SUPREME COURT OF MISSOURI

en banc

STATE OF MISSOURI, )

)

Appellant, )

)

v. ) No. SC94668

)

DENNIS E. MEACHAM, )

)

Respondent. )

)

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY

The Honorable Troy Cardona, Judge

Opinion issued October 13, 2015

Dennis Meacham (Father) was charged with criminal nonsupport in violation of 

section 568.040, RSMo Supp. 2011. He filed a motion to dismiss the information as a 

violation of his due process rights under the United States and Missouri constitutions. He 

argues that the 2011 amendment to the statute, which removed the phrase “without good 

cause” as an element of the offense, and instead expressed it as an affirmative defense, 

impermissibly shifted the burden of proof to the defendant on an element of the crime. 

The trial court agreed and dismissed the information. The State now appeals, contending 

that the statute is constitutional because due process allows a defendant to bear the 
burden of pleading and proving the affirmative defense of inability to provide support for 

good cause. This Court agrees. The judgment is reversed, and the case is remanded. 

Background and Procedural History

Father was charged with criminal nonsupport in violation of section 568.040, 

RSMo Supp. 2011. The information stated that although Father was obligated to provide 

support for his three children under an order of support issued by the Family Support 

Division, he knowingly failed to make child support payments for the months of April 

2012 through March 2013.

1

 In the probable cause statement, Father’s ex-wife attested 

that despite Father having been ordered to pay $715 per month, he was in arrears in 

excess of 12 months and had not provided any non-monetary support for the children. 

Father filed a motion to dismiss the information and to declare section 568.040.1 

unconstitutional under the Due Process Clause of the 5th and 14th amendments to the 

United States Constitution and article I, section 10 of the Missouri Constitution. The trial 

court granted the motion, dismissed the information, and held that sections 568.040.1, 3, 

and 4 were unconstitutional. It held that the 2011 amendment to the statute, which 

removed the phrase “without good cause” as an element of the offense, created a 

mandatory presumption that a defendant has the ability to provide support—a 

presumption that the defendant must affirmatively disprove by showing good cause. It 

stated that this change effectively removed criminal intent from the statute, requiring the 

 1 While the existence of a child support order is not conclusive as to what constitutes adequate 

support under the statute, it is some evidence of adequate support. State v. Claycomb, --- S.W.3d 

---, 2015 WL 3979728 (No. SC94526) (Mo. banc 2015).
3

State to prove only that a defendant (1) knew there was a support obligation and (2) did 

not provide support. The State appeals.

2

 

Standard of Review

A constitutional challenge to a statute is a question of law, which this Court 

reviews de novo. State v. Young, 362 S.W.3d 386, 390 (Mo. banc 2012). Statutes are 

presumed valid and will be construed in favor of constitutional validity. Glossip v. Mo. 

Dept. of Transp. And Highway Patrol Employees’ Ret. Sys., 411 S.W.3d 796, 801 (Mo. 

banc 2013). The statute will be invalidated if the challenger proves that it clearly and 

undoubtedly violates a constitutional provision. Id. 

Analysis 

Father was charged with criminal nonsupport under section 568.040, which 

provides, in relevant part: 

1. . . . [A] parent commits the crime of nonsupport if such parent knowingly 

fails to provide adequate support which such parent is legally obligated to 

provide for his or her child or stepchild . . . .

* * *

3. Inability to provide support for good cause shall be an affirmative 

defense under this section. A person who raises such affirmative defense 

has the burden of proving the defense by a preponderance of the evidence.

“Good cause” is defined as “any substantial reason why the defendant is unable to 

provide adequate support.” Section 568.040.2(2). 

 2 This Court has exclusive jurisdiction over the appeal because it challenges the constitutional 

validity of a statute. MO. CONST. art. V, sec. 3. 
4

To place the issues in context, a brief history of section 568.040 is helpful. Prior 

to 2009, paragraph 1 of section 568.040 defined criminal nonsupport as “knowingly 

fail[ing] to provide, without good cause, adequate support which such parent is legally 

obligated to provide . . . .” Section 568.040.1, RSMo 2000 (emphasis added). In 2009,

without changing the definitional elements of nonsupport in paragraph 1, the legislature 

amended paragraph 3 to add that “inability to provide support for good cause” was an 

affirmative defense that the defendant must raise and prove by a preponderance of the 

evidence. Section 568.040.3, RSMo Supp. 2009. 

The 2009 amendment was challenged and upheld in State v. Holmes, 399 S.W.3d 

809 (Mo. banc 2013). In Holmes, the defendant argued that because “fail[ure] to provide, 

without good cause, adequate support” was an element of nonsupport in paragraph 1, yet 

“inability to pay for good cause” was an affirmative defense in paragraph 3, the statute 

unconstitutionally required a defendant to disprove an element of the offense. Id. at 813. 

This Court disagreed and upheld the statute: 

Rather than interpret this duplication to make lack of good cause an 

element and then nonsensically impose the burden of disproving it on the 

defendant while characterizing it as a defense rather than an element, the 

most logical interpretation in the circumstances is to interpret it as requiring 

the State to prove lack of good cause while at the same time permitting the 

defendant to offer additional proof that he has good cause.

Id. at 814. Despite the confusion the 2009 amendment created, Holmes found that the 

legislature was constitutionally permitted to draft the statute in a manner that addressed 

“good cause” in overlapping ways. Id. In attempting to clarify legislative intent, the 

Court speculated that the legislature may have intended for “good cause” to be an 
5

affirmative defense rather than an element of the offense. Id. at 813. This objective 

could have been accomplished, the Court stated in dicta, if the legislature had removed

the phrase “without good cause” from the elements of the crime in paragraph 1 at the 

same time it added the affirmative defense to paragraph 3. Id. at 814.

