DUTIES OF TRIAL COURT IN IMPOSING SANCTIONS FOR NON-SUPPORT – JUSTICE CUNNINGHAM CITES STAR WARS IN HIS SPIRITED DISSENT
In a published case released by the Ky. Supreme Court on Thursday Aug. 25, 2011, the Sup. Ct. again upheld the rule that a party who is delinquent in the payment of child support has the right to a due process hearing to determine if his/her failure to pay child support is “willful”.
Justice Bill Cunningham issued a colorful dissent.
COMMONWEALTH OF KENTUCKY V. GRAVES 2009-SC-000229-DG.PDF Aug. 25, 2011
The majority ruled: “We conclude that due process requires that the trial court considering revocation for nonpayment of support (1) consider whether the probationer has made sufficient bona fide efforts to pay but has been unable to pay through no fault of his own and (2) if so, consider whether alternative forms of punishment might serve the interests of punishment and deterrence.
This holding is consistent with existing Kentucky and United States Supreme Court precedent concerning motions to revoke probation for failure to pay fines or restitution.
We also reconfirm the principle of due process that the trial court must make clear findings on the record specifying the evidence relied upon and the reasons for revoking probation. This requirement specifically includes findings about whether the defendant made sufficient bona fide efforts to make payments.
Marshall and Johnson both testified that they had not willfully refused to pay child support. They testified that they had been unable to make the required child support payments because of low income caused by inability to find or maintain sufficiently remunerative employment.
Despite Marshall’s and Johnson’s explanations of their alleged inability to pay child support, the trial court revoked their conditional discharges.”
Justice Cunningham vigorously dissented from the ruling:
CUNNINGHAM, J., DISSENTING: (excerpts from dissent)
“Even Yoda, the diminutive Star Wars guru, recognized that sometimes in life we have to fish or cut bait. “Do or do not. There is no try.”…
It is an admonition which fits the deadbeat parent when all our solicitous pleadings and beseeching have led nowhere….
Standing on the other side of the courtroom are fathers, sometimes thousands of dollars behind in their obligations. This creates not only a terrible hardship on young mothers, but strains our already strapped welfare system….
With our decision here today, we make it more difficult for the state to enforce child support laws…
Therefore, for the reasons stated above, I would affirm. I thereby respectfully dissent.”