[Cite as State v. Hubbard, 2018-Ohio-3627.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :        OPINION

                 Plaintiff-Appellee,           :
                                                        CASE NO. 2017-P-0042
        - vs -                                 :

ROBERT C. HUBBARD,                             :

                 Defendant-Appellant.          :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2016 CR
00241.

Judgment: Reversed and vacated.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Kristen A. Kowalski, 333 South Main Street, Suite 401, Akron, OH 44308 (For
Defendant-Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Robert C. Hubbard, appeals from his convictions for

Nonsupport of Dependents and the denial of his Motion to Dismiss the Indictment by the

Portage County Court of Common Pleas. The issue to be determined by this court is

whether an individual can be indicted for nonpayment of child support when the child is

emancipated at the time the prosecution has commenced. For the following reasons,

we reverse the judgment of the lower court and vacate Hubbard’s convictions.

        {¶2}     On April 21, 2016, the Portage County Grand Jury issued an Indictment,
charging Hubbard with two counts of Nonsupport of Dependents, felonies of the fifth

degree, in violation of R.C. 2919.21(A)(2) or (B). Both counts related to support of

Hubbard’s son, born on December 6, 1995. Count One alleged a violation occurring

during the period of January 1, 2010 to December 31, 2011, and Count Two a violation

during the period from January 1, 2012 through December 31, 2012.

      {¶3}   Hubbard filed a Motion to Dismiss on March 24, 2017, and a subsequent

Memorandum in support, arguing that the Indictment should be dismissed pursuant to

State v. Pittman, 150 Ohio St.3d 113, 2016-Ohio-8314, 79 N.E.3d 531, since the child

had been emancipated and there was no current obligation for support. The State filed

a Brief in Response, arguing that Pittman is distinguishable.

      {¶4}   On May 5, 2017, a hearing was held on the Motion to Dismiss, at which

the parties orally argued their positions. The court denied the Motion and Hubbard

proceeded to enter a plea of no contest to the two counts as charged in the Indictment.

A signed written plea of no contest was filed on May 9, 2017. On the same date, a

Judgment Entry was filed memorializing the court’s acceptance of the plea.

      {¶5}   Following a sentencing hearing, the court issued a June 28, 2017 Order

and Journal Entry, which sentenced Hubbard to a 60-month term of community control.

A July 25, 2017 Order and Journal Entry Nunc Pro Tunc was issued to correct the

misstatement that Hubbard had entered a guilty plea rather than a no contest plea.

      {¶6}   Hubbard timely appeals and raises the following assignment of error:

      {¶7}   “The trial court committed reversible error in denying defendant-

appellant’s motion to dismiss, by finding defendant guilty of non-payment of support,

where defendant’s child had emancipated, contrary to the Ohio Supreme Court holding




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in State v. Pittman (2016), 150 Ohio St.3d 113.”

       {¶8}   “A motion to dismiss an indictment tests the legal sufficiency of the

indictment * * *.” State ex rel. Steffen v. Judges of the Court of Appeals for the First

Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d 906, ¶ 34. “The

sufficiency of an indictment is a legal question reviewed under a de novo standard.”

State v. Blair, 11th Dist. Portage No. 2012-P-0145, 2013-Ohio-3477, ¶ 14; State v.

Swanson, 11th Dist. Ashtabula No. 2015-A-0006, 2015-Ohio-4027, ¶ 18 (a motion to

dismiss an indictment is reviewed de novo).

       {¶9}   Hubbard argues that, pursuant to the Ohio Supreme Court’s holding in

Pittman, supra, a person who no longer has a current support order due to his child’s

emancipation is not subject to prosecution for nonpayment. We agree.

       {¶10} R.C. 2919.21(A)(2) provides that “[n]o person shall abandon, or fail to

provide adequate support to * * * [t]he person’s child who is under age eighteen.”

Further, R.C. 2919.21(B) requires that “[n]o person shall abandon, or fail to provide

support as established by a court order to, another person whom, by court order or

decree, the person is legally obligated to support.”

