Spouses and parents have obligations under the law to support the other spouse and their children. Under the following circumstances, the family court can compel an individual to pay support:
- The court has authority to award spousal support to either party in a divorce action pursuant to MCL 552.23(1).
- The court has authority to award support to the children in care of the custodial parent (whom the individual never married) pursuant to MCL 552.451a.
- The court has authority to award support to be paid to the State of Michigan as reimbursement for providing support, in whole or in part, to the custodial parent and/or the minor children, pursuant to MCL 552.451b.
According to MCL 552.631, if a person is ordered to pay child support and fails or refuses to obey and perform the order, the recipient of support or the Friend of the Court office can commence a civil contempt proceeding against that person. Upon finding a payer in contempt of court under MCL 552.633, the court may immediately enter an order that does one or more of the following:
- (a) Commits the payer to the county jail or an alternative to jail.
- (b) Commits the payer to the county jail or an alternative to jail with the privilege of leaving the jail or other place of detention during the hours the court determines, and under the supervision the court considers, necessary for the purpose of allowing the payer to satisfy the terms and conditions imposed under section 37 if the payer’s release is necessary for the payer to comply with those terms and conditions.
- (c) Commits the payer to a penal or correctional facility in this state that is not operated by the state department of corrections.
- (d) Apply any other enforcement remedy authorized under this act or the friend of the court act for the nonpayment of support if the payer’s arrearage qualifies and the evidence supports applying that remedy.
- (e) Orders the payer to participate in a work activity. This subdivision does not alter the court’s authority to include provisions in an order issued under this section concerning a payer’s employment or his or her seeking of employment as that authority exists on August 10, 1998.
- (f) If available within the court’s jurisdiction, orders the payer to participate in a community corrections program established as provided in the community corrections act, 1988 PA 511, MCL 791.401 to 791.414.
- (g) Except as provided by federal law and regulations, orders the parent to pay a fine of not more than $100.00. A fine ordered under this subdivision shall be deposited in the friend of the court fund created in section 2530 of the revised judicature act of 1961, 1961 PA 236, MCL 600.2530.
- (h) Places the payer under the supervision of the office for a term fixed by the court with reasonable conditions, including, but not limited to, 1 or more of the following:
- (i) Participating in a parenting program.
- (ii) Participating in drug or alcohol counseling.
- (iii) Participating in a work program.
- (iv) Seeking employment.
- (v) Participating in other counseling.
- (vi) Continuing compliance with a current support or parenting time order.
- (vii) Entering into and compliance with an arrearage payment plan.
According to MCL 552.637(1), an order of commitment must be entered “only if other remedies appear unlikely to correct the payer’s failure or refusal to pay support.” If the judge finds the county jail to be the appropriate punishment, then, according to MCL 552.637(4), the payer can be sentenced up to 45 days for the first adjudication of contempt and up to 90 days for a subsequent adjudication of contempt.
While the payee or the Friend of the Court may pursue civil remedies, the prosecuting attorney has the authority to institute criminal proceedings against the payer for failure to pay support. An individual is guilty of criminal nonsupport contrary to MCL 750.165 if the prosecutor can prove all of the following elements beyond a reasonable doubt:
- First, that there is a court order that requires the defendant to pay support for his or her former spouse, current spouse or children.
- Second, that the individual appeared in the action or was personally served with notice of the action in which the support order was issued.
- Third, that the individual failed to pay support in the amount or at the time stated in the order.
A conviction for felony nonsupport is punishable by up to 4 years in state prison or a fine up to $2,000.00, or both. A person charged with felony support should not expect to leave jail at the onset of the case on his or her personal recognizance as MCL 750.165(3) has strict rules regarding bond:
- “Unless the individual deposits a cash bond of not less than $500.00 or 25% of the arrearage, whichever is greater, upon arrest for a violation of this section, the individual shall remain in custody until the arraignment. If the individual remains in custody, the court shall address the amount of the cash bond at the arraignment and at the preliminary examination and, except for good cause shown on the record, shall order the bond to be continued at not less than $500.00 or 25% of the arrearage, whichever is greater. At the court’s discretion, the court may set the cash bond at an amount not more than 100% of the arrearage and add to that amount the amount of the costs that the court may require under… the support and parenting time enforcement act…”
The standards for prosecuting or defending against felony nonsupport have been shaped by the following recent appellate cases:
- People v Monaco, 262 Mich App 596; 686 NW2d 790 (2004), aff’d in part and rev’d in part on other grounds, 474 Mich 48; 710 NW2d 46 (2006) – The Defendant was charged with felony nonsupport more than eight years after his court-ordered support obligation ended. He moved to quash the bindover of his felony charge after the preliminary exam on the basis that his prosecution violates the six-year statute of limitations under MCL 767.24(5). The trial court and the Michigan Court of Appeals refused to dismiss the charge, holding that the felony nonsupport is a “continuing violation” every day that the balance is not paid. The Michigan Supreme Court reversed that portion of the decision, holding that “the crime of felony nonsupport is complete when an individual fails to pay support in the amount ordered at the time ordered.” The last payment ordered was due eight years ago, well after the six-year statute of limitations lapsed, so the charges ought to have been dismissed.
