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