Sheriff v. Vlasak

888 P.2d 441, 111 Nev. 59, 1995 Nev. LEXIS 3
CourtNevada Supreme Court
DecidedJanuary 25, 1995
Docket24893
StatusPublished
Cited by6 cases

This text of 888 P.2d 441 (Sheriff v. Vlasak) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sheriff v. Vlasak, 888 P.2d 441, 111 Nev. 59, 1995 Nev. LEXIS 3 (Neb. 1995).

Opinions

[60]*60OPINION

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 [61]*61not 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 presump[62]*62tion 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

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Sheriff v. Vlasak
888 P.2d 441 (Nevada Supreme Court, 1995)

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Bluebook (online)
888 P.2d 441, 111 Nev. 59, 1995 Nev. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheriff-v-vlasak-nev-1995.