STATE OF MICHIGAN

[N THE SUPREMECOURT

THE PEOPLEOF THESTATE OF MICHIGAN,

SCNo. 141513Plaintiff-Appellee,

COANo.297182vs.

Lower CourtFile No. 08-56761-FHSCOTTBENNETT HARRIS, MuskegonCountyCircuit Court

Defendant-Appellant./

MUSKEGONCOUNTY PROSECUTOR STATE APPELLATEDEFENDEROFFICEAttorneyfor Plaintiff Attorneyfor DefendantBy: JamesL. Corbett(P59312)) By: RoifE. Berg(P26758)Hall ofJustice,Fifth Floor 101 NorthWashington,l4t1~Floor990 TerraceStreet Lansing,MI 48913Muskegon,MI 49442 (517)334-6069(231)724-6435

/

PLAINTIFF-APPELLEES RESPONSETODEFENDANT-APPELLANTS APPLICATION FOR LEAVE TO APPEAL

MUSKEGONCOUNTY PROSECUTORAttorneyfor Plaintiff-Appellee \ \~13 ~

By: JAMES L. C0RBETr(P59312)AssistantProsecutingAttorney ~

BUSINESSADDRESS& TELEPHONE.Hall ofJustice,Fifth Floor990TerraceStreetMuskegon,MI 49442(231)724-6435

TABLE OF CONTENTS

PageNo.

TABLE OF CONTENTS i

INDEX OF AUTHORITIES iii

COUNTERSTATEMENTOF THE QUESTIONSPRESENTED vi

COUNTERSTATEMENTOF JURISDICTION viii

COUNTERSTATEMENT OF THE FACTS 1

LAW AND ARGUMENT 2

I. THE PROVISIONS OF THE INTERTWINED CIVILAND CRIMINAL STATUTES IN THIS CASE ARECONSISTENT WITH A CONCLUSION THAT THELEGISLATURE INTENDED TO CREATE A STRICTLIABILITY OFFENSE 2

II. THE PROHIBITION OF AN INABILITY-TO-PAYDEFENSEDOES NOT VIOLATE THE MICHIGANAND FEDERAL DUE PROCESSCLAUSES ASINTERPRETED BY THE MICHIGAN SUPREMECOURT IN CITY OFPORTHURON VJENKINSON S

1. THE CIVIL PROCEEDING FOR DETERMINATIONOF SUPPORTLEVELS DOES NOT MAKE THESTATUTE UNCONSTITUTIONAL 8

2. THE SO-CALLED ELIMINATION OF A VOLUN-TARYACTUSREUSREOUIREMENTDOESNOTRENDERTHE STATUTE UNCONSTITUTIONAL 11

III. DEFENDANT WAS NEITHER DENIED THE BENEFITOF HIS COBBSAGREEMENT NOR INCARCERATEDBASED UPON AN UNCONSTITUTIONAL CONSIDER-ATION OF HIS INIMGENCY AND, THEREFORE, THETRIAL COURT DID NOT ERRONEOUSLY DENY HISMOTION TO WITHDRAW HIS PLEA 14

TABLE OF CONTENTS continued

IV. DEFENDANT WAIVED HIS CLAIM THAT THETRIAL COURT ERRONEOUSLY ADOPTED THECHILD-SUPPORT ARRIEARAGE IN FAMILY COURTAS THE RESTITUTION AWARD DESPITE ITSFAILURE TO FIND THAT THIS AMOUNT WASALL THE RESULT OF CRIMINAL CONDUCT 23

CONCLUSION 28

11

4-

INDEX OF AUTHORITIESPageNo.

