Michigan Supreme Court Acknowledges "Impossibility" in Felony Child Support

This blog has covered the child support saga of Ms. Selesa Likine.  Her felony child support conviction was just reversed by the Michigan Supreme Court, and her case has been sent back down to the Oakland County Circuit Court.

The family court was created by statute pursuant to the Michigan Constitution back in 2000; now, there is a family court division for every county in Michigan.  Family courts issue support orders that obligate a parent to pay a specified sum each month for the support of their minor children.

Ever since parents have been ordered to pay child support, there have been those who cannot or will not make their required  payments.  There are different reasons for not paying: some withhold payment from their ex-spouse for revenge; others simply cannot afford to pay, or do not put a high priority on their child support obligation.  [e.g. the "Worm" aka Dennis Rodman.]  Still others find it impossible to satisfy their court-ordered obligation based on hard economic circumstances.

Regardless of the reason, when a child support payor fails to pay pursuant to a court order, an arrearage builds-up and the courts take notice.  Quite apart from the family court, the county circuit courts of general jurisdiction are the courts where felony criminal matters are prosecuted.

The Michigan Penal Code has a law on the books known as "failure to pay child support"; a four-year felony.  This felony has always been considered a "strict liability" crime, meaning that there is no defense to the charge once the prosecutor proves that the family court issued a support order and the payor, for whatever reasons, did not pay.

On Tuesday, the Michigan Supreme Court addressed the felony child support statute in People v Likine.  This case is significant to the extent that it expressly reverses a Court of Appeals decision that precludes a defendant from asserting any "ability to pay" defense whatsoever.  The Likine Court held that "impossibility to pay" is an affirmative defense on which a jury can be instructed at a trial provided certain offers of proof are tendered.  Also, the Court reaffirmed that, despite the availability of this affirmative defense, felony child support remains a "strict liability" crime.

In the initial divorce case, Selesa Likine was diagnosed with depressive schizoaffective disorder.  Family Court Judge Linda Hallmark initially ordered her to pay only $54 per month in support; a relatively low amount.

Likine's support was increased, first to $184 per month then to $1131 per month, on the basis of "imputed income".  At a support hearing conducted before the FOC Referee, evidence revealed that Ms. Likine made [false] representations of high income on two mortgage applications in order to purchase an expensive home.

Based on these representations, and based on the  projected earnings of someone paying on that large a mortgage, the FOC Referee imputed income of $5000 per month to Likine.  Of course, this was a fiction; not only did Likine never earn that much income, she basically had no chance whatsoever to satisfy her new increased child support obligation.

Enter the criminal charge against Ms. Likine.  When her lawyer tried to "tell it to the judge", and then to the jury, about her lack of income, it was too late.  The trial judge relied on the holding of a Michigan Court of Appeals case [People v Adams] precluding Likine from presenting any evidence on her so-called "inability to pay."

Bottom line: now, a felony defendant is able to offer proof of an "impossibility" to pay, but not an inability to pay.  The latter concerns must still be addressed to the family court.  The reason is that our criminal jurisprudence requires a "mens rea" or "guilty mind" as a required component to every crime listed in the Michigan Penal Code.

Note to attorneys: The Likine case was a companion case with two other consolidated cases.  In those other cases, the felony child support convictions of the child support payors were NOT reversed on the basis that neither defendant had preserved the "impossibility to pay" issue in the trial court.

Just sayin; had they done so, those convictions also may have been reversed.

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Two Day Jury Trial in Oakland Circuit Results in Not Guilty Verdict

On Monday and Tuesday of this week, I was in a jury trial in Oakland County Circuit Court before Judge John McDonald. I think he's a great judge, mostly because I've never lost a trial in his courtroom. This trial made four straight.

The odds, as usual, were stacked against acquittal. The principal charge was assault with intent to do great bodily harm (less than murder), with a second count: commission of a felony with a firearm; a charge that carries a mandatory two-year minimum prison sentence upon conviction.

My client was a woman with no criminal record. The alleged victim, however, had done 15-years in prison for armed robbery. After an evening of drinking and socializing, the two (in an on-again off-again relationship) retreated to my client's home. An argument boiled over and two shots were fired from a revolver. One shot hit the victim in the foot.

At trial, my client took the stand and testified she shot the weapon toward the "victim" in self defense. The jury believed her, and she avoided the two-year mandatory prison sentence.

One of the keys to the acquittal was an effective cross-examination of the so-called victim. He was made to look foolish, and like a bully, admitting to contact with my client.

The case illustrates how the plea policy of the Oakland County Prosecutor's office can sometimes be quite flawed. In this case, the client was most concerned about doing two years in prison. She could appreciate the seriousness of the gun shots, and the significant injury one of the bullets did to her former boyfriend. While willing to do some jail time on an assault guilty plea, she was not about to sign-up for two years. But that's exactly what the prosecutor wanted her to do; no plea offer to drop the felony firearm charge.

So we rolled the bones and went to trial. In this case, it was well worth the effort. This client was well served as she saved two years of her life.

If you or a loved one face serious felony charges, contact our firm in order to assess your options. We will advance your interests in dealing with the prosecutor and, if necessary, take the matter to trial.

info@clarkstonlegal.com
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Oakland Circuit's Most Prolific Jurist Retires After 32-years on the Bench

The official word is "retirement". Tell that to his law clerk, seen recently busting down the corridor of the Oakland Circuit Courthouse at a brisk clip, no time to talk; or to the attorneys of record on an aging civil case, hanging around the docket, but now re-assigned to the new "visiting judge".

As long-time circuit judge Steve Andrews' retirement loomed toward the end of last year, many wondered how he would fare in retirement. His outstanding research attorney already had been reassigned to another judge, as have his courtroom and chambers, but his presence remains a strong force in the Oakland Circuit Court.

Andrews, along with fellow-retiree Fred Mester, are the newest "visiting" judges at the Oakland Circuit Court. Visiting judgeships are common for judges forced to leave the bench, sometimes prematurely, via the age-limit statute. They are often assigned to the court's unruly PPO dockett.

A visiting judgeship, however, means something different to Judge Andrews. In his first month on the visiting judge docket, he knocked-out six jury trials, including a medical malpractice trial and a complex contract matter; no other judge completed more than two. Thus, history will record Steve Andrews as Oakland Circuit's most prolific jurist for the sheer number of completed jury trials. Using this criteria to measure his public service, Judge Andrews has no peer.

In the future, some judge may eventually unseat Andrews as the trial champion of Oakland County, but they would be well advised to take the bench at a very young age. In the meantime, if you are an attorney with an old case on the Oakland Circuit dockett, you might just want to want to dust off your file and get it ready for trial in case it gets assigned to the "visiting" judge.