§ 28-706 — Criminal nonsupport; penalty; exceptions

Nebraska § 28-706

• Jurisdiction: Nebraska
• Ch. 28: Crimes and Punishments

Text

(1) Any person who intentionally fails, refuses, or neglects to provide proper support which he or she knows or reasonably should know he or she is legally obliged to provide to a spouse, minor child, minor stepchild, or other dependent commits criminal nonsupport.
(2) A parent or guardian who refuses to pay hospital costs, medical costs, or any other costs arising out of or in connection with an abortion procedure performed on a minor child or minor stepchild does not commit criminal nonsupport if:
(a) Such parent or guardian was not consulted prior to the abortion procedure; or
(b) After consultation, such parent or guardian refused to grant consent for such procedure, and the abortion procedure was not necessary to preserve the minor child or stepchild from an imminent peril that substantially endangered her life or health.
(3) Support includes, but is not limited to, food, clothing, medical care, and shelter.
(4) A designation of assets for or use of income by an individual in accordance with section 68-922 shall be considered just cause for failure to use such assets or income to provide medical support of such individual's spouse.
(5) This section does not exclude any applicable civil remedy.
(6) Except as provided in subsection (7) of this section, criminal nonsupport is a Class II misdemeanor.
(7) Criminal nonsupport is a Class IV felony if it is in violation of any order of any court.

Legislative History

Source: Laws 1977, LB 38, § 145; Laws 1978, LB 920, § 3; Laws 1988, LB 419, § 11; Laws 1989, LB 362, § 2; Laws 2006, LB 1248, § 52. Annotations: To prove that a defendant has failed, refused, or neglected to provide proper support under this section, the State is not required to prove that a defendant has an ability to pay; however, a defendant may present evidence of inability to pay in order to disprove intent. State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015). An assertion that defendant did not pay child support in mistaken belief that the trial court's order relieved him of such responsibility if visitation rights were terminated does not negate the intent necessary for violation of this section. State v. Beck, 238 Neb. 449, 471 N.W.2d 128 (1991). Under subsection (1) of this section, "intentionally" means willfully or purposely, and not accidentally or involuntarily. State v. Bright, 238 Neb. 348, 470 N.W.2d 181 (1991). A prison sentence imposed for failure to support one's children does not constitute an imprisonment for debt within the prohibition contained in Article 1, section 20, of the Constitution of Nebraska, nor does it constitute cruel and unusual punishment. State v. Reuter, 216 Neb. 325, 343 N.W.2d 907 (1984). Prosecution under section 28-449 of the old criminal code could be brought for failure to support wife, child, or stepchild, even though a child support judgment, either incident to a decree of divorce or separation or otherwise, has been entered against the person charged. Where a person prosecuted under such section has previously been ordered to pay child support in a divorce decree, the measure of his liability is the amount provided in the decree. State v. Easley, 207 Neb. 443, 299 N.W.2d 439 (1980). Intent is an essential element of the crime of nonsupport. State v. Noll, 3 Neb. App. 410, 527 N.W.2d 644 (1995). A defendant in a State-initiated paternity action has an absolute right to be represented by counsel, and the trial court in such an action must make an initial determination regarding whether the defendant is indigent and whether the defendant should be appointed counsel. State v. Yelli, 3 Neb. App. 148, 524 N.W.2d 353 (1994). Intent is one of the essential elements of the crime of criminal nonsupport. State v. Noll, 2 Neb. App. 73, 507 N.W.2d 44 (1993).