Caselaw:

ApprendivNewJersey,530US 466; 120SCt 2348; 147 L Ed 2d 435 (2000) 9

Beardenv Georgia,461 US 660; 103 S Ct 2064;76 L Ed 2d 221 (1983) 16,18,19,20,21

Peoplev Bulger,462 Mich 495; 614 NW2d 103 (2000),overruledin parton othergroundsinHalbertv Michigan, US ; 125 S Ct 2582;162LEd2d552(2005)

City ofKetteringv Greene,9 Ohio 2d 26; 222NE2d638 (1996) 12

City ofPort HuronvJenkinson,77 Mich 414; 43 NW 923 (1889) 5,6

Commonwealthv Payne,602NE2d594 (MassApp Ct, 1992) 2 1,22

DickeyvState,257GaApp 190;570 SE2d634(2002) 20

Dusenberyv UnitedStates,534US 161; 122SCt 694; 151 lEd2d 597 (2002) 7

In re Winship,397US 358; 90 S Ct 1068;25 LEd2d 368 (1970) 7

LemmenvLemmen,481 Mich 164; 749 NW2d 255 (2008) 3

Morissettev UnitedStates,342 US 246; 72 S Ct 240; 96 L Ed 288 (1952) 12

Pattonv State,458 NE2d657(md CtApp, 1984) 21

PeoplevAdams,262 Mich app89; 683 NW2d 729 (2004) 3,5,13,14

Peoplev Buehler,477Mich 18; 727NW2d 127 (2007) 21,22

Peoplev Cannes,460Mich 750; 597NW2d 130 (1999) 2

Peoplev Carter, 462 Mich 206; 612 NW2d 144 (2000) 23,25

Peoplev Collins, 239 Mich App 125; 607NW2d 760 (1999) 16

Peoplev Cobbs,443 Mich 276; 505 NW2d 208 (1993) 15

PeoplevDrohan,475 Mich 140; 715 NW2d 778 (2006) 9

Peoplev Gahan,456 Mich 264; 571 NW2d 503 (1997) 24,25

111

INDEX OF AUTHORITIES continuedPageNo.

Caselaw:

Peoplev Grant, 455Mich 221,233;565NW2d 389 (1997) 24,25

Peoplev Hardin, 421 Mich 296; 365 NW2d 101 (1984) 23

Peoplev Haynes(AfterRemand),221 Mich App 551; 562 NW2d241 (1997) 15

PeoplevHoward,212Mich App 366; 538 NW2d 44 (1995) 9

PeoplevLaw, 459 Mich 419; 591 NW2d20(1999) 26,27

PeoplevLaw, 223 Mich App 585, 589; 568 NW2d 90 (1997),revd inparton other grounds 459 Mich 419; 591 NW2d 20 (1999) 25

PeoplevLikine, Mich App ; NW2d2010WL 1568450(2010) 5,6,7,8,10,11,12,23

Peoplev McNally,470 Mich 1; 679 NW2d301 (2004) 2

Peoplev Monaco,262 Mich App596,606; 686NW2d 790 (2004),affd in partAnd revdin partonothergrounds474 Mich 48 (2006) 8

Peoplev Montrose, 201 Mich App 378; 506 NW2d565 (1993) 14

People vPersails, 192 Mich App 380; 481 NW2d 747 (1991) 20

People v Pollick, 448 Mich 376; 531 NW2d 159 (1995) 23

People vRatkov, 201 Mich App 123, 125;505 NW2d866,888 (1993) 24

People vRiley, 465 Mich 442; 636 NW2d514, 518 (2001) 2,23,19

People v Westman, 262 Mich App 184; 685 NW2d 423 (2004),revd in partonothergroundssubnomPeoplevMonaco,474 Mich 48; 710NW2d46 (2006) 3,5,13,14

StatevJacobsen,746NW2d405 (ND, 2008) 16

Statev Kremer,262 Minn 190; 114NW2d 88 (1962) 12

Statev Nondahl,680NW2d 247 (ND, 2004) 20

SteelevDept ofCorrections,215 Mich App 710; 546 NW2d 725 (1996) 5

iv

TatevShort, 401 US 395; 91 SCt668;28LEd2d 130 (1971) 16,19

United StatesvGaudin,515US 506; 115 SCt231O; 132LEd2d444 (1995) 9

United States v Olano, 507 US 725; 113 S Ct 1770; 123 L Ed 2d 508 (1993) 23

V

INDEX OF AUTHORITIES continuedPageNo.

Court Rules:

MCR6.310(C) 14

Statutes:

MCL552.17(1) 4

MCL 750.165 2,3 ,4,6,12,22

MCL75O.165(1)

MCL 750.165(2) 3

MCL769.la 25

MCL 769.34(2) 22

MCL 769.34(3) 22

MCL 769.34(10) 22

MCL 780.766(2) 25

Constitution:

Const1963,art 1, § 24 25

vi

I.