- People v Herrick, 277 Mich App 255; 744 NW2d 370 (2007) – The Defendant was charged with felony nonsupport but the district court judge dismissed the charge at the preliminary exam because no evidence was shown that the Defendant had notice of his support obligations. The prosecutor appealed on the basis that the elements of nonsupport are exclusively in MCL 750.165(1) and do not include the notice requirements in MCL 750.165(2). The Court of Appeals disagreed and held that the statute should be taken as a whole and prosecutors are required to show that the Defendant either had appeared In court or received notice by personal service of the proceeding in which the order was issued.
- People v Likine, 492 Mich 367; 823 NW2d 50 (2012) – The Defendant appealed her conviction for felony nonsupport on the basis that the trial court wrongfully granted the prosecutor’s motion in limine precluding the Defendant from presenting evidence of her inability to pay. The Michigan Supreme Court affirmed both the trial court and the Court of Appeals in holding that the right to present a defense is not an absolute right in that it extends only to relevant and admissible evidence. “…[E]vidence of the inability to pay was not relevant to any fact at issue” because it does not negate any of the elements of felony nonsupport. The proper forum for raising inability to pay claims are in the family court that issued the order through seeking a modification of the order. “Accordingly, Defendant was not denied due process on the ground that, because the offense imposes strict liability, she was prevented from proving that her failure to pay child support in compliance with the court order was involuntary.”
After the Likine decision, Model Criminal Jury Instruction 34.5 was adopted in February 2013 and laid out the criteria for an individual to raise the impossibility defense to felony nonsupport:
- “(1) The defense of impossibility has been raised by the defendant. This is an affirmative defense, and the defendant has the burden of proving this defense by a preponderance of the evidence. This means that the defendant must satisfy you that it was more likely than not that it was truly impossible to comply with the family court order.”
- “(2) In order to prove this defense, the defendant must establish that [he / she] did everything reasonably possible to provide for [his / her] child/children and to have arranged [his / her] finances in such a way that prioritized [his / her] parental responsibility and that, despite those efforts, it was truly impossible for the defendant to comply with the family court order. The defendant must explore and eliminate all the reasonably possible and lawful avenues of obtaining the revenue to comply with the support order.”
- “(3) In determining whether the defendant has established the defense of impossibility, you should consider whether the defendant has diligently sought employment; whether [he / she] could have secured additional employment; whether [he / she] had investments that could have been liquidated; whether [he / she] received gifts or an inheritance; whether [he / she] had a home that could have been sold or refinanced; whether [he / she] had assets that could have been sold or used as loan collateral; whether [he / she] prioritized the payment of child support over the purchase of nonessential items; and whether [he / she] took reasonable precautions to guard against financial misfortune and arranged [his / her] financial affairs with future contingencies in mind, in accordance with one’s parental responsibility to one’s child.”
- “(4) You may consider the defendant’s conduct and responses in the family court in determining the possibility of compliance with the support order and to evaluate the defendant’s good-faith efforts.”
- “(5) If you find that the defendant has proved the defense of impossibility by a preponderance of the evidence, then you must find the defendant not guilty. If, however, [he / she] has failed to prove impossibility, then [his / her] impossibility defense fails.”
A felony conviction can have significant consequences that may include a lengthy probation, heavy fines or even serving time in state prison. If you are accused of failure to pay support, do not hesitate to contact the attorneys at Kershaw, Vititoe & Jedinak PLC for an aggressive criminal defense against these serious charges.