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State v. Nelson

November 18, 2003

STATE OF MINNESOTA, RESPONDENT,
v.
LARRY ALLEN NELSON, APPELLANT.



Olmsted County District Court File No. K502428

Considered and decided by Stoneburner, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

SYLLABUS BY THE COURT

A condition precedent to a criminal nonsupport of a child charge is an attempt by the state to obtain a court order holding the person in contempt for failing to pay support during the time period specified in the complaint.

The opinion of the court was delivered by: Toussaint, Chief Judge

Affirmed in part, reversed in part

OPINION

On appeal from his conviction of criminal nonsupport of a child, appellant argues that Minn. Stat. § 609.375, subd. 2b requires the state to attempt to obtain a contempt order against an obligor for failure to pay child support during the time period specified in the complaint. Because the district court erred in concluding that contempt orders obtained for failure to pay during unrelated time periods satisfied the statutory prerequisite, but the statute does not apply to four of the five counts, we affirm in part and reverse in part.

FACTS

Following the dissolution of appellant Larry Nelson's marriage, the district court ordered him to pay $739 per month in child support and child-care reimbursement for his two children. Subsequently, the court modified Nelson's obligation multiple times to reflect changes in circumstances and cost-of-living adjustments.

In December 1995, the district court found Nelson in civil contempt for failure to divulge information on his current income and assets. The court ordered Nelson to remain in custody until he paid $2,000 toward his arrearages, disclosed information regarding his income and assets, and worked out a payment agreement for his child-support arrearages. In May 1996, the court released Nelson after finding that incarceration would not induce him to comply with the court's order and that continued incarceration would be in violation of his due-process rights.

Nelson made partial child-support payments from August 1996 through February 1997, but stopped making payments when he quit his job. As of October 1997, Nelson's child-support and child-care arrearages totaled $17,671.

In January 1998, the district court found Nelson in civil contempt for consciously and willfully failing to pay child support despite having the ability to do so. The district court stayed Nelson's jail sentence, provided that Nelson complied with several purge conditions, including the requirement that he remain current in his child-support, child-care, and arrearage obligations. As of February 1998, Nelson's child-support and child-care arrearages totaled $19,985.

In April 1998, the district court found Nelson in civil contempt once again, for failing to pay his child-support obligation and for failing to comply with the district court's order. Nelson was incarcerated. In June 1998, the district court denied Nelson's motion for release because he had not complied with the purging conditions of the district court's order.

Nelson's appeal to this court was dismissed, and the Minnesota Supreme Court denied further review. At a contempt-review hearing in September 1998, however, the district court released Nelson, finding that he was ...


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