People v. Likine

• Decision Date: 31 July 2012
• Docket Number: Calendar Nos. 2,4.,141513.,Docket Nos. 141154,141181,3
• Citation: 492 Mich. 367,823 N.W.2d 50
• Parties: PEOPLE v. LIKINE. People v. Parks. People v. Harris.
• Court: Michigan Supreme Court

492 Mich. 367

823 N.W.2d 50

PEOPLE

v.LIKINE.

People

v.Parks.

People

v.Harris.

Docket Nos. 141154, 141181, 141513.

Calendar Nos. 2, 3, 4.

Supreme Court of Michigan.

Argued Oct. 6, 2011.

Decided July 31, 2012.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Joel D. McGormley, Assistant Attorney General, for the people in Likine and Parks.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Tony Tague, Prosecuting Attorney, and Charles F. Justian, Chief Appellate Attorney, for the people in Harris.

Bridget McCormack, David A. Moran, Michael J. Steinberg, Kary L. Moss, and Williams & Connelly, LLP (by Frances Y. Kim), for Selesa Likine.

State Appellate Defender (by Douglas W. Baker) for Michael Parks.

State Appellate Defender (by Jacqueline J. McCann) for Scott Harris.

Ronald Schafer, Kym L. Worthy, and Timothy A. Baughman for the Prosecuting Attorneys Association of Michigan.

Eve Brensike Primus for various criminal law professors at Michigan law schools in Likine.

Vivek S. Sankaran for Legal Services Association of Michigan in Likine.

MARY BETH KELLY, J.

These three cases involve the felony of failure to pay court-ordered child support (felony nonsupport) under MCL 750.165 and the rule of People v. Adams,¹ which held that inability to pay is not a defense to this crime. We granted leave to consider the constitutionality of the Court of Appeals' ruling in Adams and now clarify that, while inability to pay is not a defense to felony nonsupport pursuant to MCL 750.165, Adams does not preclude criminal defendants from proffering the common-law defense of impossibility.

These cases require us to consider, for the first time, the nature of Michigan's felony-nonsupport statute and the proper defense to a nonsupport charge. We endorse the well-established common-law defense of impossibility as the proper defense to felony nonsupport. In doing so, we differ from the dissent both in terms of our temporal view and our sense of parents' financial priorities. Consistently with the Legislature's expressed intent in the child support statutes, we believe that to avoid conviction for felony nonsupport, parents should be required to have done everything possible to provide for their child and to have arranged their finances in a way that prioritized their parental responsibility so that the child does not become a public charge. Unlike the dissent, which would undermine the legislative choices that are reflected in the statutory child support framework, our view of parental responsibility and obligation leads us to recognize the impossibility defense. This defense differs from that advanced by the dissent because we provide guidance to the circuit courts regarding how the defense is to be adjudicated, and although a parent's ability to pay is one factor we consider, we also take other factors into account. Allowing a mere inability-to-pay defense as the dissent suggests would undermine Michigan's legislative system, which requires ability to pay to be considered in establishing the support order in the first instance, explicitly prohibits the retroactive modification of child support orders, and makes nonsupport a strict-liability criminal offense. Our view is consistent with the plain language of Michigan's nonsupport statute and gives as much meaning as possible to the Legislature's expressed intentions, as we are required to do by our Constitution. If Michigan has placed greater priority than other states on the issue of child support as reflected in its child support laws, we are, in recognizing this defense, simply permitting the Legislature to legislate as it sees fit, in accordance with its legislative directive and in accordance with our judicial role.

I. FACTS AND PROCEDURAL HISTORY

A. PEOPLE v. LIKINE, DOCKET NO. 141154

Defendant Selesa Arrosieur Likine (Likine) and Elive Likine (Elive) divorced in June 2003. The Family Division of the Oakland County Circuit Court (the family court) gave Elive physical custody of the parties' three children and ordered Likine to pay child support. The family court recognized Likine's “history of fairly serious mental health conditions” and her diagnosis of depressive-type schizoaffective disorder. The family court initially ordered $54 a month in child support and then raised it to $181 a month in August 2004.

