Request By:
Mr. David W. Mossbrook
Cabinet for Human Resources
Office of Counsel
275 East Main Street
Frankfort, Kentucky 40621
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Richard C. Carroll, Assistant Attorney General
In a letter to this office you requested an opinion on the following questions:
1. Does the Commonwealth of Kentucky have jurisdiction to prosecute a Kentucky resident under KRS 530.050 for nonsupport if the minor child resides in another state?
2. Does it make any difference whether the court or administrative order to pay support was issued by Kentucky or by another jurisdiction in cases where an order exists?
The statute at issue, KRS 530.050, provides:
(1) A person is guilty of nonsupport:
(a) When he persistently fails to provide support which he can reasonably provide and which he knows he has a duty to provide to a minor or to a child adjudged mentally disabled, indigent spouse or indigent parent; or
(b) Upon a finding that a defendant obligor, subject to court order to pay any amount for the support of a minor child, is delinquent in meeting the full obligation established by such order and has been so delinquent for a period of at least two (2) months duration.
(2) A person is guilty of flagrant nonsupport when he persistently fails to provide support which he can reasonably provide and which he knows he has a duty to provide by virtue of a court or administrative order to a minor or to a child adjudged mentally disabled, indigent spouse or indigent parent and the failure results in:
(a) An arrearage of not less than one thousand dollars ($ 1,000); or
(b) Six (6) consecutive months without payment of support; or
(c) The dependent having been placed in destitute circumstances. For the purposes of this paragraph, it shall be prima facie evidence that a dependent has been placed in destitute circumstances if the dependent is a recipient of public assistance as defined in KRS 205.010.
(3) A person has a duty to provide support for an indigent spouse, a minor child or children, or a child or children adjudged mentally disabled and, for purposes of this section, is presumed to know of that duty.
(4) Any person who is eighteen (18) years of age or over, residing in this state and having in this state a parent who is destitute of means of subsistence and unable because of old age, infirmity, or illness to support himself or herself, has a duty to provide support for such parent and, for purposes of this section, is presumed to know of that duty.
(5) Nonsupport is a Class A misdemeanor. For a second offense, the person shall receive a minimum sentence of seven (7) days in jail. For a third or any subsequent offense, the person shall receive a minimum sentence of thirty (30) days in jail.
(6) Flagrant nonsupport is a Class D felony.
In determining if KRS 530.050 applies to a Kentucky resident where the minor child resides in another state, one must refer to KRS 500.060 which deals with the territorial applicability of the Kentucky Penal Code. KRS 500.060 provides, in pertinent part:
(1) Except as otherwise provided in this section, a person may be convicted under the law of this state of an offense committed by his own conduct or the conduct of another for which he is legally accountable when:
(a) Either the conduct or the result which is an element of the offense occurs within this state; or
. . .
(e) The offense consists of the omission to perform a legal duty imposed by the law of this state regardless of where that person is when the omission occurs . . .
(2) Subsection (1)(a) does not apply if causing a particular result is an element of an offense and the result is caused by conduct occurring outside the state would not constitute an offense if the result had occurred there, unless the actor intentionally or knowingly caused the result within the state.
KRS 500.060(1)(a) or (e) could be applicable to the fact pattern described in your letter. Subsection (1)(a) could apply since the conduct which is an element of KRS 530.050, failure to provide support, occurred in Kentucky. Subsection (1)(e) could apply since the offense consists of a legal duty imposed by the law of this state to provide support to one's children. Professor Brickey in Kentucky Criminal Law, Section 1.05(5), (1974), states that the crime of nonsupport is in fact an example of an omission to perform such a duty as described in KRS 500.060(1)(e). This interpretation agrees with the official Commentary which accompanies the above-cited statute which states:
Subsection (3) provides for the prosecution in this state of an offense that is based upon the nonperformance of a legal duty. Without regard to the location of a defendant at the time of nonperformance, the offense is committed in Kentucky if the legal duty is imposed by Kentucky law. The most frequent application of this subdivision may invoke the failure of a parent to support his children. This offense (nonsupport) is punishable by this state even though committed by an omission outside the state, since the conduct involved affects an interest of this state.
Id. at 7.
While the Commentary to the penal code is not to be considered as the authoritative interpretation of the penal code, it may be used as an aid in interpreting the code. Smith v. Commonwealth, Ky.App., 587 S.W.2d 266 (1979). Based upon the above-cited authority, it is the opinion of this office that KRS 500.060(1)(a) or (e) authorize a court in this state to exercise jurisdiction over a Kentucky resident who fails to provide support to his children even though the children reside outside of Kentucky.
This interpretation is consistent with the fact that neither KRS 500.060 nor KRS 530.050 requires the child or parent to be a resident of Kentucky in order for the parent to be prosecuted in Kentucky for nonsupport. Obviously, if neither the child nor parent were Kentucky residents, the state could not assume jurisdiction over the parent. However, when either the obligor parent or child resides in this state, then under KRS 500.060(1)(e), a Kentucky court should be able to prosecute the obligor parent for a violation of KRS 530.050. This interpretation is also consistent with the general rule that nonsupport is considered to be a continuing offense which in its nature may be said to have occurred at the father's residence or at the place where the child resided or in both places. See Government of the Virgin Islands v. Audain, 366 F.Supp. 710 (D.C. V.I. 1973); and 44 A.L.R. 2d, Jurisdiction and Venue of Criminal Charge for Child Desertion or Nonsupport as Affected by Nonresidence of Parent or Child, 886.
Therefore, it is the opinion of this office that the courts of this Commonwealth have jurisdiction to prosecute a Kentucky resident under KRS 530.050 even if the minor child resides in another state.
Further, it is the opinion of this office that the order to pay support does not have to have been issued by a Kentucky court. This opinion is based upon the principles set forth above regarding the obligation to support children and upon the fact that no such requirement is contained in KRS 530.050 or 500.060.