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Genuine impossibility is a defense to the charge of felony nonsupport under MCL 750.165. A defendant cannot be held criminally liable for failing to perform an act that was genuinely impossible for the defendant to perform.
The instant case was a consolidation of three cases involving the felony of failure to pay court-ordered child support (felony nonsupport) under MCL 750.165 and the rule of People v Adams, which held that inability to pay is not a defense to this crime.
Case #1 (People v. Likine)
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. 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, which was adopted by the family court. 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 by the FOC to her was appropriate. 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. The jury found Likine guilty as charged. In February 2009, Likine filed a claim of appeal, and in March 2009, through appellate counsel, she also moved for a new trial in the circuit court. Likine argued that her rights under the Michigan Constitution's Due Process Clause were violated when she was not allowed to present evidence of her inability to pay as a defense to the criminal charge of felony nonsupport. The circuit court denied the motion on the record, citing Adams for the rule that inability to pay is not a defense to this strict-liability offense.
Case #2 (People v. Parks)
Defendant Michael Joseph Parks (Parks) and his wife Diane Parks (Diane) divorced in September 2000. Defendant, an orthopedic surgeon, was a rural physician with a solo practice who sometimes worked as a contract physician. The Ingham family court initially ordered defendant to pay $230 a week in child support for the parties' three children. On August 19, 2003, the family court modified Parks's support obligation to $761 a week. Parks was charged criminally with violating MCL 750.165 for failing to pay child support from October 1, 2006, through July 15, 2008. At the close of trial, the prosecutor argued that each of the three elements necessary to convict Parks of violating MCL 750.165 had been established: that Parks was ordered to pay child support, that he was either personally served or appeared in the underlying matter, and that he had failed to pay the ordered amount. Defense counsel argued that Parks "did all that he could to comply" with his child support obligation and was "doing what he could to reestablish his practice." The circuit judge found defendant guilty as charged, stating that it was "obvious" that considering "the number of times Mr. Parks has refused to pay over the years, including the period of time in question here, . . . Mr. Parks has no real desire to comply with what the law says he is supposed to do" and that "Mr. Parks simply does not want to pay."
Case #3 (People v. Harris)
Defendant Scott Bennett Harris (Harris) and Lavonne Harris (Lavonne), divorced in November 2003. The Muskegon family court initially ordered Harris to pay $139 a month for his two children, and the amount was subsequently increased to $612 a month in 2006. Harris, who was living in Key West, Florida, was charged with felony nonsupport as a fourth-offense habitual offender for failing to pay his court-ordered child support between April 4, 2003, and May 7, 2008. Harris's child support arrearage amounted to nearly $13,000. On September 25, 2008, Harris pleaded guilty as charged in exchange for a fairly complex sentencing agreement pursuant to People v Cobbs. The Muskegon Circuit Court agreed that sentencing would be delayed by two months (until December 8, 2008) and that if Harris paid $3,000 of the child support arrearage, sentencing would be delayed until May 2009. If Harris paid another $5,000 on the arrearage by May 2009, the circuit court agreed that it would not sentence him to any type of incarceration, although he would still be subject to the imposition of probation, fines, costs, and tethering. The circuit court stressed, however, that Harris would "need to stay current" in his support obligations in addition to paying the arrearage. After Harris agreed to the conditions, the circuit court accepted his guilty plea and permitted Harris to return to his home in Florida. On December 8, 2008, Harris appeared before the circuit court for sentencing. At that time Harris had paid $1,500, roughly the amount of his ongoing child support payments, but he acknowledged that he had not paid any amount of the arrearage. Defense counsel stated that defendant "want[ed] to try to comply," but that he was indigent, as evidenced by the court's having appointed counsel for him in the criminal proceeding. Harris was sentenced as a fourth-offense habitual offender to a prison term of 15 months to 15 years. The circuit court ordered costs and restitution of $12,781.39, the amount of the child support arrearage.
Is impossibility to pay available to a defendant charged with felony nonsupport?
The language of MCL 750.165 provided no indication that the Legislature intended to abrogate common-law impossibility as a defense to felony nonsupport. Consistently with the Michigan Constitution and absent a clear legislative intent to abolish the common law, it was presumed that the common-law defense of impossibility remains available if supported by sufficient evidence. Yo establish an impossibility defense for felony nonsupport, a defendant must show that he or she acted in good faith and made all reasonable efforts to comply with the family court order, but could not do so through no fault of his or her own. In our view, "sufficient bona fide efforts to seek employment or borrow money in order to pay" certainly are expected, but standing alone will not necessarily establish an impossibility defense to a charge under MCL 750.165. Instead, defendants charged with felony nonsupport must make all reasonable efforts, and use all resources at their disposal, to comply with their support obligations. For the payment of child support to be truly impossible, a defendant must explore and eliminate all the reasonably possible, lawful avenues of obtaining the revenue required to comply with the support order. Defendants must not only establish that they cannot pay, but that theirs are among the exceptional cases in which it was not reasonably possible to obtain the resources to pay. A defendant's failure to undertake those efforts reflects "an insufficient concern for paying the debt" one owes to one's child, which arises from the individual's responsibility as a parent. To determine whether a defendant has established impossibility in the context of a felony nonsupport case, the court provided, for illustrative purposes only, a nonexhaustive list of factors for courts to consider. These should include whether the defendant has diligently sought employment; whether the defendant can secure additional employment, such as a second job; whether the defendant has investments that can be liquidated; whether the defendant has received substantial gifts or an inheritance; whether the defendant owns a home that can be refinanced; whether the defendant has assets that can be sold or used as loan collateral; whether the defendant prioritized the payment of child support over the purchase of nonessential, luxury, or otherwise extravagant items; and whether the defendant has taken reasonable precautions to guard against financial misfortune and has arranged his or her financial affairs with future contingencies in mind, in accordance with one's parental responsibility to one's child. The existence of unexplored possibilities for generating income for payment of the court-ordered support suggests that a defendant has not raised a true impossibility defense, but merely an assertion of inability to pay. A defendant's failure to explore every reasonably possible avenue in order to pay his or her support obligation not only reflects "an insufficient concern for paying the debt he owes to society," it also reflects an insufficient concern for the child. In those instances, the defendant may not invoke the shield of the impossibility defense.