APPEAL from the Circuit Court of Calhoun County; the Hon.
DENNIS K. CASHMAN, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
This appeal presents a question not heretofore passed upon by the reviewing courts> of this State, namely, the meaning of the words, "without any lawful excuse," as used in section 1 of the Non-Support of Spouse and Children Act (Ill. Rev. Stat. 1979, ch. 40, par. 1101).
The defendant and his former wife were married in 1948. Five children were born as issue of the marriage. The parents were divorced by decree of the circuit court of Calhoun County on December 10, 1976. Under that decree the defendant was ordered to pay $50 per week as child support. At trial, his former wife testified that she had received no payments since the divorce. On June 1, 1979, she signed a criminal complaint charging defendant with nonsupport under section 1 of the Act cited above. Jury trial was held in the circuit court of Calhoun County, as a result of which defendant was found guilty by verdict, and was sentenced by the trial court to one year's probation.
Three issues are presented for our consideration by defendant: (1) whether inability to pay is a lawful excuse within the meaning of the statute, (2) whether such inability is an affirmative defense, thus entitling defendant to an instruction on the matter, and (3) whether defendant was proved guilty beyond a reasonable doubt.
The evidence at trial disclosed that defendant possesses bachelor's degrees in science and in fine arts, and taught in the schools of Calhoun County for four years, 1968 to 1972. At some time shortly after leaving the schools, he moved to California and there established a mission as a counselor and scientology minister. The mission had as its purpose aid to young people who had problems associated with drugs and who had been released from prison. Defendant maintained the mission until approximately three months prior to the trial, at which time he returned to St. Charles, Missouri, and there established an industrial drapery cleaning business.
The divorce was granted on the basis of defendant's desertion and the five children remained in his former wife's custody, except for a period of six months, when one child, a retarded boy, stayed with his father at the mission in California. The former wife supported herself and the children by working as a librarian in Calhoun County under a Federal assistance program. That program was terminated shortly before the trial and she was receiving unemployment compensation, together with payments under the Aid to Dependent Children program, and the Supplemental Security Income program for the boy who is retarded. She testified that all of this was insufficient for the needs of the children and when she asked the defendant for support money, he became defensive and claimed she was harassing him. Further evidence disclosed that defendant had remarried, and that there was another child as the issue of this marriage.
Defendant offered evidence, albeit vague, concerning the mission and its operation. It was a small apartment complex in which defendant lived and rented out portions "to students and ministers from different parts of the country." At the rear was what he described as a "workshop," apparently a series of garages containing wood-working shops, in which clients of the mission were employed.
The mission's sources of income are not stated categorically but appear to be from rentals of space in the apartment complex and sale of products from the workshop. Defendant testified that he attempted to get the mission established as a business entity, but was unsuccessful. He further testified as to difficulties with "the income tax people."
Further testimony revealed that all income to the mission was used for mission expenses, which included defendant's food and lodging, automobile and gasoline, and utilities. Notwithstanding defendant's attempts to segregate the mission as an entity, he filed individual income tax returns (Internal Revenue Service Form 1040), and took as deductions all of his personal expenses mentioned above. The 1977 form 1040 showed an income of over $19,000 and a taxable income of $1,680. His 1978 form 1040 showed taxable income of $2,458.
From the foregoing we are led to the conclusion that the defendant and the mission were indistinguishable. He operated it as a personal fiefdom, and the record is barren of any suggestion that he, or the mission, were under the direction, discipline or supervision of any higher authority, ecclesiastical or otherwise.
In pertinent part, the statute provides as follows:
"Every person who shall, without any lawful excuse, * * * desert or neglect or refuse to provide for the support or maintenance of his or her child or children under the age of 18 years, in need of such support or maintenance, shall be deemed guilty of a Class A misdemeanor * * *." Ill. Rev. Stat. 1979, ch. 40, par. 1101.
Defendant first maintains that inability to pay is a lawful excuse. We agree that it may be under the proper state of facts, but defendant has failed to come within its scope in the instant case for two reasons: (1) the evidence demonstrated an ability to pay at least the residue of his taxable income after payment of taxes, and (2) any inability must be the result of circumstances over which a defendant has no control.
The record does not disclose how much of the income of the mission was spent for defendant's personal expenses, but we need not be concerned with this, since it does disclose that there was a surplus in 1977 and 1978. Even though requested by his former wife to make payments, defendant refused. The language of the supreme court in Shaffner v. Shaffner (1904), 212 Ill. 492, ...