COUNTERSTATEMENT OF THE QUESTIONS PRESENTED

ARE THE PROVISIONSOF THE INTERTWINED CIVIL ANDCRIMINAL STATUTES IN THIS CASE CONSISTENTWITH ACONCLUSIONTHAT THE LEGISLATURE INTENDED TO CREATEA STRICT LIABILITY OFFENSE?

Plaintiff-Appelleesays,YesDefendant-Appellantsays,No.Thetrial courtsays,Yes.

II. DOESTHE PROHIBITION OF AN INABILITY-TO-PAY DEFENSEVIOLATE THE MICHIGAN AND FEDERAL DUE PROCESSCLAUSESAS INTERPRETEDBY THE MICHIGAN SUPREMECOURTIN CITYOFPORTHURONVJENKJNSOIV?

Plaintiff-Appelleesays,No.Defendant-Appellantsays,Yes.Thetrial courtsays,No.Court ofAppealssays,No.

1. DOESTHE CIVIL PROCEEDINGFORDETERMINATION OF SUPPORTLEVELS MAKE THESTATUTEUNCONSTITUTIONAL?

Plaintiff-Appelleesays,No.Defendant-Appellantsays,Yes.Thetrial courtsays,No.Court ofAppealssays,No.

2. DOESTHE ELIMINATION OFA VOLUNTARYACTUS REUS REQUIREMENTRENDERTHESTATUTEUNCONSTITUTIONAL?

Plaintiff-Appelleesays,No.Defendant-Appellantsays,Yes.Thetrial courtsays,No.CourtofAppealssays,No.

vii

COUNTERSTATEMENT OF THE OUESTIONS PRESENTED continued

III. WAS DEFENDANTNEITHERDENIED THE BENEFIT OF HIS COBBSAGREEMENTNOR INCARCERATEDBASED UPONANUNCONSTJTUTIONALCONSIDERATIONOF HIS INDIGENCY AND,THEREFORE,NOT ERRONEOUSLYDENIED HIS MOTION TOWITHDRAW HIS PLEA?

Plaintiff-Appelleesays,YesDefendant-Appellant says, No.Thetrial courtsays,Yes.Court ofAppealssays,No.

IV. DID THE TRIAL COURTERRONEOUSLYADOPTTHE CHILDSUPPORTARREARAGEIN FAMILY COURTAS THERESTITUTIONAWARD DESPITEITS FAILURE TO FIND THATTHIS AMOUNT WAS ALL THE RESULT OFCRIMINAL CONDUCT?

Plaintiff-Appelleesays,No.Defendant-Appellantsays,Yes.Thetrial courtsays,No.Court ofAppealssays,No.

viii

COUNTERSTATEMENT OF JURISDICTION

The Supreme Court mayreview by appeal a case after decision by the Court of Appeals.

MCR7.30 1(A)(2). The procedures for such appeal are outlined in MCR7.3 02 et seq. The Court

of Appeals order denying leave was entered on June 4, 2010. (Appendix D.) An application for

leave must be filed within 56 days of an opinion of the Court of Appeals. MCR 7.302(C)(2)(b).

Defendants application was filed on July 30, 2010. Accordingly, his application for leave to

appeal is timely, having been filed within 56 days of the Court of Appeals decision.

ix

COUNTERSTATEMENT OF THE FACTS

Defendant applies for leave to appeal from the Court of Appeals June 4, 2010, order

(Appendix D) that denied his application for leave to appeal from his December 15, 2008,

judgment of sentence entered by the Muskegon County Circuit Court, the Honorable TIMOTHY

G. HICKS, presiding.

Defendantwasconvictedby guilty pleaof felonynon-support,MCL 750.165,andby the

trial court of being a habitual offender, fourth offense, MCL769.12. He was sentenced on

December 8, 2008, to 15 months to 15 years imprisonment and, inter alia, ordered to pay

restitution in the amount of $12,781.39.

