By Greg Smith and Brett Skidmore
Most people may be aware of the fact that stiff penalties await those who fail to stay current on their child support obligations in the state of Utah, such as wage garnishments and/or driver’s license suspension. However, few may realize that even more serious consequences can result from the failure to remain in compliance with a child support order.
According to the Utah Criminal Code section 76-7-201, a person may be charged with “criminal nonsupport” if he or she “knowingly fails to provide for the support of . . . [a] child, or children when any one of them: a) is in needy circumstances; or b) would be in needy circumstances but for support received from a source other than the defendant’s behalf.”
Section 76 provides that criminal nonsupport is a class A misdemeanor – which is not something to be taken lightly. However, an individual may be charged with a 3rd degree felony if he or she “has been convicted one or more times of nonsupport, whether in this state, or any other state, or any court of the United states; committed the offense while residing outside of Utah; or commits the crime of nonsupport in each of 18 individual months within any 24-month period, or the total arrearage is in excess of $10,000.”
It turns out that not everyone who has been charged with criminal nonsupport in Utah has agreed with this law. For example, in the Utah court case, State v. Johnson (79 P.3d 419) a man living in Utah failed to comply with an Alaska court’s child support order and, as a result, was found guilty of criminal nonsupport by a Utah district court.
The defendant appealed the district court’s ruling and attempted to dismiss the case, arguing that Utah court’s should not be able to exercise jurisdiction over someone who has violated an Alaska court order while living in Utah. However, the appellate court disagreed with the defendant and, in so doing, cited to Utah Code Ann. § 76-1-201 which states that Utah has jurisdiction to prosecute criminal offenses that are either committed “wholly or partly within Utah”. The court held that the defendant’s failure to act when he stopped paying child support constituted a criminal offense committed within the state of Utah. Therefore, the district court’s ruling was upheld and the defendant’s criminal charges were enforced.
There is hope for those defendants who are charged with this crime. An affirmative defense is available for defendants who are unable to provide support. However, section 76 makes it clear that “[v]oluntary unemployment or underemployment by the defendant does not give rise to that defense.”