Sheriff v. Vlasak

OPINION

By the Court,

Steffen, C. J.:

The sole issue presented by this appeal is whether NRS 201.020, which criminalizes a parent’s “persistent” failure to provide “support and maintenance” for his or her children, is unconstitutionally vague. For the reasons explained hereafter, we conclude that the challenged statute is not unconstitutional and we therefore reverse the district court’s order.

FACTS

The respondent, David Vlasak, married nonparty Rita Gray in 1982, fathered two children, and was divorced from Gray in 1986. The divorce decree ordered Vlasak to pay monthly child support in the amount of $150 per child. On July 2, 1992, the State filed an information in the district court charging Vlasak with felonious failure to pay child support in violation of NRS 201.020, which provides in relevant part:

1. Any . . . parent who without lawful excuse deserts or willfully neglects or refuses to provide for the support and maintenance of his legitimate or illegitimate minor child or children . . . shall be punished:

(a) If the conduct for which the defendant was convicted persisted for less than 6 months, for a misdemeanor or, if such conduct persisted for more than 6 months, for a gross misdemeanor or, if for more than 1 year, by imprisonment in the state prison for not less than 1 year nor more than 6 years, or by a fine of not more than $5,000, or by both fine and imprisonment.

Gray testified at the preliminary hearing that Vlasak never paid child support until sometime in 1990, and then only after the district attorney’s office became involved in the case. As of June, 1992, Vlasak had yet to make a voluntary payment directly to Gray. Gray further testified that Vlasak told her that he would rather go to jail than pay the required support. Finally, Gray testified that Vlasak did provide entertainment, clothing and gifts to the children when they visited him.

Deborah Backland, a family support specialist in the district attorney’s office, testified that as of June, 1992, her office had been able to collect a total of $955 from Vlasak. The record does not indicate when and in what increments the $955 was paid to the district attorney’s office, although there is a vague reference to $25 and $50 partial payments. Further, the district attorney’s office has obtained a number of contempt orders against Vlasak, each of which resulted in a suspended sentence. On March 19, 1991, Gray obtained a judgment against Vlasak in the amount of $12,900. As of June, 1992, the amount Vlasak owed to Gray had increased to $17,045. We are unaware of the present status of Vlasak’s arrearages.

At a hearing held on August 3, 1993, the district court dismissed the felony information against Vlasak on grounds that NRS 201.020 was unconstitutionally vague. The order dismissing the information stated:

Cause appearing, this Court finds that NRS 201.020 is unconstitutional for vagueness. The statute does not delineate a period of time for which persistent, continuous nonsupport should occur in order to establish grounds for a criminal offense. Neither “persistent” nor “support” are defined by this statute, leaving the person of ordinary intelligence without notice as to the conduct expected and the law enforcement official without the guidelines necessary to prevent discriminatory enforcement.

This appeal followed.

DISCUSSION

This court has addressed the “vagueness” doctrine on a number of occasions. See, e.g., Cunningham v. State, 109 Nev. 569, 570, 855 P.2d 125, 125 (1993) (“A statute which forbids the doing of an act in terms so vague that people of common intelligence must necessarily guess as to its meaning violates the first essential of due process, the notion of fair notice or warning.”); State v. Richard, 108 Nev. 626, 629, 836 P.2d 622, 624 (1992) (“A vague law is one which fails to provide persons of ordinary intelligence with fair notice of what conduct is prohibited and also fails to provide law enforcement officials with adequate guidelines to prevent discriminatory enforcement.”). We have also ruled, however, that:

The due process clause of the United States Constitution “does not require impossible standards of specificity in penal statutes. The test of granting sufficient warning as to proscribed conduct will be met if there are well settled and ordinarily understood meanings for the words employed when viewed in the context of the entire statutory provision.” It is settled that statutes are clothed with the presumption of validity and the burden is on those attacking them to show their unconstitutionality.

Wilmeth v. State, 96 Nev. 403, 405, 610 P.2d 735, 737 (1980) (quoting Woofter v. O’Donnell, 91 Nev. 756, 762, 542 P.2d 1396, 1400 (1975)) (citations omitted).