OnAugust 10, 2009, the trial court heard arguments regarding Defendants request to

withdraw his plea or be resentenced. On August 21, 2009, the trial court denied relief on the

grounds that MCL750.165 is a strict liability statuteandthat it did not fail to consider

Defendants indigence when Defendant was sentenced on December 8, 2008. On December 2,

2009, the trial court issued an opinion denying the motion for resentencing on all grounds. On

December 22, 2009, Defendant filed a Motion for Rehearing regarding whether the monies owed

as restitution included anymonies owed to the State of Michigan. On March 5, 2010, the trial

court issued an opinion denying Defendants Motion for Rehearing.

Additional facts will be presentedaspertinentto theLaw andArgument.

LAW AND ARGUMENT

I. THE PROVISIONS OF THE INTERTWINED CIVIL ANDCRIMINAL STATUTES IN THIS CASE ARE CONSISTENT WITHA CONCLUSION THAT THE LEGISLATURE INTENDED TOCREATE A STRICT LIABILITY OFFENSE.

A. Standard of review

The People disagree with Defendants statement of the standard of review. Defendant

claimed for the first time a due process violation after Defendants plea and sentence by way of a

motion for resentencingorwithdrawalofplea. Accordingly,Defendantraisedunpreserved,

constitutional error.

Forfeited error remains subject to appellate review in limited circumstances. Peoplev

Riley,465 Mich 442, 449; 636 NW2d514, 518 (2001), citing Peoplev Cannes,460 Mich 750,

774; 597 NW2d130 (1999). Unpreserved error is deemed forfeited on appeal absent plain

error. Cannes, supra,460 Mich at 763-765. To avoid forfeiture under the plain-error rule,

three requirements must be met by the defendant: 1) error must have occurred, 2) the error was

plain, i.e., clear or obvious, 3) andthe plain error affected substantial rights. The third

requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of

the lower court proceedings. PeoplevMcNally,470 Mich 1, 6; 679 NW2d301 (2004). Finally,

once a defendant satisfies these three requirements, an appellatecourtmustexerciseits discretion

in deciding whether to reverse. Reversal is warranted only when the plain, forfeitederror

resulted in the conviction of an actually innocent defendant or when an error seriously affected

the fairness, integrity or public reputation of judicial proceedings independent of the defendants

innocence. Cannes, supra, 460 Mich at 763-764.

2

B. Analysisoftheissue

Defendant claims the civil and criminal statutes in this case are inconsistent with MCL

750.165 being a strict liability statute. Defendant concedes, however that this is the law. People

vAdams,262 Mich App 89, 98-99; 683 NW2d729 (2004); Peoplev Westman,262 Mich App

184, 191; 685 NW2d423 (2004); revd in part on other grounds sub nomPeoplev Monaco,474

Mich 48; 710 NW2d46 (2006). Hence there was no plain error.

First, MCL750.165(2) provides that[t]his 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. Defendant received notice and was given the opportunityto be

heard in the divorce proceedings, but apparently, he chose not to do so. MCL750.165(1)

provides that [i]f the court orders an individual to pay support for ... 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, orboth. MCL750.165(1) deals with guilt and

conviction. The minimum sentence of an individual convicted under MCL750.165 is covered

by the Michigan Sentencing Guidelines. While the inability to pay cannot be arguedat trial it

can be raised as a restitution issue at sentencing. Defendant did not challenge the restitution

amount at sentencing. Although he claimed to have health issues (back and heart) andnoted that

he was determined indigent by having counsel appointed, he did not present a viable claim of an

inability to pay. The trial court obviously deemed the victims statement that Defendants failure

to pay child support had more to do with Defendants drug and alcohol addictions and with a

problem with working than Defendants claim of health issues. (12/08/2008 Sentence Tr, pp 7-

11.) Second, the civil law is clear that, [i]n general, a trial court may modify child ... support

3

after the judgment has been entered if there is a change in circumstances. Lemmenv Lemmen,

481 Mich 164, 166; 749 NW2d255 (2008); MCL552.17(1) ([a]fter entry of judgment

concerning ... divorce, ... and on the petition of either parent, the courtmay revise and alter a

judgment concerning the ... support of some or all the children, as the circumstances of the

parents and the benefit of the children require); see also MCL552.28. Therefore, if a person

legitimately cannot pay support because of, inter alia, health reasons, he or she maypetition the

Family Court for a modification of the support order. The person must file a petition and the

person must show proof. And, if the Family Court denies such petition, the person may appeal

the decision. Thus, Defendant had an avenue within which to address his claimed inability to

pay which would have avoided criminal proceedings from occurring. He failed to pursue that

avenue. Hence, he cannot be heard to complain in the criminal arena that his civil order was

somehow erroneous in requiring him to pay child support on a schedule.

