COURT OF APPEALS JUDGE SARA COMBS CALLS ON LEGISLATURE TO REMEDY A LEGAL NIGHTMARE

 By LawReader Senior Editor Stan Billingsley   April 9, 2011

Court of Appeals Judge Sara Combs has published a concurring opinion upholding a legal theory she helped establish in 2000.  Judge Combs now finds that ruling to be “a victory of theory over common sense”.

In Commonwealth v. Marshall, 15 SW3d 392 (2000) she voted with the majority to uphold the rule of law that holds that a parent who is in prison can be punished for failing to pay child support which accrues during the prison service.

This rule has resulted in repeated criminal charges being filed against parents who are in prison and cannot work to earn money, and as a result can’t pay their child support obligations.

Once the arrearage adds up to $1000 they can, and often are, prosecuted and years can be added to their existing sentence.  This is a vicious circle  akin to the establishment of a Debtor’s Prison, such as the ones found in a Charles Dickens novel.

 This is the ultimate Catch-22.  “You must pay child support, but we will remove you from society so you can’t work, and then we will punish you further for not working.”

She writes in a Court of Appeal decision issued April 8, 2011 (cited below) that:

“The theory is that those who are incarcerated continue to accrue arrearages in child support not only in spite of — but also because of — the fact of their incarceration. No doubt the deliberate failure of a parent to support a dependent child is intolerable.

However, in reality, it makes no sense to charge a prisoner with constantly accruing new arrearages when he is in no position to work to obtain income either to meet or to offset child support that is owed and becomes owing. ”

“We have in effect created a legal nightmare of No Exit in which arrearages

continue to accrue and to constitute new felonies without any possibility on the part of the incarcerated to mitigate or to avoid the felonies of which he/she becomes instantly guilty.”

Judge Combs voted again to uphold the doctrine, in this week’s decision due to the precedent set in the 2000 ruling.  But she is unhappy with the result and calls on the legislature to remedy the injustice of this doctrine.

“On numerous occasions over the intervening years, I have regretted that vote after seeing the glaring injustice inherent in the rule of the Marshall case

“I do not know the solution to this social conundrum, but I am convinced as a matter of law, public policy, and conscience that it needs to be addressed by the legislature – perhaps as a continuation of its heroic overhaul of the penal system.”

FROM HENDERSON CIRCUIT COURT   -  NOT TO BE PUBLISHED  -April 8, 2011

PRYOR, JACKIE

 

VS.

 

COMMONWEALTH OF KENTUCKY

 

For full text of case click case number 2010-CA-001175

 

COMBS, JUDGE, CONCURS IN RESULT BY SEPARATE

OPINION.

COMBS, JUDGE, CONCURRING: I was a member of the panel that

decided Commonwealth v. Marshall, 15 S.W.3d 392, 402 (Ky. App. 2000), and I concurred reluctantly in its holding that “incarcerated parents are to be treated no differently than other voluntary unemployed, or underemployed, parents owing support.”

On numerous occasions over the intervening years, I have regretted that

vote after seeing the glaring injustice inherent in the rule of the Marshall case.

Marshall is a prime example of the victory of theory over common sense, of

academic opining over the dictates of reality, and of form over substance.

The theory is that those who are incarcerated continue to accrue arrearages in child support not only in spite of — but also because of — the fact of their incarceration. No doubt the deliberate failure of a parent to support a dependent child is intolerable.

However, in reality, it makes no sense to charge a prisoner

with constantly accruing new arrearages when he is in no position to work to obtain income either to meet or to offset child support that is owed and becomes owing.

We have in effect created a legal nightmare of No Exit8 in which arrearages

continue to accrue and to constitute new felonies without any possibility on the part of the incarcerated to mitigate or to avoid the felonies of which he/she becomes instantly guilty.

In effect, we are imputing criminal mens rea, a per se violation of due process on the part of the legal establishment.

I do not know the solution to this social conundrum, but I am convinced as a matter of law, public policy, and conscience that it needs to be addressed by the legislature – perhaps as a continuation of its heroic overhaul of the penal system.

There is no beneficiary under the current state of the law. Even those

intended to be protected — namely, the dependent children – are further victimized by suffering continued and often permanent non-support because the parent who is incarcerated likely will never be able – even if willing – to address and meet his or her growing arrearage and future child support obligations.

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