       {¶11} In Pittman, the Ohio Supreme Court addressed the question of when

nonsupport charges may be brought against a defendant and determined that an

individual is not subject to prosecution for failure to pay an arrearage following

emancipation. The court explained: “R.C. 2919.21(B) is unambiguous. It criminalizes a

person’s failure to support—in the manner established by a court order—another person

whom he is legally obligated to support. Because the statute uses the present tense in

the phrase ‘is legally obligated to support,’ a person charged with a violation must be




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under a current obligation to provide support.” (Emphasis added.) 150 Ohio St.3d 113,

2016-Ohio-8314, 79 N.E.3d 531, at ¶ 18. It is noteworthy that R.C. 2919.21(A)(2) is

also written in the present tense. Here, Hubbard was charged with failure to provide

support in April 2016, when he was not subject to a “current” child support obligation, as

his child had reached the age of 18 in December 2013 and graduated high school in

June 2014.

       {¶12} The State contends that the clear statement of law prohibiting prosecution

following emancipation is distinguishable, since the Pittman case arose from

nonpayment of support under an “arrearage-only” order while Hubbard’s obligation

arose from an existing support order. That distinction is of little import here, as it is

evident the Pittman holding applies to bar prosecution in either instance.

       {¶13} In addition to its analysis in relation to arrearage-only orders, the Pittman

court also found that the defendant’s “criminal liability for nonpayment of support ended

on August 31, 2006, when his children were emancipated.” Id. at ¶ 19. This conclusion

related not to the arrearage-only order but to the defendant’s obligation under the initial

child support order. Pursuant to that logic, Hubbard’s liability under the support order

also ended when his child was emancipated, an event that occurred well before he was

indicted.

       {¶14} The concurring opinion in Pittman, subscribed to by three of the seven

justices, helps to further clarify why Pittman does not apply solely to “arrearage-only”

cases. The concurring opinion states: “While I concur in the judgment in this case, I

write separately to note that prosecution under R.C. 2919.21 for the nonpayment of

child support after a child reaches 18 years old is not prohibited in every case. On this




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point, I respectfully disagree with the court’s analysis.”    Id. at ¶ 24 (Lanzinger, J.,

concurring in judgment only). Specifically, this opinion disagreed with the conclusion

that the defendant’s criminal liability for support ended when the children were

emancipated. It is apparent, then, that the concurring justices themselves believed the

majority opinion in Pittman, which is binding authority this court must follow, was

intended to apply to all cases involving nonpayment of child support.         In fact, the

concurring opinion further emphasized the belief that the filing of nonsupport charges

under the original support order should be permitted within the six-year statute of

limitations regardless of emancipation, citing R.C. 2919.21(A)(2), another indication that

the majority’s opinion did not intend such an outcome for any offense, including non-

arrearage order cases. See id. at ¶ 27.

      {¶15} Thus, reading the entire Pittman opinion in context, the majority’s holding

must be applied to the present scenario, where the charges against Hubbard were not

brought until years after the child was emancipated.         If the Pittman majority had

intended for its holding to apply solely to arrearage-only orders, it would have been

entirely unnecessary and superfluous for the concurring justices to write a separate

opinion disagreeing with the majority’s analysis and asserting that the court’s holding

should not apply “in every case.”

      {¶16} Based on the authority of Pittman, a conclusion that a defendant cannot

be charged with criminal nonsupport following the emancipation of his children is

warranted. As such, the trial court erred by denying the Motion to Dismiss, its judgment

is reversed, and Hubbard’s convictions are vacated.

      {¶17} The sole assignment of error is with merit.




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       {¶18} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas, entering convictions against Hubbard for Nonsupport of Dependents, is

reversed and his convictions are vacated. Costs to be taxed against appellee.



TIMOTHY P. CANNON, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.



                      _____________________________________



COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

       {¶19} I respectfully dissent.

       {¶20} An appellate court reviews a trial court’s decision on a motion to dismiss

de novo. State v. Rode, 11th Dist. Portage No. 2010-P-0015, 2011-Ohio-2455, ¶14. A

motion to dismiss challenges the sufficiency of the indictment. Cleveland v. Olivares,

197 Ohio App.3d 78, 2011-Ohio-5271, ¶8 (8th Dist.) A motion to dismiss should not be

granted if the indictment is valid on its face. Id.

       {¶21} Appellant argues his child was emancipated in 2013 because the boy

turned 18 years old on December 6, 2013. As a result, appellant alleges he no longer

had an obligation to pay support. Thus, appellant posits the trial court erred in denying

his motion to dismiss regarding the second count of the indictment which covered a

period from January 1, 2012 to December 31, 2013.

