NONSUPPORT OF WIFE AND/OR MINOR CHILDREN

NONSUPPORT OF WIFE AND/OR MINOR CHILDREN.

Nonsupport action may be brought against a husband and father in the place of residence of the wife and/or minor children or in the state of residence of the father.

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                                                                    July 27, 1959

Honorable Herbert H. Davis
Prosecuting Attorney
Benton County
Fisk Building
Prosser, Washington                                                                                      Cite as:  AGO 59-60 No. 54

Dear Sir:

            In a letter previously acknowledged, you asked our opinion on the following questions:

            1.  Does the State of Washington have jurisdiction to institute criminal proceedings under the Abandonment and Support Law against a father who resided in another state and whose family moved to the State of Washington?

            2.  Does the State of Washington have jurisdiction to institute criminal proceedings against a father who resides out of the State of Washington but who, at some time during his married life, lived in the State of Washington and moved therefrom, after which time his family moved to the State of Washington and he failed to provide for their support?

            We answer both questions in the affirmative, as modified in the analysis.

                                                                     ANALYSIS

            The duty of a husband to support and maintain his wife and his family is not only a moral obligation but is also a duty which exists both at common law and under statute.  It is even sometimes deemed a public duty since it is owed not only to the wife but also to the state.  41 C.J.S., § 15.

             [[Orig. Op. Page 2]]

            A review of the Washington case law reveals that the questions you pose have not been presented to or resolved by our state supreme court.  In addition, the authorities in other jurisdictions are not in accord.  The cases differ widely in the results reached, depending upon the specific statutes construed as well as upon the basic legal concept adopted by the court in arriving at its conclusion.

            The pertinent Washington statute covering abandonment and nonsupport is RCW 26.20.030, which provides as follows:

            "(1) Every person who:

            "(a) Has a child dependent upon him or her for care, education or support and deserts such child in any manner whatever with intent to abandon it; or

            "(b) Wilfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, or medical attendance for his or her child or children or ward or wards; or

            "(c) Has sufficient ability to provide for his wife's support or is able to earn the means for his wife's support and wilfully abandons and leaves her in a destitute condition; or who refuses or neglects to provide his wife with necessary food, clothing, shelter, or medical attendance, unless by her misconduct he is justified in abandoning her, shall be guilty of the crime of family desertion or nonsupport.

            "(2) When children are involved under the age of sixteen years, such act shall be a felony and punished by imprisonment in the state penitentiary for not more than twenty years or by imprisonment in the county jail for not more than one year or by fine of not more than one thousand dollars or by both fine and imprisonment.

            "(3) When there is no child under sixteen years, such act shall be a gross misdemeanor and shall be punished by imprisonment in the county jail for not more than one year or by fine of not more than one thousand dollars, or by both fine and imprisonment."

            Although the statute,supra, sets forth two crimes, desertion and nonsupport, we are limiting our consideration of the problem to the one with which you are specifically concerned -nonsupport.

             [[Orig. Op. Page 3]]

            In an annotation in 44 A.L.R. (2d) 881, the distinction is pointed out between the offense of abandonment or desertion and that of nonsupport as follows (p. 892):

            "In view of the general rule that jurisdiction and venue are in the courts of the place in which the offense was committed, it is important to note that nonsupport is a continuing offense, the mere omission of a duty 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, while abandonment or desertion is a single occurrence which 'generally, if not always, occurs at one definite place.'"

            As we have previously noted, the questions which you pose are matters of first impression in this state inasmuch as our supreme court has not had occasion to rule upon them.  27 Am. Jur., Husband and Wife, § 444, discusses the general rule as follows:

            ". . . Such prosecutions [for nonsupport] must as a general rule be instituted in the county of the legal residence of the wife at the time when the husband abandons or fails to support her.  Thus, where a man deserts or abandons his wife or minor child and subsequently removes to another place, or where he sends the wife or child to another place, he is properly indicted and tried for the offense in the jurisdiction where the wife or child becomes dependent, regardless of his nonresidence, for that is the place where the duty of support should be discharged, and consequently the place where the offense of failure to support is committed. . . ."

            In the case ofState v. Wellman, 102 Kan. 203, 170 Pac. 1052, a defendant living in Missouri, who had not been in Kansas prior to his extradition there, was convicted of the crime of failing to support his child under sixteen living in Kansas.  The court there affirmed the judgment based on the conviction.  In discussing the duty of the defendant to support his child in Kansas, the court stated as follows (p. 1056):

            "We think that whether the defendant is answerable to the Kansas courts depends upon whether he owed this state a duty to support his children while they were here with their mother.  Although he was divorced from her, they were still his children, and  [[Orig. Op. Page 4]] except for special circumstances he was under an obligation to support them.  If they had been wrongfully taken by her from his home, where he was ready to care for them, doubtless he would owe no duty to provide for them at the place where she detained them.  The statute covers such a situation by penalizing nonsupport only when it is 'without lawful excuse.'  But if through the misconduct of the defendant it became necessary for the mother to remove them from his control, he would not be thereby relieved from his obligation to provide for them. . . ."

            The court further stated that:

            ". . . The omission to perform this duty occurred here.  The defendant is not being prosecuted for any wrongful behavior which resulted in his wife and children leaving him; such misconduct, if it occurred, could not be a violation of a Kansas statute, but might bring about a condition under which the defendant was under an affirmative obligation to act, and by merely remaining passive might become a violator of our laws.  He is under prosecution for his disobedience of the statute which took place between November 10, 1916, and February 10, 1917, by his then neglecting and refusing to provide for the support of his children.  If he had sent his wife and children into Kansas, it would hardly be doubted that he became responsible for their care here.  If as a result of his wrongdoing they were obliged to leave him and seek refuge elsewhere, the circumstance that they found shelter in a state which undertakes to punish the neglect of parental duty under such circumstances, when they might have chosen one having a different policy in that regard, imposes upon him no hardship of which he has any standing to complain.  Their being here was not due to his deliberate choice, but according to the state's theory it was the result of his voluntary misconduct."