We have reviewed the issue of the constitutionality of NRS 201.020 under illumination of the foregoing standards. The district court found the word “support” to be so vague that persons of ordinary intelligence would be without notice of the conduct proscribed. According to the court’s expressions prior to its order of dismissal, the court apparently found sufficient ambiguity in the statute to foreclose the conclusion that neither Vlasak’s occasional provision of clothing, food, and entertainment to the children during visitation periods, nor the coerced payments collected by the district attorney (totalling $955 over a number of years), satisfied Vlasak’s duty of support under the statute. We do not view the word “support” to be so vague and therefore disagree with the district court.

We have previously considered the requirements of NRS 201.020 and concluded that the phrase “support and maintenance” means any court-ordered legal obligation to pay child support. Epp v. State, 107 Nev. 510, 513, 814 P.2d 1011, 1013 (1991). Indeed, the district court in the instant case initially found that “support” denotes the amount of court-ordered child support when it announced that it would rely on the following standard of law:

[T]he instruction is going to be a continuous period that exceeds one year. Do you not have such a period in mind? I mean, do you — was there a hiatus of 12 consecutive months that he failed to pay child support?¹

We are persuaded that parents of ordinary intelligence will understand that their willful refusal to pay court-ordered child support violates the clear terms of the criminal statute under discussion. Additionally, parents of ordinary intelligence must realize from the language of the statute that trifling and occasional expenditures for entertainment and expenses incident to visitation do not entitle them to disregard their obligations to make lawfully imposed support payments. Such parents are on notice that the willful and legally unexcused refusal to provide the required support is prohibited and will not be countenanced under Nevada law.

The district court also found the phrase “persisted for more than one year” unconstitutionally vague because it may be arbitrarily enforced by officials who do not understand its meaning. According to the district court, the phrase may be interpreted to mean a period of time in which there were no intervening payments of support. Under this reading, a derelict parent'does not commit a felony until 366 days after the last support payment was tendered. Conversely, the district court indicated that the statute may be read to mean that “one may make sporadic payments, but still be criminally responsible because one ‘persisted’ in being sporadic” for more than one year. Again, we disagree with the district court and conclude that the challenged phrase is not constitutionally infirm.

NRS 201.020 criminalizes the “persistent” refusal to pay court-ordered child support.² One persists in refusing to pay child support whenever there are two or more consecutive months during which the supporting parent willfully, and without legal excuse, refuses to remit the full amount required by court order. Any such willful refusal to remit the full amount required by court order constitutes a refusal to pay “support and maintenance” for that month. Any such willful refusal to pay the full amount required persisting for more than one year would violate the felony provisions of the statute. We emphasize, however, that NRS 201.020 is inapplicable whenever a parent’s persistent failure to provide support does not rise to the statutory standard of “willfully” refusing to comply with court-ordered support. Thus, the standard for nonsupport is objectively defined, and a conviction under the statute depends upon a factual finding of a persistent, willful refusal, without legal excuse, to pay court-ordered support during the relevant time period.

We conclude that the word “support” and the phrase “persisted for more than a year” are subject to “well settled and ordinarily understood meanings . . . when viewed in the context of the entire statutory provision.” Wilmeth v. State, 96 Nev. 403, 405, 610 P.2d 735, 737 (1980). We therefore hold that NRS 201.020 is sufficiently clear to provide notice to potential violators of the conduct proscribed. The statute is not void for vagueness where, as here, the support and maintenance obligations are fixed by court order.³

CONCLUSION

For the reasons discussed above, NRS 201.020 is constitutional, and the order of the district court dismissing the criminal information against Vlasak is reversed.

Shearing and Rose, JJ., concur.

1 See also NRS Chapter 130, entitled Reciprocal Enforcement of Support (Uniform Act), which defines “duty of support” as follows:

“Duty of support” means a duty of support whether imposed or imposable by law or by order, decree or judgment of any court, whether interlocutory or final or whether incidental to an action for divorce, separation, separate maintenance or otherwise and includes the duty to pay arrearages of support past due and unpaid.

NRS 130.0411.

2 NRS 201.020 makes criminal a parent’s willful refusal, without legal excuse, to pay child support and maintenance. The statute does not specify the need for court-ordered support and maintenance as a predicate for the violation of the statute. Because the issue is not implicated in the instant case, we express no opinion as to whether the statute is sufficiently clear to pass constitutional muster when applied to the willful refusal to provide support and maintenance under lawful obligation stemming from sources other than a court order.

3 See supra note 2.