2021 Colorado Code
Title 14 - Domestic Matters
Article 6 - Nonsupport
§ 14-6-101. Nonsupport of Spouse and Children - Penalty

1. Any person who willfully neglects, fails, or refuses to provide reasonable support and maintenance for his spouse or for his children under eighteen years of age, whether natural, adopted, or whose parentage has been judicially determined, or who willfully fails, refuses, or neglects to provide proper care, food, and clothing in case of sickness for his spouse or such children or any such children being legally the inmates of a state or county home or school for children in this state, or who willfully fails or refuses to pay to a trustee, who may be appointed by the court to receive such payment, or to the board of control of such home or school the reasonable cost of keeping such children in said home, or any person, being the father or mother of children under eighteen years of age, who leaves such children with intent to abandon such children, or any man who willfully neglects, fails, or refuses to provide proper care, food, and clothing to the mother of his child during childbirth and attendant illness is guilty of a class 5 felony. It shall be an affirmative defense, as defined in section 18-1-407, C.R.S., to a prosecution under this section that owing to physical incapacity or other good cause the defendant is unable to furnish the support, care, and maintenance required by this section. No child shall be deemed to lack proper care for the sole reason that he is being provided remedial treatment in accordance with section 19-3-103, C.R.S.
2. Repealed.

History. Source: L. 11: P. 527, § 1. C.L. § 5566. CSA: C. 83, § 1. CRS 53: § 43-1-1 . L. 55: P. 287, § 1. C.R.S. 1963: § 43-1-1 . L. 73: P. 547, § 1. L. 81: (1) amended, p. 901, § 1, effective May 27. L. 87: (1) amended, p. 815, § 16, effective October 1. L. 92: (2) repealed, p. 396, § 1, effective June 3; (1) amended, p. 202, § 7, effective August 1.

Analysis

• I. GENERAL CONSIDERATION.
• II. ELEMENTS OF OFFENSE AND EXCUSES FOR FAILURE TO SUPPORT.
• III. PLEADING AND PRACTICE.

Law reviews. For an article on “Ten Years of Domestic Relations in Colorado -- 1940-1950”, see 27 Dicta 399 (1950). For article on “The Problem of Compelling Fathers to Support Their Dependent Children”, see 27 Dicta 442 (1950). For article, “A Lawyer's Advice to the Unmarried Mother”, see 31 Dicta 112 (1954). For article, “Highlights of the 1955 Colorado Legislative Session -- Domestic Relations”, see 28 Rocky Mt. L. Rev. 66 (1955). For article, “Highlights of the 1955 Legislative Session -- Criminal Law and Procedure”, see 28 Rocky Mt. L. Rev. 69 (1955). For note, “Enforcement of Support Duties in Colorado”, see 33 Rocky Mt. L. Rev. 70 (1960). For note, “Aid to Families with Dependent Children -- A Study of Welfare Assistance”, see 44 Den. L.J. 102 (1967).

Annotator's note. Cases relevant to § 14-6-101 decided prior to its earliest source, L. 11, p. 527 , § 1, have been included in the annotations to this section.

This article was held not to violate § 1 of art. V, Colo. Const. Pearman v. People, 64 Colo. 26 , 170 P. 192 (1917); Wamsley v. People, 64 Colo. 521 , 173 P. 425 (1918).

This section does not violate § 12 of art. II, Colo. Const., prohibiting imprisonment for debt. Martin v. People, 69 Colo. 60 , 168 P. 1171 (1917); People v. Elliott, 186 Colo. 65 , 525 P.2d 457 (1974).

Purpose. The felony nonsupport statute is designed to promote and protect the health and welfare of minor children and to prevent such children from becoming wards of the state. People v. Elliott, 186 Colo. 65 , 525 P.2d 457 (1974).

This article does not change the law as to the civil liability of the husband to furnish his wife reasonable support; it just provides a penalty in case he fails to do so, unless excused by physical incapacity or other good cause Poole v. People, 24 Colo. 510 , 52 P. 1025 (1898).

Duty to support spouse ceases when marriage is dissolved unless an order of maintenance is entered in connection with the dissolution decree. Com. of Pennsylvania v. Barta, 790 P.2d 895 (Colo. App. 1990).

The nonsupport statutes such as this have been regarded only as enforcing, and not as creating, a duty on the part of husbands and fathers with reference to the support of wives and children. Kilpatrick v. People, 64 Colo. 209 , 170 P. 956 (1918).

It simply makes the willful neglect of a duty theretofore existing a felony. People v. Driscoll, 72 Colo. 115 , 209 P. 869 (1922).