Beginning in 2005, Likine failed to comply with the order requiring her to pay child support.² Elive sought an increase in child support payments that same year. The Friend of the Court (FOC) referee recommended that Likine's child support obligation be increased to $1,131 a month on the basis of the parties' testimony and evidence that she had secured two mortgages, listing income as $15,000 a month on the applications, to purchase a home worth $409,000.³ The referee imputed income of $5,000 a month to Likine,⁴ reasoning that this was the minimum income required to meet the “bare bones monthly expenses” Likine had reported.⁵ After a two day hearing de novo, the family court adopted the FOC referee's recommendation in an order dated August 30, 2006.

On September 28, 2006, the family court denied Likine's motion for reconsideration in a five-page written opinion, concluding that Likine's testimony was not truthful, that her tax returns did not accurately reflect her income, and that Likine had “misrepresented her income so many times that there is no way to adequately determine her income.” The family court recognized that Likine “does suffer from some form of mental illness,” but the evidence presented led the court to conclude that she was “working and earning an income” because she was “maintaining herself,including the payment of a substantial mortgage.” Although Likine's “actual income could not be determined due to her evasive testimony and numerous misrepresentations,” the family court found that the amount of income imputed was appropriate. ⁶

On March 20, 2008, the Department of Attorney General, Child Support Division, charged Likine criminally with felony nonsupport between February 1, 2005, and March 11, 2008, in violation of MCL 750.165. On September 29, 2008, the prosecutor filed a motion in limine to bar Likine from offering or referring, directly or indirectly, to her ability or inability to pay court-ordered child support, including her employment status and claims that her actual income was less than the amounts used to calculate her support obligation. Citing Adams,⁷ the prosecutor argued that evidence of inability to pay is not a valid defense to the crime of felony nonsupport, a strict-liability crime.

At the motion hearing on October 8, 2008, Likine argued that the prosecutor was seeking to deprive her of any defense to the charge against her and that this violated her constitutional right to due process. She claimed that she had no source of income or assets from which to pay the court-ordered child support. Likine further testified that she had been unemployed since September 2005, when she was released from a month-long hospitalization; that she was disabled with schizoaffective disorder, for which she had received periodic treatment, including medication; that her sole source of income was supplemental security income (SSI) amounting to $637 a month; that she had tried to hold a part-time temporary job but was physically and mentally unable to do so; that the bank foreclosed on and “short sold” her Rochester Hills home in June 2007; and that although she had held two professional licenses, they were inactive or had lapsed and she was unable to use them because of her credit rating and her disability. According to Likine, she had been able to pay $181 a month in child support in 2004 because that amount was based on her actual income. Likine provided the circuit court with a copy of her social security earnings record covering 1985 through 2003, which showed no income from 1994 through 2002.⁸ On October 21, 2008, the circuit court issued a written order granting the prosecutor's motion in limine.

At the jury trial in November 2008, the prosecutor presented the testimony of Elive and an FOC child-support-account specialist. The specialist testified that the child support order entered when Likine and Elive divorced required Likine to pay $35 a month for one child and $48 a month for two. The amount was subsequently increased, in August 2004, to $181 a month. For the period subject to the felony-nonsupport charge, February 2005 through March 2008, the amount of support ordered was initially $181 a month, but in June 2005 it was raised to $1,131 a month. The specialist testified that Likine had made very sporadic payments, including payments in only 12 of the 37 months charged, in amounts ranging from $100 to $281.

Elive also testified that Likine's child support payments were “very sporadic,” stating that she only paid child support “when the Friend of the Court threatened her or they sent her a note.” Elive testified that Likine had told him that he “would suffer with those kids” by himself and that Likine had said she would “not [pay] any child support” because “women don't pay child support.” He stated that he sought an increase in the child support amount in June 2005 after Likine purchased a half-million-dollar home in Rochester Hills. ⁹

Likine testified on her own behalf. She stated that she was able to pay both the $54 a month that was initially ordered and the $181 monthly amount, but when the support amount was increased to $1,131, she was unable to make the payment. She acknowledged that she had purchased the home in Rochester Hills, but stated that the house “was put in [her] name” and that her boyfriend had paid for it. In closing, defense counsel argued that the amount of Likine's child support had effectively been “made up” by using imputed income as the basis for calculation and that “the child support should not have been in the amount of $1,131.” Counse...