If you are charged with Refusal to Support Spouse or Children / Failure to Pay Child Support in Livonia, Michigan, you need the help of an experienced Livonia criminal defense attorney. I can provide you with nearly 20 years of experience and a willingness to fight and take cases to trial.
Refuse to Support Spouse or Children is a class F felony that carries up to 4 years in prison (48 months). If you are arrested and charged with Refusal to Support Spouse or Children / Failure to Pay Child Support, your first court appearance will be an arraignment in the 16th District Court in Livonia, Michigan. Learn more about an arraignment now. At the arraignment, your case will be scheduled for a probable cause conference and a preliminary examination. Bond will also be addressed at the arraignment. The probable cause conference must be scheduled within 7 to 14 days of the arraignment with the preliminary examination scheduled within 5 to 7 days after the probable cause conference.
Following the preliminary examination, further proceedings are held in the Wayne County Circuit Court at the Frank Murphy Hall of Justice in downtown Detroit. If there is virtually any evidence supporting the prosecutor's case, it is extremely likely that the matter will be bound over in the district court. Nonetheless, I almost always challenge cases at the preliminary examination because it is the best opportunity that the defense is presented for challenging the evidence and developing the facts that will support defenses in the circuit court. DO NOT WAIVE THE PRELIMINARY EXAMINATION WITHOUT MAKING AN INFORMED DECISION.
The charge of Refusal to Support Spouse or Children / Failure to Pay Child Support is detailed in the Michigan compiled laws, MCL 750.165. The provisions of MCL 750.165 state:
(1) 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.
(2) This section does not apply unless the court in which the support order was issued had personal jurisdiction over the individual ordered to pay support.
(3) Unless the individual deposits a cash bond of not less than $500.00 or 25% of the arrearage, whichever is greater, upon arrest for a violation of this section, the individual shall remain in custody until the arraignment. If the individual remains in custody, the court shall address the amount of the cash bond at the arraignment and at the preliminary examination and, except for good cause shown on the record, shall order the bond to be continued at not less than $500.00 or 25% of the arrearage, whichever is greater. At the court's discretion, the court may set the cash bond at an amount not more than 100% of the arrearage and add to that amount the amount of the costs that the court may require under section 31(3) of the support and parenting time enforcement act, 1982 PA 295, MCL 552.631. The court shall specify that the cash bond amount be entered into the law enforcement information network. If a bench warrant under section 31 of the support and parenting time enforcement act, 1982 PA 295, MCL 552.631, is outstanding for an individual when the individual is arrested for a violation of this section, the court shall notify the court handling the civil support case under the support and parenting time enforcement act, 1982 PA 295, MCL 552.601 to 552.650, that the bench warrant may be recalled.
(4) The court may suspend the sentence of an individual convicted under this section if the individual files with the court a bond in the amount and with the sureties the court requires. At a minimum, the bond must be conditioned on the individual's compliance with the support order. If the court suspends a sentence under this subsection and the individual does not comply with the support order or another condition on the bond, the court may order the individual to appear and show cause why the court should not impose the sentence and enforce the bond. After the hearing, the court may enforce the bond or impose the sentence, or both, or may permit the filing of a new bond and again suspend the sentence. The court shall order a support amount enforced under this section to be paid to the clerk or friend of the court or to the state disbursement unit.
(5) An order for restitution for a violation of this section shall not include a separate award for the unpaid amount in arrearage under the support order. The restitution order shall reference the support order and direct the individual to pay the unpaid amount in arrearage under the support order pursuant to the support order. The court may impose such terms and conditions in the restitution order as are appropriate to ensure compliance with payment of the arrearage due under the support order. The court may order additional restitution as provided under the William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.751 to 780.834.
(6) As used in this section, state disbursement unit or SDU means the entity established in section 6 of the office of child support act, 1971 PA 174, MCL 400.236.
Refusal to Support Spouse or Children / Failure to Pay Child Support under Michigan sentencing guidelines is scored under crimes against public order (Pub Ord). Under the guidelines, a person who is convicted of Refuse to Support Spouse or Children with no prior record and no aggravating factors looks to the low end of the guidelines which call for up to 3 months. With no prior criminal record but horrible facts, the defendant can face 17* months. With a terrible criminal record and terrible facts, the accused can be looking at 30 months under the guidelines.
The jury instructions set forth the following elements for Refuse to Support Spouse or Children that must be proven beyond a reasonable doubt by the prosecuting attorney:
M Crim JI 34.4 Criminal Nonsupport
(1) The defendant is charged with the crime of failing to pay support for [his / her] [former spouse / current spouse / child(ren)]. Defendant pleads not guilty to this charge. To establish this charge, the prosecution must prove each of the following elements beyond a reasonable doubt:
(2) First, that there is a court order that requires the defendant to pay support for [his / her] [former spouse / current spouse / child(ren)] [insert name(s) of spouse or child(ren)].
