CHILD SUPPORT ENFORCEMENT, NAS, MICH APP AND JUSTICE

Flint Divorce Lawyer Terry Bankert discusses Domestic Issues that Could be found in Genesee County Family Court or Your Court:

DID YOU KNOW :... Arrearages and Civil Contempt A system in which child support awards are commonly set beyond the parent's ability to pay, modification procedures are neither realistically available nor likely to address inequities, and retroactive correction is disallowed, inevitably results in the accrual by many parents of large and unpayable arrearages. [3]

DID YOU KNOW… in contempt, the low-income obligor is rarely a candidate for civil incarceration because of the likelihood that he or she is unable to pay the hefty sum represented by the accumulated arrearages, or even a portion thereof that may be set by the court as the purge amount. [3]

DID YOU KNOW... Indigents are especially unlikely to appeal civil contempt orders, given their lack of access to appellate counsel in most states and the brevity of the typical contempt sentence.[3]

DID YOU KNOW ... In civil contempt proceedings, unlike those for criminal contempt, absence of willfulness is treated as a defense, and the initial burden is on the contemnor to plead and present evidence of his or her inability to comply with the order. ... [3]

IF CONTEMPT OF COURT WITH POSSIBLE JAIL CAN FACE A CELEBRITY IT COULD HAPPEN TO YOU.Born Nasir Jones Rapper Nas was cleared of a civil contempt charge on Monday in connection with his divorce from Kelis. According to a statement from his spokesperson released on Wednesday, "The contempt charges that were filed against Nas earlier this year in conjunction with his ongoing custody battle were thrown out yesterday by Judge David Cunningham III presiding over the case. [4]

Nas has paid all of the child support owed in full. His legal counsel today also settled on additional undisclosed financial terms, which included attorneys' fees and spousal support." The contempt charges were dismissed after Nas paid nearly $50,000 in child support to estranged wife Kelis,[4]

ISSUES DISCUSSED IN THE ARTICLE BELOW: Conviction for failing to pay child support (MCL 750.165); Exclusion of evidence the defendant was unable to pay the court-ordered child support; People v. Adams; Due process; City of Port Huron v. Jenkinson; Whether defendant was entitled to a new trial on the basis her rights under Michigan's Due Process Clause were denied by the trial court's order prohibiting her from presenting inability to pay as a defense; Constitutionality of MCL 750.165; Ineffective assistance of counsel; People v. Mack; Impermissible collateral attack on the underlying support order; People v. Howard; MCL 600.1021; The Support & Parenting Time Enforcement Act (MCL 552.601-.650); MCL 552.16(1); MCL 552.605; MCL 552.603(2); MCR 3.205(C); The actus reus element of the crime; People v. Monaco; Right to present a defense; People v. Kurr; People v. Hayes; People v. Hackett; Relevant evidence (MRE 401); Prosecutorial misconduct; People v. Dobek; People v. Unger; People v. Thomas; People v. Rodriguez; People v. McLaughlin; People v. Watson; "Plain error" review; People v. Brown[1]Court: Michigan Court of Appeals (Unpublished 4/20/2010)Case Name: People v. (L), No. 290218, Oakland County Circuit Court, LC No. 2008-220669-FHe-Journal Number: 45583Judge(s): Per Curiam - Fitzgerald, Cavanagh, and Davis Concluding the defendant's reliance on Jenkinson was misplaced because unlike the defendant in Jenkinson, she was prosecuted for failing to comply with a court order entered after a judicial determination was made she had the financial means to comply with the court order, the court rejected her claim MCL 750.165 was unconstitutional and affirmed her conviction for failing to pay child support.

MOTHER IN FAMILY COURT WAS ORDERED TO PAY CHILD SUPPORT HERE IN CIRCUIT COURT SHE IS BEING PUNISHED FOR NOT PAYINGMother who is the Defendant was ordered to pay her ex-husband (E) child support after their divorce because he was awarded custody of their three minor children. The child support was initially set at $54 a month. Later, husband sought an increase after he learned mother had purchased a home worth about $500,000 by securing 2 mortgages in her name, for $2,000 a month and $1,000 a month, respectively. She also purchased a new vehicle. After hearings on the matter, the FOC recommended income of $5,000 a month be imputed to defendant consistent with her standard of living and her child support obligation be increased to $1,131 a month, retroactive to June 1, 2005. [1]The Oakland County Circuit Court trial court in the child support case adopted the recommendation after holding a hearing. [1]Mothers payment history was very sporadic. She paid nothing in 2006 and $488.85 in 2007. The amount of arrearage as of February 29, 2008 was $40,182.71. [1]

