People v. Likine

Michigan Court of Appeals · 2012 · Criminal Law

Criminal Lawfelony nonsupportdue processright to present a defensecollateral attackMCL 750.165child supportstrict liability

Facts

After divorce proceedings, defendant's child support obligation was increased by court order to $1,131 per month, retroactive to June 1, 2005, after hearings in which income was imputed to her based on evidence of her standard of living. Defendant's payments were sporadic and minimal, and by February 29, 2008, her arrearage exceeded $40,000. When criminal charges were brought under MCL 750.165, the prosecution moved in limine to exclude evidence of her alleged inability to pay, and the trial court granted that motion. Defendant was convicted and argued on appeal that due process required allowing her to present inability to pay as a defense.

Issue

Does due process under the Michigan or federal constitutions require that a defendant charged with felony nonsupport under MCL 750.165 be allowed to present evidence that she was unable to pay the support ordered? Also, was the prosecutor's rebuttal argument improper?

Rule

For felony nonsupport under MCL 750.165, the prosecution must prove that the defendant was ordered to pay support, appeared in or received personal notice of the action in which the order was issued, and failed to pay the required support at the time or in the amount ordered. Evidence of inability to pay is not relevant to those elements and may not be used in the criminal prosecution to challenge the amount of the underlying support order; such a claim must be raised in the civil court with continuing, exclusive jurisdiction over the support order.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Columbus, Ohio, a domestic relations court increased Dana Mercer’s child-support obligation after an evidentiary hearing at which both parents testified about Dana’s finances. A year later, Dana was prosecuted for felony nonsupport after making almost no payments, and she sought to testify at trial that she had lost work and could not afford the ordered amount.

Should the trial court admit Dana’s inability-to-pay evidence as a defense in the criminal case?

Explanation. The majority held that when the support amount has already been fixed in prior civil proceedings, evidence that the defendant could not afford the ordered amount is not relevant to the criminal elements: existence of the support order, notice or appearance in the issuing action, and failure to pay as ordered. Using such evidence in the criminal trial would improperly challenge the underlying civil judgment, so exclusion does not violate due process or the right to present a defense.