The Michigan Supreme Court issued an opinion supported by a 4 justice majority in People v. Likine on July 31, 2012 that allows a defendant to raise the common law defense of impossibility in felony non-payment of child support cases. The court did not adopt an inability to pay defense. Three justices dissented and would have adopted the broader inability to pay defense. Likine combined three separate appeals of felony non-payment of child support convictions into one appeal. In one instance the defendant had been unemployed for over three years and was on social security for mental illness. Her child support payment was over $1,000 per month at one point.
Felony non-payment of child support under MCL 750.165 is a strict liability offense. The statutory maximum for a conviction of felony non-support is 4 years in prison and or a $2,000 fine. The impossibility defense is a high standard to meet. The defendant must make a prima facie case of impossibility or the defense will not be submitted to the jury. This means that the defendant must establish facts at trial sufficient for a reasonable jury to find impossibility or the judge will not send the defense to the jury. If the defense goes to the jury the defense must prove impossibility by a preponderance of the evidence.
To do this the court ruled that the defendant must show that he or she acted in good faith and made all reasonable efforts to pay the amount due, but was unable to do so through no fault of his or her own. Efforts to seek employment or borrow money are needed, but the court made clear that the defendant must go beyond that and use all resources at the defendant's disposal to pay the child support. It must have been impossible for the defendant to obtain the resources to pay.
The court included a non-exhaustive list of factors including that the defendant: 1) "diligently sought employment", 2) attempted to secure additional employment; 3) whether investments were liquidated; 4) whether the defendant received gifts or an inheritance; 5) whether the defendant owns a home where refinancing is possible; 6) whether assets can be sold or used as loan collateral; 7) the priority the defendant placed on paying child support over the purchase of luxury or non-essential items; 8) whether reasonable precautions were taken 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;" 9) the existence of "unexplored possibilities for generating income for payment of court-ordered support; and 10) major unexpected circumstances preventing payment. The court explicitly stated that passivity, neglect, and failure to plan will not excuse non-payment of child support. Hiding or being untruthful about resources or assets or the failure to seek a timely change to the child support order when circumstances indicate it is impossible to pay may also prevent the defendant from using the defense.
Overall this is a very narrow defense that must be carefully presented at trial or the defense may never get to the jury. Individuals in a situation where they cannot pay child support must be aware that they must exhaust every possibility or option they have to make good on their obligation if they are to avail themselves of this defense.
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198