO: All IV-D Agents and Staff CSM No. 103

TO: All IV-D Agents and Staff CSM No. 103

Child Support Enforcement Staff

FROM: Steven P. Veno

Deputy Commissioner

DATE: October 22, 2008

SUBJECT: Court of Appeals - Flagrant Nonsupport Case

Recently, the Court of Appeals issued a ruling on a case regarding flagrant nonsupport. Marshall v. Comm., Ky. App., 2007-CA-001320-MR (to be published). The noncustodial parent pled guilty to flagrant nonsupport in April 2005 and was sentenced to three years imprisonment. The sentence was conditionally discharged provided that he paid his child support obligation timely and retired accumulated arrearages. In April 2007, the Commonwealth filed a motion to revoke his conditional discharge; as the noncustodial parent had not made a payment since November 2005. At the hearing, the noncustodial parent testified that he lacked the ability to pay the ordered child support. The Court revoked the conditional discharge and ordered the noncustodial parent imprisoned for the remainder of the sentence. The noncustodial parent appealed on the grounds that his right to due process was violated by the trial court when the court refused to examine alternative punishments to imprisonment arguing he did not willfully refuse to pay his support. He also claimed that he was too poor to pay his support obligation and the circuit court was required to inquire as to the reasons that the defendant was unable to pay.

The Court of Appeals rejected in part, the noncustodial parent’s argument. The noncustodial parent relied on [no italics, just underline] Bearden v. Georgia,. 461 U.S. 660, 103 S.Ct. 2064 and [no italics, just underline] Clayborn v. Comm., 701 S.W.2d 413 (1985), which refer to nonpayment of fines and restitution, not nonpayment of child support. The noncustodial parent failed to cite authority requiring the circuit court to consider alternative forms of punishment when revoking probation or conditional discharge for failure to pay child support. The Court of Appeals succinctly stated, “There is simply no legal authority requiring the circuit court to consider alternative forms of punishment when revoking probation or conditional discharge for failure to pay child support.” Marshall at 4.

The noncustodial parent also argued that the circuit court’s order revoking conditional discharge did not contain findings of fact and thus, violated his constitutional right to due process. The Court of Appeals held that the probation revocation must conform to the minimum requirements of due process. Rasdon v. Comm., Ky. App., 701 S.W.2d 716 (1986). The United States Supreme Court set forth the minimal due process requirements applicable to a probation revocation proceeding in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct., 2593 and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756.

·  Written notice of the claimed violations of parole;

CSM No. 103

October 22, 2008

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·  Disclosure to the parolee of evidence against him;

·  Opportunity to be heard in person and to present witnesses and documentary evidence;

·  The right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);

·  A “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and

·  A written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

The Court of Appeals vacated the order of revocation, finding that the trial court abused its discretion by failing to delineate findings of fact to support its revocation of the noncustodial parent’s conditional discharge. Graves Circuit Court is still free to revoke Marshall’s conditional discharge but must set forth, in any subsequent order, specific finding of fact supporting the revocation. Marshall makes it abundantly clear that conditional discharge can be revoked for failure to make child support payments and that the reasons for non-payment are irrelevant. Marshall only requires the court, at the revocation stage, to make specific finding of fact supporting the revocation.

Click on the link attached to read the full proceeding.