Felony nonsupport charges are increasing in Michigan as Attorney General Cox cracks down on deadbeat parents. (Note, I do not use the phrase deadbeat dads. Plenty of payee parents are dads, and the deadbeats are moms.)
The Michigan Court of Appeals decided People v Herrick, Docket No. 271882 (for publication) on November 27, 2007. In Herrick, the defendant was charged with felony nonsupport for failing to pay court-ordered child support for his two children between November 7, 2000, and November 7, 2005. Following the preliminary examination, the district court found that there was sufficient evidence to bind defendant over for trial.
The defendant subsequently moved the trial court to quash the information arguing that there was insufficient evidence to bind him over for trial because there was no evidence that he appeared at, or received notice by personal service of, the actions in which the support orders were issued, as required by MCL 750.165(2). The trial court granted defendant’s motion and dismissed without prejudice the charge against him. The prosecution appealed.
In affirming the trial court’s ruling, the COA stated that it was bound by the result in People v Monaco, 262 Mich App 596, 606 (2004) to the extent it was not overruled by the supreme court in Monaco II, [People v Monaco, 474 Mich 48 (2006)]. Clearly, said the COA, an element of felony nonsupport is notice of the proceedings in which the support order or orders were entered. Even were that not so, the clear language of the statute, MCL 750.165, compels this result.
(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 individual ordered to pay support appeared in, or received notice by personal service of, the action in which the support order was issued. [MCL 750.165.]
This result is entirely consistent with the concept of due process, which requires notice of the charges against a person and a fair hearing. How can a person have a fair hearing with an adequate opportunity to defend unless he or she has notice of the proceedings, and thus notice of the hearing?
You may read People v Herrick here.
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