FELONY NON SUPPORTFelony charges for failure to pay child support were filed against her in March 2008. The trial court granted the prosecution's motion in limine to prevent defendant MOTHER from offering any evidence related to her alleged inability to pay the ordered child support. [1]

THE FOC ASSUMED THE ABILITY TO PAYOn appeal, defendant argued, inter alia, she was entitled to a new trial because her rights under Michigan's Due Process Clause were denied by the OAKLAND COUNTY CIRCUIT trial court's order prohibiting her from presenting her inability to pay as a defense. [1]

THE FAMILY COURT SAID SHE COULD PAY IT SHE SHOULD HAVE APPEALED THEREThe court disagreed, concluding unlike the defendant in Jenkinson, the duty imposed on defendant was adjudged possible for her to perform. She was a party to civil proceedings involving the modification of her child support obligation, which gave her ample opportunity to present evidence of her ability or inability to pay an increased amount of child support. [1]

THE FAMILY COURT SAID WITH THESE BILLS YOU CAN PAY MORE SUPPORT.In accordance with the evidence of her standard of living, she was adjudged capable of paying $1,131 in child support a month. "Thus, unlike the defendant in Jenkinson, the State did not impose upon her a duty that was impossible for her to perform." [1]

YOU HAVE TO APPEAL A COURT ORDER IN THE COURT THAT MADE THE ORDER NOT ANOTHER EQUAL OR LESSER COURT.The court concluded her argument was actually an impermissible collateral attack on the underlying support order. Affirmed. [1]Here, defendant was prosecuted for the criminal offense of violating MCL 750.165 whichstates, in pertinent part:(1) If the court orders an individual to pay support for the individual’sformer or current spouse, or for a child of the individual, and the individual doesnot pay the support in the amount or at the time stated in the order, the individualis guilty of a felony punishable by imprisonment for not more than 4 years or by afine of not more than $2,000.00, or both.[1]On September 29, 2008, the prosecution filed a motion in limine seeking to preventdefendant from offering any evidence pertaining to her alleged inability to pay the ordered child support. The prosecution argued that, as this Court held in People v Adams, 262 Mich App 89; 683 NW2d 729 (2004), the failure to pay child support in violation of MCL 750.165 is a strict liability offense; thus, evidence of an alleged inability to pay is immaterial and irrelevant. The trial court agreed and granted the motion in limine, holding that “inability to pay is not a defense. Something should have been raised earlier for a modification, but it wasn’t.” A jury trial began on November 14, 2008, and defendant was convicted as charged.[1]

HIGHLIGHT: Each day in the United States thousands of persons are jailed on charges arising from failure to pay court-ordered child support. Some of them have been convicted of contempt of court, a crime based on willful defiance of the court order. However, most are incarcerated pursuant to the court's civil authority to jail contemnors as a means of coercing compliance with the order. In the case of the civil contemnor, confinement generally occurs without the procedural protections that are available as a matter of right in criminal proceedings. A finding of ability to pay the ordered support is a necessary precedent to both a finding of contempt and the penalty of coercive incarceration. Otherwise, the incarceration can only be characterized as punishment for being poor. Yet many incarcerated child support obligors are indigent, with irregular employment, limited earning potential, no real assets, and questionable ability to pay. A variety of systemic and judicial flaws have coalesced to create a fertile environment for unjustified incarcerations. Prominent among these are serious deficiencies in current civil contempt practice. Restoration of equity and due process to this area will require an array of adjustments in federal and state law, agency practice, and judicial process.[3]

Posted here byTerry Bankerthttp://www.attorneybankert.com/

see

[1]Court: Michigan Court of Appeals (Unpublished 4/20/2010),Case Name: People v. (L), No. 290218, Oakland County Circuit Court, LC No. 2008-220669-FH,e-Journal Number: 45583,Judge(s): Per Curiam - Fitzgerald, Cavanagh, and Davis

[2] HEADLINES and cited comments by Terry Bankert A Michigan Attorney www.attorneybankert.com

[3]NAME: Elizabeth G. Patterson*BIO: * Professor, University of South Carolina School of Law. Professor Patterson was Director of the South Carolina Department of Social Services from 1999 through 2003.18 Cornell J. L. & Pub. Pol'y 95

[4]http://www.mtv.com/news/articles/1637082/20100415/nas.jhtml