Request By:
Honorable Paul F. Fauri
General Counsel
Department for Human Resources
Frankfort, Kentucky 40621
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your recent letter in which you ask whether KRS 514.040, the theft by deception statute, can be used against parents who use cold checks to make child support payments to the Department. You state that AFDC payments are routinely sent for the children and that the Department is given the right under KRS 205.720 to obtain reimbursement from the parent ordered by a court to make child support payments.
The pertinent language of KRS 514.040 provides that:
(1) A person is guilty of theft by deception when he obtains property of another by deception with intent to deprive him thereof. A person deceives when he intentionally:
(e) Issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee.
(4) For purposes of subsection (1), an issuer of a check or similar sight order for the payment of money is presumed to know that the check or order, other than a postdated check or order, would not be paid, if:
(a) The issuer had no account with the drawee at the time the check or order was issued; or
(b) Payment was refused by the drawee for lack of funds, upon presentation within 30, days after issue, and the issuer failed to make good within 10 days after receiving notice of that refusal.
From the foregoing statute it is necessary that the issuer of the check obtain property of another by deception. Under the facts you set out, the parent does not receive property as a result of the issuance of the cold check but is only paying off a debt he owes to the Department. In other words since the AFDC payments are routinely paid to the child regardless of any other factor, the parent has not obtained property for his child as a result of the cold check. See Patterson v. Commonwealth, Ky. App., 556 S.W.2d 909 (1977), cert. den. 435 U.S. 970, where it is stated that the statute does not punish for a debt in violation of Kentucky Constitution Sec. 18, but rather for a fraudulent act, intent to defraud being an essential element of the crime.
See also Brickey, Kentucky Criminal Law S 14.03 where it is stated that the statute "includes all thefts in which the actor induces another person to part with his property by means of deceit. * * * a defaulting debtor . . . may not be convicted solely upon evidence that the payment . . . was not forthcoming. This is essentially a problem of regulation of economic relationships which can be adequately dealt with by civil remedies. There must be additional evidence that the actor intentionally obtained property by deceptive means and that the intent to deceive existed at the time the actor obtained the property. * * * this provision is of more limited application than the former "cold check" law, in that the Penal Code requires that the actor use this method of deception to obtain the property of another."
We, therefore, do not find that the procedure now employed could form the basis for a criminal prosecution.
You also suggest that your procedure might be changed in order that the issuance of the AFDC checks would be conditioned upon receipt of the child support check from the debtor-parent.
Under this proposed procedure we find that the debtor-parent would be obtaining "property of another by deception with intent to deprive him thereof" if the parent is aware of this procedure and if the AFDC check is issued in reliance on the parent's check and before it is ascertained that the check is in fact "cold" . The parent would be obtaining property of the Department for his child, and the act would be done by deceit if the other provisions of the statute are met. Compare Brickey, Criminal Law of Kentucky 14.03 p.155 where an analogous situation is presented: ". . . if the defendant issues a check drawn on a fictitious account and deposits the check in a bank in which he has an account, his act of obtaining (i.e., bringing about a transfer or purported transfer of a legal interest) a provisional credit from the depository bank may well bring about the prohibited result."
As to other remedies available against the debtor-parent, there is the nonsupport statute, KRS 530.050, and the civil remedies of garnishment, KRS 425.501 et seq. , and attachment, KRS 426.005 et seq. , after obtaining a judgment, in addition to the right to place a lien against the debtor's personal and real property as set out in KRS 205.745. KRS 205.790 .