ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Tuesday, August 6, 1996 TAG: 9608060058
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: LESLIE TAYLOR STAFF WRITER
NOTE: Lede
Lynda Murphy celebrated a bittersweet victory last year when state child support officials in Roanoke handed her a check for $12,486.49 - back payment owed by her ex-husband, James D. Murphy Jr.
In 1990, a court in Texas ordered him to pay $290 a month in support for his daughter, Erin. He quit paying in 1991. For years, Lynda Murphy tracked his state-to-state moves in pursuit of the support he owed.
His actions earned him a spot on Virginia's ``10 Most Wanted" list of child support evaders in 1994. Last year, the FBI arrested him in Florida and brought him to Virginia, where he was convicted on charges of "willfully" violating the federal child-support recovery act.
Since then, Lynda Murphy - who lives in Roanoke with 15-year-old Erin - has received regular monthly checks from him.
Now she wonders how long that will continue.
Last month, U.S. District Judge Samuel Wilson in Roanoke overturned James Murphy's conviction, ruling that he had been tried in the wrong place.
Lynda Murphy gets to keep the money her ex-husband paid in the past year. She has invested most of it for their daughter's education.
"By all accounts, Murphy has shirked financial responsibility for his daughter," Wilson wrote. "However, as a criminal defendant with statutory and constitutional venue rights, Murphy should not have been prosecuted in this district because venue does not lie here. The [location] of the crime of willful failure to pay past-due child support was not in Virginia, as Murphy was not directed to make those payments here."
Murphy, after being convicted in U.S. Magistrate's Court in Roanoke, appealed to the U.S. District Court on the grounds of improper venue - that Virginia had no right to prosecute him - and that the law was unconstitutional.
Wilson offered no opinion on the law's constitutionality.
The Child Support Recovery Act of 1992 targets parents who move out of state to avoid paying child support. The law allows authorities to deal with out-of-state parents through federal courts rather than having to negotiate differing laws in other states.
"In this case, however, Murphy did not move away from Virginia to avoid making payments," Wilson wrote. "On the contrary, he never lived in Virginia. The finding that venue lies in Virginia, despite the fact that Murphy never lived in Virginia, did not move from Virginia to escape support payments, and was neither ordered to make payments in Virginia nor ordered by a Virginia court to make payments, represents a substantial departure from traditional venue principles."
But Lynda Murphy said Wilson's decision seemed counter to the law's intent.
"After all the work everyone's done to get the law enacted, if [Wilson's decision] holds, the law is worthless unless we can get beyond the venue issue," she said. "It's not like 100 years ago, when nobody moved. We're a pretty mobile society."
Assistant U.S. Attorney Julie Dudley, who prosecuted the case, declined to comment on the decision. But she said Wilson's decision is the first in the country, on this particular law, that has been based on venue.
Dudley said she is awaiting word from the Justice Department's appellate division on whether she can appeal.
The federal child support law "is pretty broad. There is nothing specific in the statute itself dealing with venue," she said.
Ernest Love, regional administrator for the regional child support enforcement office in Roanoke, said his office would continue to refer cases to federal authorities, despite the court decision.
James Murphy was not easy to track down, police said.
In 1994, after finding out while living in Niagara Falls, N.Y., that he was listed among Virginia's "Top 10 Most Wanted," Murphy telephoned the state and made arrangements to resume support payments.
Two weeks later, he disappeared again, without paying anything. FBI agents arrested Murphy in Bradenton, Fla., in January 1995. He was convicted and sentenced to five years' federal probation, contingent on his continuing to make monthly child support payments. He has returned to Bradenton.
Lynda Murphy said she called her ex-husband as soon as she found out that his conviction had been overturned.
"He assured me everything would remain the same," she said. "Am I assured? We'll see."
LENGTH: Medium: 85 lines ILLUSTRATION: PHOTO: WAYNE DEEL/File 1995. Lynda Murphy and her daughter,by CNBErin, get to keep the $12,400 a court ordered her ex-husband to pay.
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