       {¶22} This writer notes that “[t]he terms ‘emancipation’ and ‘majority’ are not

synonymous. Emancipation is not susceptible of a finite definition; however, it generally




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refers to ‘the freeing of a (* * *) child from parental control.’ In re Owens (1994), 96 Ohio

App.3d 429, 432 * * *; Siefker v. Siefker (Oct. 23, 1997), 3d Dist. No. 12-97-09, 1997

WL 658995, at *2. * * * Emancipation generally discharges a parent’s duty to pay child

support. See Townsen v. Townsen (1954), 101 Ohio App. 85, 88 * * *; Price v. Price

(1983), 12 Ohio App.3d 42, 43 * * *; Pelchat v. Pelchat (Sept. 5, 1986), 6th Dist. No. L-

86-074, 1986 WL 9581, at *4; Black’s Law Dictionary (7th Ed.Rev.) 539. ‘(T)he question

as to when a child is emancipated so as to relieve a parent from the obligation of

support depends upon the particular facts and circumstances of each case.’ Price, 12

Ohio App.3d at 43 * * *.

       {¶23} “The term ‘majority’ is synonymous with the phrase ‘age of majority,’ which

is defined as 18 years of age or older. R.C. 3109.01; Havel v. Chapek, 11th Dist. No.

2004-G-2609, 2006-Ohio-7014, * * * ¶44.          * * * Consequently, a child may reach

majority but not yet be emancipated or be emancipated but not yet at the age of

majority. In other words, the terms emancipated and majority, although correlated, are

legally distinct terms.” Risser v. Risser, 173 Ohio App.3d 430, 2007-Ohio-4936, ¶14-15

(3d Dist.)

       {¶24} Appellant is correct that his son had obtained the age of majority by

turning 18 years old on December 6, 2013.             However, appellant’s son was not

emancipated as he was still finishing his high school education and did not graduate

until June 2, 2014. See Risser, supra, at ¶16 (holding that the father’s son had obtained

the age of majority but was not “emancipated” because his son was still living at home

and finishing his high school education.)




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       {¶25} In addition, appellant relies on Pittman in support of his argument that the

trial court erred in denying his motion to dismiss. In that case, the Ohio Supreme Court

was called upon to answer the following certified-conflict question: “‘Is a person subject

to prosecution under R.C. 2919.21(B) for the nonpayment of an arrearage-only child

support order when he or she has no current legal obligation to support the

emancipated child?’” Pittman, supra, at ¶22. The Court answered that question in the

negative. Id.

       {¶26} The record in Pittman revealed that the defendant was under a 1988 order

to pay child support for two children. Id. at ¶19. The defendant’s criminal liability for

nonpayment of support ended in 2006 when his children were emancipated. Id. The

indictment alleged that the defendant violated R.C. 2919.21(B) between 2007 and 2009

but the defendant was not under a court order to support his children during that time.

Id. The 2006 orders were not for support but rather granted judgments against the

defendant for the arrearage amounts only. Id. Having failed to pursue criminal charges

against the defendant’s failure to meet his obligation under the 1988 order, the state

was not permitted to prosecute under the 2006 arrearages order. Id. at ¶20.

       {¶27} “[P]rosecution under R.C. 2919.21 for the nonpayment of child support

after a child reaches 18 years old is not prohibited in every case.” Id. at ¶24 (Lanzinger,

J., O’Connor, C.J., and French, J., Concurring in Judgment Only with Opinion).

       {¶28} Based on the facts presented in the instant matter, appellant’s reliance on

Pittman is misplaced.    Unlike Pittman, this is not an arrearage-only case.       In fact,

appellant agrees that the order upon which the indictment was based was not an

arrearage order, but rather a support order.




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        {¶29} This appeal arises from a two-count indictment charging appellant with

violations of R.C. 2919.21(A)(2) or (B) between January 1, 2010 to December 31, 2011

(count one), and between January 1, 2012 to December 31, 2013 (count two), periods

of time when appellant was still under a 2005 court order to support his child. Appellant

concedes that he did not make child support payments during those time periods.

Regarding the time period in count two, although appellant’s son turned 18 years old on

December 6, 2013, the boy was not emancipated as he was still finishing his high

school education and did not graduate until June 2, 2014. See Risser, supra, at ¶16.

The record establishes that appellant’s child support obligations terminated on June 1,

2014.

        {¶30} Thus, the state properly pursued criminal charges against appellant for his

failure to meet his obligation under the 2005 order. As the indictment is valid, the trial

court did not err in denying appellant’s motion to dismiss. See Olivares, supra, at ¶8.

        {¶31} I respectfully dissent.




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