People v. Monaco, Docket No. 247383.

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: KIRSTEN FRANK KELLY, J.
• Citation: 686 N.W.2d 790,262 Mich.App. 596
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vito MONACO, Defendant-Appellant.
• Docket Number: Docket No. 247383.
• Decision Date: 15 September 2004

686 N.W.2d 790
262 Mich.App. 596

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Vito MONACO, Defendant-Appellant

Docket No. 247383.

Court of Appeals of Michigan.

Submitted February 10, 2004, at Detroit.

Decided June 24, 2004, at 9:15 a.m.

Released for Publication September 15, 2004.

686 N.W.2d 793

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, and Jennifer Frustari Adlhoch, Assistant Prosecuting Attorney, for the people

Law Offices of James T. Simmons, P.C. (by James T. Simmons), Shelby Township, for the defendant on appeal.

Before: NEFF, P.J. and WILDER and KIRSTEN FRANK KELLY, JJ.

KIRSTEN FRANK KELLY, J.

Defendant appeals by leave granted the trial court's order denying his motion to dismiss the charge of failure to pay court-ordered support (felony nonsupport), MCL 750.165, or quash the bindover. We affirm.

I. Basic Facts and Procedural History

In 1983, defendant's wife filed a complaint for divorce. On August 20, 1984, the trial court entered a default judgment of divorce providing for custody and support of the parties' two minor children. With regard to child support, the order stated:

IT IS FURTHER ORDERED AND ADJUDGED that the Defendant shall pay to the Friend of the Court for the County of Macomb to be transmitted to the Plaintiff for the support and maintenance of the minor children of the parties, the sum of $43.44 per week per child, for each of the two (2) minor children ... until each of the said children have attained the age of eighteen or until further Order of this Court.

The younger child's eighteenth birthday was in March 1994.

On December 12, 2002, over eight years after the younger child's eighteenth birthday, the prosecution filed a felony complaint alleging that "on or about" December 11, 2002, defendant violated MCL 750.165. The information stated that defendant, "did not pay support for his or her children, in the amount or at the time stated in an order entered by the Macomb County Circuit Court...."

At the preliminary examination, the prosecution called only one witness. Susan Fox, an attorney and enforcement officer with the Macomb County Friend of the

686 N.W.2d 794

Court (FOC), testified that she had no prior involvement with defendant's case. To testify about the case, she obtained defendant's file and reviewed the notes, the default judgment of divorce, and a printout of the child support arrearages and payments. Defendant objected to the admission of these documents, but the trial court overruled the objections. The printout showed defendant's total child support arrearage but only the payments made since August 2000. Fox explained that an arrearage is computed by taking the child support charge minus the child support payments plus the surcharge. Beginning in January 1996, a surcharge attached to defendant's account twice a year. According to the printout, defendant last paid child support on November 2, 2001, in the amount of $200. At that time, defendant's total arrearage was $57,556.31

The prosecution moved for defendant to be bound over as charged. In anticipation of defendant's argument that the charge was time-barred, the prosecution asserted that once defendant made the payment in November 2001, he revived his obligation to pay the arrearage. After denying defendant's request for time to research the statute of limitations, the district court bound defendant over on the charge of felony nonsupport. The district court determined that "an arrearage did exist on the date of December 11, 2002 and that the last payment was made on — in November of 2001." The trial court concluded that "this is still a live judgment and therefore subject to the enforcement of the criminal sanctions."

Defendant filed a motion to dismiss the charge or quash the bindover. Defendant argued that the charge should be dismissed for two reasons. Defendant argued that because "the information was filed over 8-1/2 years after the last act that would have constituted a violation of the statute," the statutory period of limitations had expired. Defendant also argued that the charge violates ex post facto prohibitions because the act for which he was charged occurred before the amendment of MCL 750.165. Defendant moved to quash the bindover on the basis that the trial court erred in admitting the judgment of divorce and the FOC printout.

The trial court denied defendant's motion to dismiss the felony-nonsupport charge. With regard to defendant's statute of limitations argument, the trial court determined that because defendant's last payment was due on March 3, 1994, the charge was not time-barred by the ten-year period of limitations in MCL 600.5809(4). With regard to defendant's ex post facto argument, the trial court determined that the amendment only clarified minor aspects of the statute and did not allow the prosecution to convict on less evidence.

The trial court also denied defendant's motion to quash the bindover. The trial court ruled that the true copy of the default judgment of divorce was admissible under MRE 902(4) because it was "certified as correct by the custodian ... authorized to make the certification" and admissible under MRE 1003(1) because the authenticity of the original default judgment was not in dispute. The trial court also ruled that the FOC printout was admissible under MRE 803(8) because the document recorded child support payments and arrearages as an activity of the FOC. The trial court concluded that the prosecution satisfied the probable cause requirement for the bindover.

II. Analysis

A. Motion to Dismiss the Charge

Defendant first argues that the trial court erred in denying his motion to dismiss the charge because (1) it erred in

686 N.W.2d 795

applying the ten-year period of limitations in MCL 600.5809(4) and (2) the charge violated ex post facto prohibitions. We review de novo a trial court's ruling on a motion to dismiss a charge on legal grounds. People v. Owen, 251 Mich.App. 76, 78, 649 N.W.2d 777 (2002)

1. Statute of Limitations

We agree that the trial court erred in applying the ten-year period of limitations in MCL 600.5809(4). MCL 600.5809 generally sets forth a ten-year period of limitations for civil claims to enforce noncontractual money obligations:

(1) A person shall not bring or maintain an action to enforce a noncontractual money obligation unless, after the claim first accrued to the person or to someone through whom he or she claims, the person commences the action within the applicable period of time prescribed by this section.

MCL 600.5809(4) more specifically addresses support orders:

For an action to enforce a support order that is enforceable under the support and parenting time enforcement act, Act No. 295 of the Public Acts of 1982, being sections 552.601 to 552.650 of the Michigan Compiled Laws, the period of limitations is 10 years from the date that the last support payment is due under the support order regardless of whether or not the last payment is made.

But the statute as a whole clearly applies only to civil actions, not criminal charges. If the language of a statute is clear, no further analysis is necessary or allowed to expand what the Legislature clearly intended to cover. People v. Pasha, 466 Mich. 378, 382, 645 N.W.2d 275 (2002). MCL 600.5809 sets forth a ten-year period of limitations for civil claims seeking enforcement and collection of a noncontractual money obligation. It does not identify any criminal charges whatsoever. Even MCL 600.5809(2), which applies in the criminal context, applies only to civil forfeiture actions based on a penal statute. MCL 600.5809(4) clearly identifies actions brought under the support and parenting time act and makes no reference at all to criminal charges, let alone the charge of felony nonsupport. Further, although the felony-nonsupport charge is related to an order of support pursuant to the support and parenting time act, it is a distinct criminal action that is not covered by MCL 600.5809.

The appropriate statutory limitations period is set forth in MCL 767.24(4). MCL 767.24 generally identifies four different limitations periods for four different crime categories:

(1) An indictment

...