Indeed, that is what the legislature did in 2011. The 2011 amendment, which was 

in effect when Father was charged in 2014, removed the phrase “without good cause” 

from the elements in paragraph 1 but retained “inability to provide support for good 

cause” as an affirmative defense.

3

 Holmes, 399 S.W.3d at 814. As such, criminal 

nonsupport may occur when a parent “knowingly fails to provide adequate support.” 

Because the 2009 version of section 568.040 governed in Holmes, the Court specifically 

declined to discuss the constitutional validity of the 2011 amendment. Id. at 814 n.3. 

That is the question now before the Court.

The State argues the trial court’s judgment finding a due process violation was in 

error. It contends that the concept of good cause under the 2011 amendment is expressed

as an affirmative defense, and that due process permits a defendant to bear the burden of 

proof on affirmative defenses. It argues that when “without good cause” was removed as 

an element in 2011, no mandatory presumption of ability to pay resulted nor was there

any other criminal intent implied in the statute apart from “knowingly.” Father counters 

that the trial court was correct and that, due to a legislative purpose to punish only 

 3 The Holmes decision mistakenly referred to this amendment as having taken place in 2012. 

The amendment was actually effective August 28, 2011, and included in the 2011 cumulative 

supplement to the Revised Missouri Statutes.
6

recalcitrant parents, the ability to provide support must be an implied element of the 

offense. He contends that it is not the knowing failure to support that invokes liability 

but, instead, the knowing failure coupled with the ability to support. 

Father’s argument is misplaced as it is squarely at odds with the plain language of 

section 568.040. After the 2011 amendment, “without good cause” is not a definitional 

element of criminal nonsupport. Rather, the culpable mental state is “knowingly,” and 

there is no requirement that a defendant act with criminal intent. Father may well believe 

that it is a bad policy to allow the knowing failure to provide support alone to be sufficient

for criminal liability because the purpose of section 568.040 is to punish only recalcitrant 

parents. Yet it is precisely that purpose that is addressed by the legislature’s choice to 

provide the financially unable parent with the affirmative defense of good cause. 

Missouri is not alone in structuring its statute in this manner.

4

 Regardless of the wisdom 

of the policy, Father has offered no compelling authority why the legislature was

constitutionally prohibited from defining “nonsupport” as the knowing failure to provide 

adequate support. This Court agrees with the State and finds that “without good cause” is

 4 Language similar to “without good cause,” expressed as an element of the offense, or “inability 

to provide support for good cause,” as an affirmative defense, is recognized by the criminal 

nonsupport statutes in all 50 states and the District of Columbia as necessary to differentiate 

“deadbeat parents from dead broke parents.” See Maureen Atwell, The Use of Social Media 

Evidence in Criminal Child Support Prosecutions, 7 PHOENIX L. REV. 1, 9 (2013) (internal 

quotations omitted). Today, Missouri and nine other states elect to express the idea of good 

cause, in some fashion, as an affirmative defense for the defendant to prove: Arizona, Arkansas, 

Connecticut, Delaware, Minnesota, Nevada, Ohio, Oregon, and Utah. 
7

not an implied element of section 568.040. As a result, the burden of proof was not 

shifted to Father on any element of the offense.5

The question then remains whether it is permissible for the legislature to place 

the burden of proof on a defendant to plead and prove by a preponderance of the 

evidence the affirmative defense of inability to provide support for good cause. The

answer clearly is yes. In Patterson v. New York, the United States Supreme Court noted 

that at common law, the burden of proving affirmative defenses, as well as all 

“circumstances of justification, excuse or alleviation” rested on the defendant. 432 U.S. 

197, 202 (1977) (quoting 4 W. Blackstone, Commentaries *201). Patterson held that 

the Due Process Clause was not violated by placing the burden on the defendant to 

prove, in a second-degree murder case, the affirmative defense of acting under the 

influence of extreme emotional distress. Id. at 205-06. It stated that “[p]roof of the 

nonexistence of all affirmative defenses has never been constitutionally required,” and 

that the State was not required to disprove “every fact constituting any and all 

affirmative defenses related to the culpability of an accused.” Id. at 210. This analysis 

 5 Father’s reliance on the United States Supreme Court decision of Hicks v. Feiock is misplaced. 

485 U.S. 624 (1988). In Hicks, the defendant challenged California’s civil contempt statute after 

he was held in contempt for failing to comply with a court order to make child support payments. 

Id. at 626. A California state court had previously interpreted the statute and found that 

“inability to comply” was not an affirmative defense but, rather, was an element of contempt that 

the statute required the contemnor to prove. Id. at 629. The Supreme Court remanded the case 

to determine whether the contempt proceeding was criminal or civil, but it suggested that the 

statute, as construed by the California court, would violate due process if applied in a criminal 

proceeding. Id. at 637, 641. Father relies on this dicta. However, the Supreme Court made it 

clear that it was deferring to the California court’s interpretation of its own statute. That 

interpretation is inapposite to section 568.040, in which “without good cause” is not an element 

of the crime and “inability to provide support for good cause” is explicitly listed as an 

affirmative defense. Hicks does not assist Father.
8

is consistent with Missouri law. See Section 556.056(2) (defendant has the burden of 

persuasion that an affirmative defense is more probably true than not); State v. 

Strubberg, 616 S.W.2d 809, 816 n.6 (Mo. banc 1981) (defendant bears burden of 

production and persuasion on affirmative defense).

Conclusion

Section 568.040 is fully compliant with constitutional standards of due process. 

The judgment of the trial court is reversed, and the case is remanded.

___________________________

Mary R. Russell, Judge

All concur.