Michigan Supreme Court Acknowledges an "Impossibility" Defense to Felony Child Support

This blog has covered the child support saga of Ms. Selesa Likine.  Her felony child support conviction was just reversed by the Michigan Supreme Court, and her case has been sent back down to the Oakland County Circuit Court.

The family court was created by statute pursuant to the Michigan Constitution back in 2000; now, there is a family court division for every county in Michigan.  Family courts issue support orders that obligate a parent to pay a specified sum each month for the support of their minor children.

Ever since parents have been ordered to pay child support, there have been those who cannot or will not make their required  payments.  There are different reasons for not paying: some withhold payment from their ex-spouse for revenge; others simply cannot afford to pay, or do not put a high priority on their child support obligation.  [e.g. the "Worm" aka Dennis Rodman.]  Still others find it impossible to satisfy their court-ordered obligation based on hard economic circumstances.

Regardless of the reason, when a child support payor fails to pay pursuant to a court order, an arrearage builds-up and the courts take notice.  Quite apart from the family court, the county circuit courts of general jurisdiction are the courts where felony criminal matters are prosecuted.

The Michigan Penal Code has a law on the books known as "failure to pay child support"; a four-year felony.  This felony has always been considered a "strict liability" crime, meaning that there is no defense to the charge once the prosecutor proves that the family court issued a support order and the payor, for whatever reasons, did not pay.

On Tuesday, the Michigan Supreme Court addressed the felony child support statute in People v Likine.  This case is significant to the extent that it expressly reverses a Court of Appeals decision that precludes a defendant from asserting any "ability to pay" defense whatsoever.  The Likine Court held that "impossibility to pay" is an affirmative defense on which a jury can be instructed at a trial provided certain offers of proof are tendered.  Also, the Court reaffirmed that, despite the availability of this affirmative defense, felony child support remains a "strict liability" crime.

In the initial divorce case, Selesa Likine was diagnosed with depressive schizoaffective disorder.  Family Court Judge Linda Hallmark initially ordered her to pay only $54 per month in support; a relatively low amount.

Likine's support was increased, first to $184 per month then to $1131 per month, on the basis of "imputed income".  At a support hearing conducted before the FOC Referee, evidence revealed that Ms. Likine made [false] representations of high income on two mortgage applications in order to purchase an expensive home.

Based on these representations, and based on the  projected earnings of someone paying on that large a mortgage, the FOC Referee imputed income of $5000 per month to Likine.  Of course, this was a fiction; not only did Likine never earn that much income, she basically had no chance whatsoever to satisfy her new increased child support obligation.

Enter the criminal charge against Ms. Likine.  When her lawyer tried to "tell it to the judge", and then to the jury, about her lack of income, it was too late.  The trial judge relied on the holding of a Michigan Court of Appeals case [People v Adams] precluding Likine from presenting any evidence on her so-called "inability to pay."

Bottom line: now, a felony defendant is able to offer proof of an "impossibility" to pay, but not an inability to pay.  The latter concerns must still be addressed to the family court.  The reason is that our criminal jurisprudence requires a "mens rea" or "guilty mind" as a required component to every crime listed in the Michigan Penal Code.

Note to attorneys: The Likine case was a companion case with two other consolidated cases.  In those other cases, the felony child support convictions of the child support payors were NOT reversed on the basis that neither defendant had preserved the "impossibility to pay" issue in the trial court.  

Just sayin; had they done so, those convictions also may have been reversed.

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Posted in: child support,divorce lawyer,felony child support,Judge Linda Hallmark,Michigan Penal Code,Michigan Supreme Court,Oakland Circuit Court,Selesa Likine

Convicting the Child Support Payor for Non-Payment

In June, the Oakland County Bar Association has asked me to present to fellow lawyers on the topic of felony child support cases.   Like any area of the law, what at first appears simple, really a matter of strict liability, takes on complexity once you start looking at the details.

Over the past ten years, prosecutors began addressing the problem of unpaid child support in Michigan, taking cases from the family courts, and charging the errant payors with felonies in the circuit trial courts.  As a result, millions of dollars have been collected that otherwise would not have been paid.  Also, dozens of payors, both Fathers and Mothers, have gone to jail; some to prison.

