People v. Monaco

• Decision Date: 01 February 2006
• Docket Number: Docket No. 126852.
• Citation: 710 N.W.2d 46,474 Mich. 48
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vito MONACO, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 46

710 N.W.2d 46

474 Mich. 48

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

Docket No. 126852.

Supreme Court of Michigan.

February 1, 2006.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, Robert Berlin, Chief Appellate Lawyer, and Jennifer Frustaci Adlhoch, Assistant Prosecuting Attorney, for the people.

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

OPINION

PER CURIAM.

In this case, we are asked to decide whether a violation of the statute that makes it a felony to refuse to pay court-ordered support for a former or current spouse or for a child, MCL 750.165(1), is subject to the ten-year period of limitations in MCL 600.5809(4) or the six-year "catch-all" period of limitations in MCL 767.24(5). We are also asked to decide whether a violation of this statute constitutes a continuing offense.

We affirm the Court of Appeals conclusion that a charge of felony nonsupport is subject to the six-year period of limitations of MCL 767.24(5).¹ We reject the Court of Appeals conclusion that a violation of MCL 750.165(1) is a continuing offense. We thus overrule People v. Westman, 262 Mich.App. 184, 685 N.W.2d 423 (2004),² to the extent that it is inconsistent with our decision in this case.

Defendant was charged with criminal nonsupport well after the six-year limitations period expired. The Court of Appeals thus erred in affirming the trial court's denial of defendant's motion to dismiss the charge. Accordingly, we affirm in part and reverse in part the Court of Appeals judgment. People v. Monaco, 262 Mich.App. 596, 686 N.W.2d 790 (2004). We remand this case to the trial court for entry of an order granting defendant's motion to dismiss the charge.

I

On August 20, 1984, defendant was ordered to pay child support for his two minor children under a default judgment of divorce. The order required

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.

Defendant's youngest child turned eighteen in March 1994. In December 2002, defendant was charged with violating MCL 750.165(1), which provides³:

If the court orders an individual to pay support for the individual's former or current spouse, or for a child of the individual, and the individual does not pay the support in the amount or at the time stated in the order, the individual is guilty of a felony punishable by imprisonment for not more than 4 years or by a fine of not more than $2,000.00, or both. [Emphasis supplied.]

The statute does not contain an express limitation of actions provision.

At defendant's preliminary examination, the prosecution presented testimony that defendant's child support arrearage amounted to $57,556.31, and that defendant had made no payments on the account since November 2001. Defendant's arrearage included both unpaid child support and Family Independence Agency (FIA) surcharges. Commencing in January 1996, a biannual surcharge also attached to defendant's delinquent account. The trial court bound defendant over, concluding that the judgment was "subject to the enforcement of the criminal sanctions."

Defendant moved to dismiss the charge or quash the bindover, arguing that the criminal nonsupport charge was time-barred under the six-year limitations period contained in MCL 767.24(5), the catch-all statute of limitations for crimes not otherwise specifically provided for in MCL 767.24. Defendant also argued that his prosecution under the amended statute violates the ex post facto clauses of the United States and Michigan constitutions. U.S. Const., art. I, § 10, cl. 1; Const. 1963, art. 1, § 10.

The trial court denied defendant's motion. The court ruled that the charge was not time-barred, relying on the ten-year period of limitations in MCL 600.5809(4). That statute provides:

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.

The Court of Appeals affirmed the trial court's decision on different grounds. The panel held that the trial court erred in concluding that the matter was governed by the ten-year limitations period found in MCL 600.5809(4) because that statute pertains to civil actions for collection on monetary obligations, not to criminal actions. Instead, the panel concluded that the crime of felony nonsupport is subject to the six-year period of limitations found in MCL 767.24(5).

The panel then held that defendant's failure to pay the arrearage of his court-ordered child support constitutes a continuing violation of MCL 750.165(1), because the court-ordered amount is both increased and reaffirmed every six months when the surcharge for nonpayment is added to the support arrearage. Expanding on the ruling in Westman, supra, in which the Court held that a violation of MCL 750.165(1) constitutes a continuing crime, the panel held:

[A] violation may be continuing under either the "amount owed theory" or the "time ordered theory." Under the "amount owed theory," the violation continues as long as an ordered support goes unpaid. The amount ordered is at the same time increased and reaffirmed each time the surcharge is added. For this reason, an "amount owed" violation may continue even beyond the child's eighteenth birthday. Under the "time ordered theory," the defendant violates MCL 750.165 when he fails to make the weekly support payment. The defendant also violates MCL 750.165 at the time each surcharge is added to the account and, at the same time, becomes due and owing. [Monaco, supra at 606-607, 686 N.W.2d 790.]

Applying an "amount owed" continuing violation theory, the Court of Appeals held that the statutory period of limitations on the felony-nonsupport charge against defendant never began to run because of defendant's arrearage. The panel thus affirmed the trial court's denial of defendant's motion to dismiss the felony-non-support charge or quash the bindover.

II

"In reviewing a district court's decision to bind over a defendant, the lower court's determination regarding the sufficiency of the evidence is reviewed for an abuse of discretion, but the lower court's rulings based on questions of law are reviewed de novo." People v. Schaefer, 473 Mich. 418, 427, 703 N.W.2d 774 (2005).

III

The first issue is the limitations period applicable to violations of MCL 750.165(1). We concur with the Court of Appeals that the appropriate limitations period for violations of MCL 750.165 is contained in MCL 767.24(5)⁴ and adopt its analysis appearing at 262 Mich.App. at 601-603, 686 N.W.2d 790:

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[(5)]. MCL 767.24 generally identifies ... different limitations periods for ... different crime categories:

* * *

"[(5)] All other indictments shall be found and filed within 6 years after the offense is committed. [Emphasis added.]"

Because MCL 750.165 is not identified in [other subsections of the statute], it necessarily falls under subsection [5] which unambiguously identifies "all other indictments." It is a settled rule of statutory construction that, unless otherwise defined in a statute, statutory words or phrases are given their plain and ordinary meanings. MCL 8.3a; People v. Libbett, 251 Mich.App. 353, 365-366, 650 N.W.2d 407 (2002). "There is no broader classification than the word `all.' In its ordinary and natural meaning, the word `all' leaves no room for exceptions." Skotak v. Vic Tanny Int'l, Inc., 203 Mich.App. 616, 619, 513 N.W.2d 428 (1994).

IV

Defendant was charged with criminal nonsupport under MCL 750.165(1) more than eight years after his court-ordered support obligation ended. Defendant's prosecution is, therefore, time-barred unless a violation of MCL 750.165(1) constitutes an offense that continues until an individual has fully satisfied the monetary support obligation, i.e., until the individual no...