Background
Marlon Jackson, Sr. was ordered by the Larue District Court in May 2019 to pay $231.50 per month in child support for his minor son K.I.J., including ongoing support and payments toward a pre-existing arrearage. Over the period from March 2017 through March 2023, Jackson paid only $1,528.35 of his obligation. A Larue County Grand Jury indicted him in April 2023 on one count of flagrant non-support under KRS 530.050, based on an arrearage that the Commonwealth ultimately fixed at $7,595.28 after electing to exclude the earlier ordered arrearage from the charged amount.
At trial in April 2025, the Commonwealth presented testimony from the child support caseworker, who described Jackson’s payment history, wage garnishments during periods of employment, and her inability to identify any reason he could not pay. Jackson testified on his own behalf, explaining that he had fourteen children and eight child support obligations, that he served primarily as a homemaker while his wife worked, that his income consisted largely of public assistance, and that he had twice been denied SSI disability benefits based on mental health claims. He acknowledged buying and reselling cars and other goods as a side activity.
The trial court denied Jackson’s motions for a directed verdict at the close of the Commonwealth’s case and again at the close of all evidence. The jury convicted Jackson and sentenced him to five years in prison. He appealed, arguing the Commonwealth failed to prove he could “reasonably provide” the court-ordered support — a required element of the offense — and separately raised, for the first time on appeal, a challenge to alleged errors in the child support worksheet.
The Court’s Holding
The Kentucky Court of Appeals affirmed the conviction in full. Applying the directed verdict standard from Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991), the court held that it was not clearly unreasonable for the jury to find Jackson guilty. The court pointed to Jackson’s demonstrated capacity to manage a household, repair and sell vehicles, and obtain employment through agencies, as well as the denial of his disability benefits applications, as evidence supporting the jury’s conclusion that he could reasonably have paid child support but chose not to. The caseworker’s testimony that she was unaware of any barrier to payment further supported the verdict.
The court also rejected Jackson’s unpreserved challenge to the child support worksheet. Even reviewing under the palpable error standard of RCr 10.26, the court held that the argument constituted an impermissible collateral attack on the underlying child support order. Citing Gutierrez v. Commonwealth, 163 S.W.3d 439 (Ky. 2005), the court reaffirmed that a valid court order cannot be collaterally attacked in a criminal prosecution for its violation unless the issuing court lacked subject matter or personal jurisdiction — a showing Jackson did not make.
Key Takeaways
- The “reasonably provide” element of Kentucky’s flagrant non-support statute can be established circumstantially — evidence of employment capacity, functional daily activities, and denied disability claims is sufficient to support a jury finding of ability to pay.
- A defendant’s failure to seek modification of a child support order under KRS 403.212 may be used by the Commonwealth to undercut claims of inability to pay.
- A defendant in a flagrant non-support prosecution cannot collaterally attack the underlying support order by arguing it was incorrectly calculated, unless the issuing court lacked jurisdiction.
- Arguments not preserved at the trial level will be reviewed only for palpable error, and a collateral attack on a valid court order will not meet that standard.
Why It Matters
This decision reinforces that Kentucky prosecutors need not produce direct proof of a defendant’s financial resources to sustain a flagrant non-support conviction. Circumstantial evidence of work capacity and daily functioning — even absent formal employment records — can be enough for a jury to reject an inability-to-pay defense, particularly when the defendant never sought modification of the support order and disability claims were administratively denied.
The ruling also draws a clear line against using criminal proceedings as a vehicle to relitigate the terms of civil support orders. Defense attorneys in flagrant non-support cases should be aware that challenges to the underlying order’s validity or calculation must be raised in the civil proceeding, not as a defense to the criminal charge, or they risk being barred as collateral attacks.