During this wave of prosecutions, many delinquent payors have challenged the constitutionality of Michigan's felony non support statute on the basis that it essentially creates a "debtor's prison".  The "inability-to-pay" defense, viable at one time, was removed by the legislature with the passage of the most recent version of the statute in November 1999.

The constitutionality of this version of the statute, particularly the removal of the "inability-to-pay" clause, was tested a few years back in the People v Meldman case; a case from Oakland County.  Defendant challenged the family court's findings on the imputation of his income, and challenged the felony child support statute on its face.  Conviction affirmed.

The Law Blogger covered the basic ground on this subject some years ago, in these earlier posts: 02/15/2010 and 12/14/2010.  These posts covered the UM Law's innocence project and their challenge to the felony child support act's constitutionality.

The case we've been waiting for, People v Likine, also from Oakland County, was fully briefed for the Michigan Supreme Court last April [including amicus briefs from both the Prosecuting Attorneys Association of Michigan, and a powerful group of Michigan Criminal Law Professors], argued in October, and the High Court's opinion deciding the case is expected any day now.

Likine deals, in astounding depth, with the bed-rock constitutional issue of whether you can be jury tried for a crime involving non-payment, without being able to put on a defense of an inability, or even an impossibility, to pay the court-ordered obligation.  Related to this issue is whether a defendant can collaterally attack a statute, introducing evidence from the family court [on issues of payment history, income levels and availability of funds] into a court of general jurisdiction: i.e. the Oakland County Circuit Court.

One more recent development since that post is last June's SCOTUS decision in Turner v Rogers, holding that a child support payor facing incarceration for non-payment is afforded legal counsel under the Sixth Amendment of the United States Constitution.  A rare example of SCOTUS reviewing a state court decision with roots in family law jurisprudence.

Great stuff.  Stay tuned and we will be sure to convey how the Michigan Supreme Court views all this.  Hopefully they will issue their Likine decision prior to the OCBA presentation to my colleagues...

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Posted in: child support,debtor's prison,Louis Meldman,Michigan Supreme Court,Oakland Circuit Court,Oakland County Bar Association,OCBA,SCOTUS,Selesa Likine

Felony Child Support Cases Get Review by Michigan Supreme Court

Last week, the Michigan Supreme Court granted leave on three cases challenging the constitutionality of the Felony Non-support Act; the statute criminalizing the failure to pay timely child support to the custodial parent.

This blog has covered the felony child support issue relative to the People v Likine case from Oakland County Circuit Court.  That case, along with People v Harris (from the Muskegon Circuit Court) and People v Parks (Ingham County), were granted leave for further appeal. 

A decision from the Supreme Court is expected sometime in 2011.

In Harris, Justice Robert Young, Jr. dissented from the majority of his colleagues in granting leave on the grounds that the appellant pled guilty in the trial court, cutting a deal on his child support payments to avoid jail.

One of the defenses that will be addressed in all three pending cases is whether a child support payor charged with this felony can raise the issue of his or her “inability to pay” in the criminal court.  Of course that defense is often raised in family court. 

Once you’ve been charged with felony child support, however, the “inability to pay” defense is unavailable per the Michigan Court of Appeals holding in the published case of People v Adams.  In granting leave for further appeal, the High Court expressly directed the parties to address the constitutionality of the Adams holding.

Generally, if you are having difficulty keeping your child support obligation current, you should immediately seek relief in the family court before you build an arrearage. 

An arrearage, if significant, can lead to a felony charge.  Technically, a day late and a dollar short is all that is required by the prosecutor to charge a case.

If you’ve already been charged, then you can still attempt to seek relief from the family court in the form of a reduced ongoing monthly obligation and, with the payee-parent’s consent, a waiver of interest and service fees.  There must be some basis for modification other than you simply ignoring your obligation.

We will keep our readers updated on this strand of cases.

