COURT OF APPEALS JUDGE SARA COMBS IN CONCURRING OPINION CITES AUTHOR JOHN-PAUL SARTE FOR RULE WHICH IMPOSES A CONTINUING CHILD SUPPORT OBLIGATION ON PRISON INMATES WHO ARE INDIGENT
At LawReader we read every appellate decision and seldom find quotations from French authors in the usually dry language of appellate decisions.
Judge Combs explains that she concurred with the ruling which imposed a continuing child support obligation on a prison inmate who obviously could not earn money to pay child support, and which allows him to be continuously prosecuted for non-payment but she disagrees with the rationale of the law.
She explains that it is her duty to uphold the law, but that the law is a prime example of the victory of theory over common sense.
2010-CA-001175 Court of Appeals Decision released on June 17 2011
NOT TO BE PUBLISHED HENDERSON CIRCUIT COURT
COMMONWEALTH OF KENTUCKY
MOORE (PRESIDING JUDGE)
ISAAC (CONCURS) AND COMBS (CONCURS)
COMBS, JUDGE, CONCURS IN RESULT BY SEPARATE OPINION. (excerpts)
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.
…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
(8 The title of a play by Jean-Paul Sartre in which the incarcerated characters are dealing with hopelessness in the venue of Hell.)
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.
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.