The supreme court was fortified in limiting the court's authority to require security for the payment of alimony by reason of the fact that with respect to orders for the payment of sums required for the support and maintenance and education of the minor children of the parties, the general assembly had enacted this section which made it a felony for a husband to neglect, fail or refuse to provide reasonable support and maintenance for his minor children under the age of 16 years. Brown v. Brown, 131 Colo. 467 , 283 P.2d 951 (1955).

Therefore a father who neglects to discharge his natural, as well as his statutory, duty to his children “shall be deemed guilty of a felony”, and may be imprisoned for so doing unless he provides a bond conditioned upon the support of such children. Brown v. Brown, 131 Colo. 467 , 283 P.2d 951 (1955).

Formerly, the primary obligation for the support of a minor child rested upon its father, and the fact that the mother was self-supporting did not serve to relieve the father of his obligation. McQuade v. McQuade, 145 Colo. 218 , 358 P.2d 470 (1960).

Obligation of mother now equal to that of father. The general assembly in 1973 reassessed the relative responsibilities of the parents with regard to support of their children and imposed an obligation on the mother equal to that of the father. People v. Elliott, 186 Colo. 65 , 525 P.2d 457 (1974).

Changing legislative view of role and capabilities of mother. This enlargement of the scope of protection for minor children suggests a legislative view that the role of the mother has expanded beyond the domestic sphere to which it had been relegated and that the economic abilities and opportunities of the parents are more nearly on a parity concerning their capability of providing support for their children. People v. Elliott, 186 Colo. 65 , 525 P.2d 457 (1974).

Since the father is under a legal duty or obligation to support his child in an adequate manner, resort to the courts may be had to enforce compliance, and such action is not made nonmaintainable because of statutory proceedings relating to the support of children in divorce, separate maintenance and annulment actions nor because of the statute relating to dependent and neglected children. McQuade v. McQuade, 145 Colo. 218 , 358 P.2d 470 (1960).

The inherent right to support belongs to the child, and there exists no reason to hinge the enforcement of such right upon the existence or nonexistence of statutory right in the mother to obtain a divorce or separate maintenance, or upon a statute designed for children neglected by both parents. McQuade v. McQuade, 145 Colo. 218 , 358 P.2d 470 (1960).

The rights of the child exist independent of the rights of the mother, and are enforceable in equity in the absence of a statute providing for relief in the express circumstances. McQuade v. McQuade, 145 Colo. 218 , 358 P.2d 470 (1960).

A dismissal of complaints seeking divorce and separate maintenance is not res judicata concerning the right of a minor child to compel adequate support by his father. McQuade v. McQuade, 145 Colo. 218 , 358 P.2d 470 (1960).

An alleged father of an illegitimate child, in any case where such child is under 16 years of age, may be prosecuted for failure to support it, without having been adjudged, in some prior proceeding, to be such father. Ortega v. Portales, 134 Colo. 537 , 307 P.2d 193 (1957).

This section contains the provision that any man who shall willfully refuse to support his legitimate or illegitimate child under 16 years of age shall be deemed guilty of a felony. Ortega v. Portales, 134 Colo. 537 , 307 P.2d 193 (1957).

No provision of the bastardy act has any bearing upon a prosecution under this section. Wamsley v. People, 64 Colo. 521 , 173 P. 425 (1918).

The gravamen of the offense is not the fathering of the illegitimate child, but the failure to make provision for his support if and when it becomes a dependent child under the statute. Ortega v. Portales, 134 Colo. 537 , 307 P.2d 193 (1957).

This section does not attempt to punish the father for begetting or neglecting to support the child before the section took effect, but requires a defendant, as the father of a child, to contribute to his support and maintenance, thus relieving the mother or others upon whom the burden may chance to fall. Ortega v. Portales, 134 Colo. 537 , 307 P.2d 193 (1957).

The parent cannot be released of his duty to support the child by contract with anyone, but the fact that he entered into a contract and thereby made provisions for such support may have an important bearing upon the issue as to whether his neglect was willful or not. Laws v. People, 59 Colo. 562 , 151 P. 433 (1915).

Although a bastardy prosecution under one statute is barred because not brought in time, an action may still be maintained under another statute for failure to support an illegitimate child. Ortega v. Portales, 134 Colo. 537 , 307 P.2d 193 (1957).

“Support and maintenance” are of much broader import than “food, clothing, and shelter”, and may include many things besides food and clothing, and shelter. Campbell v. People, 42 Colo. 228 , 94 P. 256 (1908).