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Posted in: attorney,family court,family law,felony child support,Justice Robert P. Young,Michigan Court of Appeals,Michigan Supreme Court,Selesa Likine

UM Law School Challenges Constitutionality of Felony Child Support Statute

The mighty UM Law School has its hands all over the recent constitutional challenge to the felony child support statute.  The case was originally charged by UM Law Alumni and Michigan Attorney General Mike Cox.  The defendant-appellant in the case is represented by the Michigan Innocence Project, run out of the UM Law School by Professor David Moran.

The case, People vs Likine, was the subject of a one-day jury trial in the Oakland County Circuit Court back in November 2008.  Years earlier, Selesa Likine was ordered to pay child support for her three minor children pursuant to her divorce proceedings; also in Oakland County.  The criminal case against Likine charged that she fell behind on the support payments from 2005 through 2008, creating arrears in the amount of nearly fifty thousand dollars.

Ms Likine attempted to assert the defense of an "inability to pay" the support ordered by the family court.  She claimed disability via the Social Security Administration stemming from her diagnosis of Schizoaffective Disorder and Major Depressive Disorder.  Likine also asserted that she was unemployed due to a lengthily hospitalization at the beginning of the charging period.  She further claimed that her support obligation was erroneously calculated by the family court, as it was based on a "phantom" imputed income of $5000 per month; a wage she claims she never earned in her entire life.

The felony child support statute is one of strict liability.  The Michigan Court of Appeals ruled in a 2004 published case (People v Adams) that a defendant cannot assert a defense at trial of his or her, "inability to pay" the court-ordered child support.

Accordingly, in the Likine case, the Attorney General requested trial judge John McDonald to preclude Likine from introducing any of the above facts regarding her disability and resulting lack of income from jury consideration.  The AG's motion was granted based on the Court of Appeals' Adams ruling.

Just prior to the beginning of her criminal trial, Likine's attorney moved for reconsideration of Judge McDonald's evidentiary ruling; this time arguing that precluding her from presenting evidence of her "ability to pay" and of her employment history, violated Likine's constitutional Due Process rights under the 14th Amendment to the United States Constitution.  The motion was again denied.

Not surprisingly, Likine was convicted by the jury of failing to pay court-ordered child support and sentenced to one-year probation.  When the jury was deliberating her case, however, they sent out a note to Judge McDonald asking for information about Ms Likine's employment history.  Due to his earlier rulings in the case, Judge McDonald refused to answer the jury's query.

Following her jury trial, Likine secured appellate representation from UM's Professor Moran, who filed a motion for new trial; this time asserting that Likine's conviction violated the Michigan Constitution.  McDonald, stating that he sometimes disagreed with the Court of Appeals' Adams decision, nevertheless denied the motion.

In her appeal currently pending before the Michigan Court of Appeals, Likine relies on a Michigan Supreme  Court decision from 1889 which held that statutes cannot criminalize conduct which, through no fault of the defendant, is impossible to avoid.  Professor Moran asserts that such a criminal law lacks the requisite, "voluntary actus reus" (bad act).

Along the same lines, Professor Moran raises a claim of violation of federal Due Process under the U.S. Constitution.  In this fashion, Likine argues on appeal that the Court of Appeals' Adams decision wrongly eliminates the actus reus requirement of the felony child support statute, rendering it unconstitutional on its face.

In response, the Attorney General asserts that Adams remains controlling in felony child support convictions. The AG's argument is that the Michigan Constitution is not offended when a "prior judicial determination" establishes a payment obligation for which it is a crime to ignore.  Since Likine's support obligation was established by the family court, she was afforded Due Process.

In a somewhat surprising move given the high-powered counsel on both sides, the Court of Appeals has submitted the case to a 3-judge panel for decision without the benefit of oral argument.  The order to dispose of the case solely on the briefs was issued last week, despite both sides filing timely briefs which requested oral argument.

The losing side on this one will probably try to take the issue before the Michigan Supreme Court.

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Posted in: Attorney General Mike Cox,felony child support,Michigan Innocence Project,Oakland Circuit Court Judge John McDonald,Professor David Moran,Selesa Likine,University of Michigan Law School