In re Lampart
| Decision Date | 31 July 2014 |
| Docket Number | Docket No. 315333. |
| Parties | In re LAMPART. |
| Court | Court of Appeal of Michigan — District of US |
A. Dennis Cossi Law Office, Ironwood (by A. Dennis Cossi) for Diana Alexandroni.
Before: BECKERING, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.
Appellant Diana Alexandroni, the mother and supervisory parent of juvenile respondent Robby Lampart, appeals by delayed leave granted1 the trial court's order denying her motion to modify or cancel a restitution obligation. We reject certain portions of the trial court's reasoning, and therefore reverse that order in part, and remand for further proceedings. We also affirm the order in part, because we at this time agree with the trial court's decision not to cancel or modify the restitution obligation, inasmuch as Alexandroni may have assets, or may in the future have sources of income, other than her Social Security disability insurance (SSDI) benefits, from which her restitution obligation can be satisfied.
In 2007, Lampart, a juvenile at the time, entered a plea of admission to arson. Restitution was ordered in the total amount of $28,210. The trial court subsequently ordered Alexandroni, on behalf of Lampart, to pay restitution, pursuant to MCL 712A.30(15), in the amount of $250 per month. See also In re McEvoy, 267 Mich.App. 55, 57–58, 704 N.W.2d 78 (2005). The trial court further ordered Alexandroni's employer to withhold $62.50 from her wages each week in order to satisfy the restitution obligation.
In September 2009, Alexandroni suffered a heart attack
. Her resultant heart condition left her unemployed. At the time of her heart attack, the unpaid restitution totaled $22,960. Because Alexandroni was unemployed, the wage garnishment of $62.50 that was originally ordered by the trial court terminated.
On April 18, 2011, the trial court held a reimbursement hearing regarding Alexandroni's obligation under the restitution order in light of the fact that garnishment of her wages was no longer available. In an affidavit, Alexandroni averred that she was unemployed and that her only source of income was $730 per month in SSDI benefits.2 Alexandroni argued that under 42 U.S.C. § 407(a), which provides an antiattachment provision for Social Security benefits, the SSDI benefits were exempt from attachment, garnishment, or other court-imposed obligation. 42 U.S.C. § 407(a) provides:
In an opinion and order dated April 27, 2011, the trial court concluded that enforcing a restitution order under the juvenile code, MCL 712A.1 et seq., did not constitute “execution, levy, attachment, garnishment or other legal process.” The trial court concluded that it could consider Alexandroni's SSDI benefits as “income” and enforce the restitution order against Alexandroni personally, through the power of contempt, after the income was in her possession. The trial court reasoned that to hold otherwise would have the effect of making Alexandroni exempt from making payments under the restitution order.3 The court therefore indicated that it would “ consider the family's income of $1275” and, noting that “circumstances have changed and the current order may need to be reassessed,” that it would schedule a new reimbursement hearing “to determine an equitable payment.” That order was not appealed.
On May 12, 2011, the trial court entered an order for reimbursement requiring Alexandroni to pay $150 per month beginning on June 1, 2011, and continuing until the balance was paid in full. That order also was not appealed.
In 2012, Alexandroni filed a motion for relief from judgment under MCR 2.612(C)(1)(d) and (f), seeking to modify or cancel the obligation to make restitution payments. In an opinion and order dated January 25, 2013, the trial court denied that motion, noting that “[t]he crux of this case boils down to whether the Court's action in enforcing a restitution order subject to contempt is ‘other legal process' ” under 42 U.S.C. § 407(a). Citing Washington State Dep't of Social & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003), the trial court applied a narrow definition of the term “other legal process,” and observed that it had “not pursued garnishment or attachment like actions in enforcement.” Aside from applying a narrow definition of “other legal process,” the trial court stated a policy justification for its decision:
[T]he Court cannot reconcile the arguments with a common sense result. That is, how can a Social Security Disability recipient (as opposed to a recipient of SSI, which is minimal and means tested) be exempt when often their income is greater than the working poor who are subject to enforcement. The guidelines promulgated by the collection statute for juvenile courts, MCL 712A. 18(6), specifically mention Social Security Disability benefits as income that can be considered. Those guidelines also start collecting SOMETHING on incomes as low as $100 per week. To allow the exemption argued for would mean that no individual with any court obligation, no speeder, no drunk driver, no felon whose only income was Social Security Disability would ever have to pay restitution or court costs or fines of any nature. That result simply does not make sense. [Citation omitted.]
The trial court denied the motion to modify or cancel Alexandroni's restitution obligation. Noting that Alexandroni had suffered a reduction in household income because of the fact that Lampart was then in placement, such that his SSDI benefits were being received by the state, the trial court indicated that it would “again review the monthly payment status at the next review hearing.” It is this order that is the subject of this appeal.
On appeal, Alexandroni requests that this Court “amend[ ]” the trial court's April 27, 2011 order “to provide that the Social Security benefits of [Alexandroni and Lampart] are exempt,” and that the “obligation requiring payment of restitution be canceled” because Alexandroni's sole source of income is her SSDI benefits.
Resolution of this issue involves an issue of statutory interpretation, which we review de novo. Edge v. Edge, 299 Mich.App. 121, 127, 829 N.W.2d 276 (2012).
Under the Michigan Constitution, crime victims are entitled to restitution. Const 1963, art 1, § 24. Under the Crime Victim's Rights Act (CVRA), MCL 780.751 et seq.
, it is mandatory, not discretionary, for trial courts to order convicted defendants to “make full restitution to any victim of the defendant's course of conduct that gives rise to the conviction....” People v. Fawaz, 299 Mich.App. 55, 65, 829 N.W.2d 259 (2012), quoting MCL 780.766(2).4 The defendant's ability to pay is irrelevant; only the victim's actual losses from the criminal conduct are to be considered. Id. at 65, 829 N.W.2d 259 ; People v. Crigler, 244 Mich.App. 420, 428, 625 N.W.2d 424 (2001) ().
Under the juvenile code, MCL 712A.1 et seq., restitution also is required, and many of its provisions are substantively identical to those of the CVRA. In re McEvoy, 267 Mich.App. at 63, 704 N.W.2d 78. “The juvenile code, MCL 712A.30, provides for restitution of a loss sustained by a victim of a juvenile offense[.]” Id. at 60, 704 N.W.2d 78. An order of restitution under the juvenile code is “a judgment and lien against all property of the individual ordered to pay restitution for the amount specified in the order of restitution.” MCL 712A.30(13). If a juvenile is or will be unable to pay a restitution order, “the court may order the parent or parents having supervisory responsibility for the juvenile ... to pay any portion of the restitution ordered that is outstanding.” MCL 712A.30(15). When ordering a parent to pay restitution, however, the trial court “shall take into account the financial resources of the parent and the burden that the payment of restitution will impose, with due regard to any other moral or legal financial obligations that the parent may have.”
MCL 712A.30(16). Regarding enforcement, MCL 712A.30(13) provides that “[a]n order of restitution may be enforced by the prosecuting attorney, a victim, a victim's estate, or any other person or entity named in the order to receive the restitution in the same manner as a judgment in a civil action or a lien.”
Alexandroni contends that 42 U.S.C. § 407(a) prohibits a state court from enforcing the restitution order against her because her sole income is her SSDI benefits. 42 U.S.C. § 407(a) acts as an antiattachment statute for Social Security benefits, and provides:
The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
The protection afforded to money received as Social Security benefits extends before and after the benefits are received. Philpott v. Essex Co. Welfare Bd., 409 U.S. 413, 415–417, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973). See also State Treasurer v....
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