            Another case in point is the case of Osborn v. Harris, 115 Utah 204, 203 P. (2d) 917, which involved a writ of habeas corpus to secure the defendant's release from prison upon a conviction for failing to support his wife and children.  In denying the writ, the court decided that the defendant could be convicted in Utah where he permitted his wife and children to live or in which his misconduct had induced them to seek refuge, though he  [[Orig. Op. Page 5]] resided in a different state.  After pointing out that the authorities are divided, the court stated as follows (p. 636):

            ". . . 'We are of the opinion that the better rule is this:  The husband may be charged with the offense of failure to provide in the state in which he has permitted his wife or children to live, or in which his misconduct has induced them to seek refuge.  * * * It seems clear from the authorities cited that petitioner would not be criminally liable in Utah for the nonsupport that occurred while his wife was in Idaho, but as failure to provide is a continuing offense, the courts of this state have jurisdiction of that part of the failure to provide that was charged to have occurred between December 1947 and March 1948 -the time the wife and children were in Utah.'"

            In the recent case ofState v. Tickle, 238 N.C. 206, 77 S.E. (2d) 632 (1953), involving the nonsupport of an illegitimate child living in North Carolina, by a father living in Virginia, the court quoted with approval the rule set forth in 27 Am. Jur., § 444, supra.  In that case the court found that there was a constructive presence of the defendant in North Carolina by which the crime of nonsupport was consummated and accordingly, since nonsupport constituted a crime in North Carolina, the court had jurisdiction over the defendant's person.  The court discussed the necessity of the physical presence of the defendant in the jurisdiction charging the commission as follows (p. 634):

            "But as to some crimes the physical presence of the accused at the place where the crime is committed is not essential to his guilt is well settled.  'The constitutional requirement is that the crime shall be tried in the state and district where committed; not necessarily in the state or district where the party committing it happened to be at the time.'  Burton v. U. S., 202 U.S. 344, 26 S.Ct. 688, 701, 50 L.Ed. 1057; State v. Johnson, 212 N.C. 566, at page 570, 194 S.E. 319.

            "'There may be a constructive presence in a jurisdiction, distinct from a personal presence, by which a crime may be consummated, and a person beyond the limits of a state or country putting in operation a force which produces a result constituting a crime within those limits, is as liable to indictment and punishment, if jurisdiction can be obtained of his person as if he had  [[Orig. Op. Page 6]] been within the limits of the state or country when the crime was committed.'  22 C.J.S., Criminal Law, § 134, page 219, citing numerous cases."

            The United States supreme court denied certiorari in the Tickle case.

            Our court, however, has held that the father of an illegitimate child is not liable for support payments except by timely proceedings under the bastardy act,Hurst v. Wagner, 181 Wash. 498, 43 P. (2d) 964, and accordingly the holding of theTickle case as regards an illegitimate child would be modified to that extent.

            In the case ofStrasshein v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735, the supreme court enunciated the rule as follows:

            ". . . Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power."

            The question of whether another state will surrender a person within its jurisdiction who is accused of having broken the criminal laws of another state, without having been personally present therein, is a matter of its own domestic policy.  State v. Wellman, 102 Kan. 503, 170 Pac. 1054.

            An analysis of the pertinent case authority on the questions you have presented reveals that a majority permit the trial of a delinquent nonresident father in the place in which he permitted his family to live, or in the place where his misconduct has induced his family to take refuge.

            In addition, we wish to call your attention to the fact that the reciprocal enforcement of support act, which was adopted by the Washington legislature as chapter 26.21 RCW, contains a provision (§ 5) which lends weight to the conclusions reached in the foregoing cases.  It provides specifically as follows:

            "The governor of this state (1) may demand from the governor of any other state the surrender of any person found in such other state who is charged in this state with the crime of failing to provide for the support of any person in this state and (2) may surrender on demand by the governor of any other state any person found in this state who is charged in such other state with the crime of failing to provide for the support of  [[Orig. Op. Page 7]] a person in such other state.  The provisions for extradition of criminals not inconsistent herewith shall apply to any such demand although the person whose surrender is demanded was not in the demanding state at the time of the commission of the crime and although he had not fled therefrom.  Neither the demand, the oath nor any proceedings for extradition pursuant to this section need state or show that the person whose surrender is demanded has fled from justice, or at the time of the commission of the crime was in the demanding or the other state."  (RCW 26.21.040) (Emphasis supplied.)

            In view of the fact that the authorities are not in agreement upon the questions you have posed, it is the opinion of this office, that the reasoning used by the courts in holding that the crime of nonsupport is a continuing one, not dependent upon the residence of the father, is the more persuasive than the contrary view.  Such being the case, it is immaterial whether the father has ever been within the jurisdiction of the state of Washington so long as Washington is the place where he has permitted his family to live or where his misconduct has induced his family to take refuge.

            Accordingly, it is the opinion of this office that the state of Washington has jurisdiction to institute criminal proceedings for nonsupport against a father residing in another state whose family moved to the state of Washington either with his consent or because of his misconduct.  In addition, the state of Washington has jurisdiction to institute criminal proceedings against a father, the one time resident of the state of Washington who moved to another state, and who is failing to support his family currently living in the state of Washington either with his consent or who moved to this state because of his misconduct.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

FRED C. DORSEY
Assistant Attorney General