15: Modification and Enforcement of Child Support

Case in Point: State v. Oakley, 2001 WI 103, 245 Wis. 2d 447, 629 N.W.2d 200

Synopsis

David Oakley fathered nine children with four different women and had been ordered to pay child support for all of them. Oakley was charged with intentionally refusing to pay child support as a repeat offender after accumulating over $25,000 in arrears. Noting Oakley’s clear ability to work and “obvious, consistent, and inexcusable” disregard of his obligation to support his children, and lamenting that a prison sentence would result in Oakley not being “in a position to pay any meaningful support for these children,” the trial court opted to impose a total of 11 years in prison, staying 8 years and imposing 5 years of probation. One condition of probation (which if violated, would result in Oakley’s 8-year imprisonment) was that Oakley was not to father any more children unless he demonstrated that he had the ability to – and actually was – supporting them.

Excerpts

Following are excerpts from the opinion affirming the Court of Appeal's determination that the condition of probation was not overly broad and was appropriate (citations and references to other authorities within the opinion are omitted)

Refusal to pay child support by so-called "deadbeat parents" has fostered a crisis with devastating implications for our children.5 Of those single-parent households with established child support awards or orders, approximately one-third did not receive any payment while another one-third received only partial payment.6 For example, in 1997, out of $26,400,000,000 awarded by a court order to custodial mothers, only $15,800,000,000 was actually paid, amounting to a deficit of $10,600,000,000. These figures represent only a portion of the child support obligations that could be collected if every custodial parent had a support order established.8 Single mothers disproportionately bear the burden of nonpayment as the custodial parent.9 On top of the stress of being a single parent, the nonpayment of child support frequently presses single mothers below the poverty line.10 In fact, 32.1% of custodial mothers were below the poverty line in 1997, in comparison to only 10.7% of custodial fathers.11 Indeed, the payment of child support is widely regarded as an indispensable step in assisting single mothers to scale out of poverty, especially when their welfare benefits have been terminated due to new time limits.

The effects of the nonpayment of child support on our children are particularly troubling. In addition to engendering long-term consequences such as poor health, behavioral problems, delinquency and low educational attainment, inadequate child support is a direct contributor to childhood poverty. And childhood poverty is all too pervasive in our society. Over 12 million or about one out of every six children in our country lives in poverty. In Wisconsin, poverty strikes approximately 200,000 of our children, with 437,000 at or below 200% of the poverty level in 1999. Although payment of child support alone may not end childhood poverty, it could reduce current levels and raise childhood standards of living. Child support—when paid—on average amounts to over one-quarter of a poor child's family income. There is little doubt that the payment of child support benefits poverty-stricken children the most. Enforcing child support orders thus has surfaced as a major policy directive in our society.

In the present case, the record indicates that Judge Hazlewood was familiar with Oakley's abysmal history prior to sentencing. The record reveals that Judge Hazlewood knew that Oakley had a number of support orders entered for his nine children, but he nevertheless continually refused to support them. He was aware that Oakley's probation for intimidating two witnesses in a child abuse case—where one of the witnesses was his own child and the victim—was in the process of being revoked. Judge Hazlewood was also apprised that Oakley had promised in the past to support his children, but those promises had failed to translate into the needed support. Moreover, he knew that Oakley had been employed and had no impediment preventing him from working. As the court of appeals observed in the witness intimidation case against Oakley, "[t]he refusal to pay the fines and the victim intimidation both show Oakley's cavalier attitude toward the justice system. . . .Oakley needs to be rehabilitated from his perception that one may flout valid court orders and the judicial process with impunity and suffer no real consequence." Given his knowledge of Oakley's past conduct, Judge Hazlewood was prepared to fashion a sentence that would address Oakley's ongoing refusal to face his obligations to his nine children as required by law.

In doing so, Judge Hazlewood asserted that some prison time coupled with conditional probation might convince Oakley to stop victimizing his children. With probation, Judge Hazlewood sought to rehabilitate Oakley while protecting society and potential victims—Oakley's own children—from future wrongdoing. The conditions were designed to assist Oakley in conforming his conduct to the law. In Wisconsin, … we have condemned unequivocally intentional refusal to pay child support and allow for the severe sanction of prison to be imposed on offenders. Here, the judge fashioned a condition that was tailored to that particular crime but avoided the more severe punitive alternative of the full statutory prison term through the rehabilitative tool of probation. At the same time, Judge Hazlewood sought to protect the victims of Oakley's crimes—Oakley's nine children.

Applying the relevant standard here, we find that the condition is not overly broad because it does not eliminate Oakley's ability to exercise his constitutional right to procreate. He can satisfy the condition of probation by making efforts to support his children as required by law. Judge Hazlewood placed no limit on the number of children Oakley could have. Instead, the requirement is that Oakley acknowledge the requirements of the law and support his present and any future children.29 If Oakley decides to continue his present course of conduct—intentionally refusing to pay child support—he will face eight years in prison regardless of how many children he has. Furthermore, this condition will expire at the end of his term of probation. He may then decide to have more children, but of course, if he continues to intentionally refuse to support his children, the State could charge him again under § 948.22(2). Rather, because Oakley can satisfy this condition by not intentionally refusing to support his current nine children and any future children as required by the law, we find that the condition is narrowly tailored to serve the State's compelling interest of having parents support their children.30 It is also narrowly tailored to serve the State's compelling interest in rehabilitating Oakley through probation rather than prison. The alternative to probation with conditions—incarceration for eight years—would have further victimized his children. And it is undoubtedly much broader than this conditional impingement on his procreative freedom for it would deprive him of his fundamental right to be free from physical restraint. Simply stated, Judge Hazlewood preserved much of Oakley's liberty by imposing probation with conditions rather than the more punitive option of imprisonment.