(3) Second, that the defendant [appeared in / was personally served with notice of] the action in which the support order was issued.
(4) Third, that the defendant failed to pay support in the amount or at the time stated in the order.
Michigan courts have held that this is a strict liability offense, meaning that there is no mental element or mens rea to the offense. People v Adams, 262 Mich App 89; 683 NW2d 729 (2004). Furthermore, the courts have also held that "inability to pay" is not a defense to a charge of felony nonsupport. People v Likine, 492 Mich 367 (2012). So... It doesn't look like there's any defense to this type of charge, right? Wrong.
Nearly every crime carries a mens rea, which refers to that person’s intent. If there is no criminal intent, then there can be no crime. This is true in all but the most extreme cases. Michigan courts have construed a rather mundane change in the statutory language to imply that there is no mens rea to this offense. But nothing in the statute actually states that the offense is a strict liability offense. Legislation is pending, supported by CDAM and the Mackinac Center for Public Policy, that would explicitly require that strict liability offenses be declared as such by the Legislature. This is likely to pass during the 2015 term.
And although "inability to pay" has been ruled upon by the courts, the Likine Court held that a person charged with felony nonsupport could raise the defense of impossibility. In other words, where it was impossible for the person to pay, the accused could not be convicted of the crime. What is the difference between an inability to pay defense and the defense of impossibility? Good Lord, who knows! Impossibility goes to the "actus rea" of the offense. Actus rea is the criminal act, with its counterpart in ancient law being mens rea. All of this is very philosophical and esoteric, and frankly it makes no difference before a jury. You, me and members of the jury do not understand the difference between the inability to pay and an attack on the actus rea because it means the same thing: You didn't pay support because you could not pay as opposed to not wanting to pay. Sounds a lot like a mental intent also known as mens rea, right? Yep.
Here is the jury instruction on the impossibility defense that is read to the jury:
M Crim JI 34.5 Impossibility As a Defense to Felony Nonsupport
(1) The defense of impossibility has been raised by the defendant. This is an affirmative defense, and the defendant has the burden of proving this defense by a preponderance of the evidence. This means that the defendant must satisfy you that it was more likely than not that it was truly impossible to comply with the family court order.
(2) In order to prove this defense, the defendant must establish that [he / she] did everything reasonably possible to provide for [his / her] child/children and to have arranged [his / her] finances in such a way that prioritized [his / her] parental responsibility and that, despite those efforts, it was truly impossible for the defendant to comply with the family court order. The defendant must explore and eliminate all the reasonably possible and lawful avenues of obtaining the revenue to comply with the support order.
(3) In determining whether the defendant has established the defense of impossibility, you should consider whether the defendant has diligently sought employment; whether [he / she] could have secured additional employment; whether [he / she] had investments that could have been liquidated; whether [he / she] received gifts or an inheritance; whether [he / she] had a home that could have been sold or refinanced; whether [he / she] had assets that could have been sold or used as loan collateral; whether [he / she] prioritized the payment of child support over the purchase of nonessential items; and whether [he / she] took reasonable precautions to guard against financial misfortune and arranged [his / her] financial affairs with future contingencies in mind, in accordance with one’s parental responsibility to one’s child.
(4) You may consider the defendant’s conduct and responses in the family court in determining the possibility of compliance with the support order and to evaluate the defendant’s good-faith efforts.
(5) If you find that the defendant has proved the defense of impossibility by a preponderance of the evidence, then you must find the defendant not guilty. If, however, [he / she] has failed to prove impossibility, then [his / her] impossibility defense fails.
I can't emphasize enough how important it is to focus on the jury instructions while preparing a defense to the offense of Refusal to Support Spouse or Children / Failure to Pay Child Support. We can talk about more defenses to Refuse to Support Spouse or Children such as offsets and other defects in a felony nonsupport case.
As a cautionary note, you might be completely innocent but still face criminal charges. Even worse, you might be denied bail, forced to spend months in jail before you are vindicated. I have seen many cases where a truly innocent client is baffled, angry and scared, completely unable to understand why police and prosecutors are gunning to get a conviction. So long as probable cause is established at the preliminary examination, then the matter will be bound over for trial in the 3rd Circuit Court for the County of Wayne and further proceedings will be held in the Frank Murphy Hall of Justice in downtown Detroit. This is why it is so important that you contact an experienced Livonia criminal defense attorney to help you defend against criminal charges in the 16th District Court.
*represents an aberration under the guidelines that might result in county jail time or violate the 2/3rd maximum minimum rules under the guidelines, which is something that must be discussed with your attorney.