Civil Contempt Proceedings in Child Support Cases in Michigan

Judge Hoort, of the 8th  Judicial Circuit Court pointed out today that he thought in Michigan folks who are faced with civil contempt for non-support are entitled to court-appointed attorneys. Since I love a challenge, I went to my favorite Internet law library (TheLaw.net) and quickly found the Michigan case law supporting his point.

In Mead v Batchelor, 435 Mich. 480 (1990), Michigan's supreme court reversed Sword v. Sword, 399 Mich. 367 (1976), holding that “[i]n light of more recent developments in due process jurisprudence and changes in Michigan statutes governing child support enforcement, we now are persuaded that our holding in Sword must be modified to recognize that the Due Process Clause of the Fourteenth Amendment of the United States Constitution precludes incarceration of an indigent defendant if he has been denied counsel in a contempt proceeding for failure to pay child support.”

There is and was a decided difference between Michigan law on the subject and that of South Carolina, as shown in the decision in Mead. The difference is that in Michigan the Friend of the Court represents the payee, making the playing field even, which is not the case in South Carolina. In Mead, the Payor was represented by David Hunt of the Legal Aid Bureau of Southwestern Michigan, Inc.

Interestingly, in Mead, there were amicus briefs filed by the following: Roland C. Fancher, the ACLU Fund of Michigan; the Family Law Section; Legal Aid of Western Michigan; and also by Michigan Legal Services.

Apparently, in South Carolina, the FOC doesn’t represent the payee, and the S.C. Court’s idea is that “we aren’t gonna do it for you, scumbag child support scofflaw, because then we’d have to spend money providing counsel for the payee.” At least the S. Ct. decision makes clear that there have to be some alternative measures taken to ensure a modicum of due process.

My question to you is: How do we reconcile this result with the felony non-support statute, MCL 750.165, which does not have inability to pay as a defense?

See Judge Hoort's blog here: http://judgedavidhoort.blogspot.com/

Comments

[Jeanne M. Hannah]

Thank you for writing. It's difficult to see how making a person unemployed (by throwing him or her in jail) is going to solve the problem of unpaid child support.

[M.J.]

It's not fair when a father has so much money that he's able to not pay his support and get away with it. In my case, my ex-husband remarried someone with a 6-figure salary so he quit working and lives off of her, then had the court lower his support from $642/mo to $79/mo for 2 kids. Absolutely ridiculous the court didn't impute his income like the previous order. There was no change in circumstances. He actually increased his income since the last order. All I see is obvious favoritism towards his pricey lawyer. This is Oakland County. I've lost faith in this "justice system". It doesn't seem to matter if you're breaking the law and not following court orders, it just matters how much money you have to give to lawyers who give to judge's campaigns. So the kids lose in the end and the rich get richer.