Construed as applying to the duty of the husband when the wife is sick, the “food, clothing, and shelter” are properly connected, and it seems to have been the intention of the general assembly to require the husband, whatever provision he may have made for his wife and minor children while they were well, that he furnish, not money, with which they may provide for their own comfort, but in the case of their sickness that he must, at his peril, provide them with proper food, clothing, shelter, and care. Campbell v. People, 42 Colo. 228 , 94 P. 256 (1908).

An information alleging that defendant “did willfully fail, refuse, and neglect to provide proper food, clothing, and shelter, and care in case of sickness for his wife”, was fatally defective, in that it failed to allege that defendant's wife was sick at the time it was charged he failed to provide for her. Campbell v. People, 42 Colo. 228 , 94 P. 256 (1908).

The term “willfully” is defined as intentionally done without just cause, excuse or justification after notice and request for support. People v. Green, 178 Colo. 77 , 495 P.2d 549 (1972).

To be willful the neglect must have occurred while defendant knew, or ought to have known, that the need existed. Laws v. People, 59 Colo. 562 , 151 P. 433 (1915).

Where willful neglect to support minor children is an element of an offense under this section, it is proper for a court to instruct the jury on intent. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).

Because this section provides that the willful neglect, failure or refusal to provide reasonable support for a minor child or children is an element of the offense, therefore intent is material in a case, and it is proper for a court to so instruct the jury. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).

Every person mentally capable of knowing right from wrong in relation to his acts is presumed to intend to do that which he does do, and to intend the natural and probable consequences of his act, and it is for a jury to determine the fact as to a defendant's intent, which may be shown by direct or by circumstantial evidence. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).

Intent is an act or a purpose of the mind rarely discoverable except by the acts of a person, and is manifested by the circumstances connected with the perpetration of an offense, and the sound mind and discretion of the accused. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).

The people sustained their burden of establishing that defendant willfully failed to provide the required child support when they showed that for a period of time he earned more than $400 per month and yet made no support payments. Gallegos v. People, 161 Colo. 158 , 420 P.2d 409 (1966).

A willful failure where the defendant is earning a salary has been defined, as intentionally done “without just cause, excuse or justification” after notice and request for support. Gallegos v. People, 161 Colo. 158 , 420 P.2d 409 (1966).

That part of this section which states that a defendant is guilty of nonsupport when he willfully fails to provide that required support “unless it shall appear that owing to physical incapacity or other good cause he is unable to furnish the support, care, and maintenance herein required”, is not a true exception. Gallegos v. People, 161 Colo. 158 , 420 P.2d 409 (1966).

This is so because of the use of the term “willfully” in the first part of the section, and the supreme court holds that the word “willfully” is synonymous with the statutory expression which begins “unless it shall appear” Gallegos v. People, 161 Colo. 158 , 420 P.2d 409 (1966).

This renders the later clause surplusage since “willfully” necessarily implies lack of just cause, excuse or justification; thus, allegation of the willful (or felonious) nature of the act is all that is required. Gallegos v. People, 161 Colo. 158 , 420 P.2d 409 (1966).

Good cause is defined as a substantial or legal cause as distinguished from an assumed or imaginary pretense. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).

The question of good cause is properly for the jury. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957); Silcott v. People, 177 Colo. 451 , 492 P.2d 70 (1971).

Evidence that a father is capable of earning, and did earn good wages during a period of four months, is sufficient to show that his neglect to support minor children is not due to good cause. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).

The fact that a defendant has other demands upon his income, including support of a new family, does not constitute good cause for failure to support minor children. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).

A father's testimony that he has been in financial straits since the separation from his wife is not an excuse or good cause. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).

In a prosecution of a husband for failure to support his wife, he was not relieved from such support on account of the financial means of the wife. Poole v. People, 24 Colo. 510 , 52 P. 1025 (1898).

It was immaterial that the wife had means of her own, such means not having been obtained from the husband. Poole v. People, 24 Colo. 510 , 52 P. 1025 (1898).

If it had been established that the wife left the defendant without an adequate excuse, refused without reasonable grounds to return to him, and he offered and was willing to support her if she returned, he could not be convicted of willful nonsupport of his wife. Kilpatrick v. People, 64 Colo. 209 , 170 P. 956 (1918).

The act of 1893, providing that any person living in this state who shall willfully neglect to provide support for his wife may be adjudged guilty of misdemeanor, did not affect the general powers of a court of equity to entertain suits to compel a husband to pay alimony consistent with his condition in life, and reasonable for the maintenance of his wife or his family or both. Dye v. Dye, 9 Colo. App. 320, 48 P. 313 (1897).

An allowance of temporary alimony to the wife in an action brought by her for divorce is not admissible evidence against the husband in a prosecution for nonsupport. Kilpatrick v. People, 64 Colo. 209 , 170 P. 956 (1918).

One acquitted of sexual intercourse with an unmarried female under 18 years of age is not liable to prosecution under this section for failure to support the illegitimate child alleged to be the fruit of the same illicit intercourse averred in the first information. Reil v. People, 62 Colo. 567 , 164 P. 315 (1917).

Under this section the father of an illegitimate child under 16 years of age may be prosecuted for his failure to support it, without any prior adjudication of the paternity and this whether the child were begotten before or after the enactment of the statute. Pearman v. People, 64 Colo. 26 , 170 P. 192 (1917); Wamsley v. People, 64 Colo. 521 , 173 P. 425 (1918).

Where, in a prosecution under this section, the child in question was not born in wedlock, the prosecution has the burden of showing parentage. Martin v. People, 60 Colo. 575 , 155 P. 318 (1916).

The accused is entitled to deny that the child is his, and though a marriage with the mother is shown, he must be permitted to put in evidence that at the time of such marriage the woman was the wife of another, and to exclude the evidence is error. Martin v. People, 60 Colo. 575 , 155 P. 318 (1916).

A decree of divorce which commits the child to the custody of the mother, and is silent as to the child's support, does not relieve the father of his duty. Desch v. Desch, 55 Colo. 79 , 132 P. 60 (1913).

A divorced wife may, in an original action, recover of the father a reasonable sum for necessaries furnished by her for a child's support, after such decree, the recovery being commensurate with his means and station in life. Desch v. Desch, 55 Colo. 79 , 132 P. 60 (1913).

The word “feloniously” when used in an indictment or information has been held by the supreme court to be equivalent to the word “willfully”, and its use satisfies the requirements of pleading the essential elements of the crime, though it is much better form to follow the precise statutory wording. Gallegos v. People, 161 Colo. 158 , 420 P.2d 409 (1966).

Where an information filed with a justice of the peace on January 18, 1897, charging a party with failure to support his wife alleged the time of the offense as “on or about the 19th day of September, and continuously since, A. D. 1897”, it was held, that from the language employed charging the time when the offense was committed, it is fairly inferable that it was at a date prior to the filing of the information, and although it might have been successfully attacked at the proper time, by a motion on account of form, or ambiguity, it is too late to raise that question after trial. Poole v. People, 24 Colo. 510 , 52 P. 1025 (1898).

In a prosecution under this section for failure to support an illegitimate child, it is not necessary to prove that the child is in need of support. Trujillo v. People, 122 Colo. 436 , 222 P.2d 775 (1950).

It was permissible to introduce into evidence the register of a hotel where the complainant testified she and defendant had stayed overnight, where the defendant acknowledged signatures in the register as his own. Trujillo v. People, 122 Colo. 436 , 222 P.2d 775 (1950).

The trial court's action in excluding a letter written by the complainant to defendant's witness was not prejudicial to the defendant where the effect of the whole letter was to entreat the witness to tell the truth, if he did testify. Trujillo v. People, 122 Colo. 436 , 222 P.2d 775 (1950).

Where the complainant denied having had sex relations with anyone other than the defendant, and the defense put on four witnesses to testify to her alleged promiscuity, it was not error for the complainant to testify in rebuttal of the testimony of the four witnesses. Trujillo v. People, 122 Colo. 436 , 222 P.2d 775 (1950).

In such a prosecution, the state must prove its case beyond a reasonable doubt, and it was not error for the trial court to refuse defendant's instruction which stated that the state had to prove its case simply by a preponderance of the evidence. Trujillo v. People, 122 Colo. 436 , 222 P.2d 775 (1950).

It was permissible to allow the doctor who attended complainant during her confinement to refresh his memory from a birth certificate which he made at the time even though the certificate was obtained from the local registrar of vital statistics. Trujillo v. People, 122 Colo. 436 , 222 P.2d 775 (1950).

Where there was judgment that defendant pay a certain sum monthly, etc., until the further order of the court, “and execute a bond in the sum, etc., for the faithful performance, etc., and upon failure, to be transported to the penitentiary to be there kept in close confinement at hard labor for three months”, it was held a sufficient compliance with the statute. Poor v. People, 67 Colo. 60 , 185 P. 467 (1919).

In a prosecution for willful failure to support minor children, evidence of a pending criminal case against a defendant, elicited on cross examination of defendant and within the scope of his direct examination, is not prejudicial. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).

Failure of the father to inquire as to the needs of the child was held, in view of the circumstances, insufficient to convict him of willful neglect. Laws v. People, 59 Colo. 562 , 151 P. 433 (1915).