Defendant raises the irrelevant circumstance of an individual (not this Defendant) who is

jailed for a violation of the felony nonsupport statute where his child-support obligation

continues during incarceration. Because such phantom individual is incarcerated, he cannot pay

as ordered. Because this phantom individual fails to pay as ordered, he could be prosecuted for

this nonpayment under MCL750.165. Thus, Defendant claims, the statute must be

unconstitutional.This, of course,is a nonsequiturfor two reasons. First, that is not what

happenedin this case.Second,evenif Defendantshypotheticalis true,he couldhavereported

to theFamily Court andhadthepaymentschedulestayedduringhis incarceration.Theone

thinghe couldnotdo is attemptto collaterallyattackhis Family Court order.

4

II. THE PROHIBITION OF AN INABILITY-TO-PAY DEFENSEDOES NOT VIOLATE THE MICHIGAN AND FEDERAL DUEPROCESSCLAUSES AS INTERPRETED BY THE MICHIGANSUPREME COURT IN CITYOFPORTHURONVJENKINSON?

A, Standard of review

Defendant waived the due process claim and whether inability to pay should be a viable

defense to the charge of felony nonsupport whenhe enteredhis unconditionalplea. People v

Bulger, 462 Mich 495, 517 n 7; 614 NW2d103 (2000), overruled in parton other grounds in

HalbertvMichigan, US ; 125SCt 2582; 162 L.Ed.2d552 (2005).

B. Analysispftheissue

Defendants argument was rejected by the Court of Appeals in Peoplev Likine, Mich

App ; NW2d ; 2010WL 1568450(2010)(AppendixC). Whatdistinguishesthis case

from Likine is thatthedefendantin Likine wasconvictedfollowing ajury trial whereas,here,

Defendantwasconvictedby an unconditionalplea. Thus, in this case,Defendantforewentthe

opportunityto arguetheinability-to-paydefense.Hence,asstatedabove,this issueis waived.

Bulgen, supra.

In Adams,theCourt ofAppealsheldthat Child SupportFailing to Pay,MCL 750.165,is

a strict liability offenseandassuchadefendantdid not havetheright to raise an inability-to-pay

defense. In Westman,the Court of Appealsheldthatits holdingin Adamswasnot in conflict

with thedefendantsconstitutionalright to dueprocess. Westman,supna,262Mich Appat 190-

191. Defendant contends that, where a defendant does nothavean ability to paytheamountof

child support ordered, prohibiting the defense of the inability to pay violates the Michigan

Constitution as interpreted by City ofPontHuronvJenkinson, 77 Mich 414; 43 NW923 (1889).

The People disagree with Defendants reading ofJenkinson.

5

In Jenkinson,thedefendantwasprosecutedby a local ordinancefor failing to comply

with a local ordinance that required property owners to construct andmaintain good and

sufficient sidewalks. This Honorable Court held that no legislative or municipal body has the

power to impose the duty of performing an act upon any person which it is impossible for him to

perform, and then to make his non-performance a crime, for which he may be punished by both

fine and imprisonment. Jenkinson,supra, 77 Mich at 417. Jenkinsonis clearly distinguishable

from Defendants case on the facts. Jenkinsonnever had a prior determination that the

individual had the ability to pay for the sidewalks as occurs in the Family Court on a child- or

spousal-support matter. Likine, supra,2010 WL1568450, * 2 (Appendix C, slip op, pp 2-3).

In reaching this issue, the Court of Appeals in Likine stated:

Defendant argues that, in accordance with our Supreme Courts decisionin Jenkinson,77 Mich at 4 19-420, the Michigan Constitution forbids theinterpretation of MCL750.165 as a statute which prevents the presentation of aninability to pay defense, thus criminalizing an involuntary omission. InJenkinson,the impoverished defendant was prosecuted for failing to comply witha local ordinance that imposed a duty upon property owners andoccupants toconstruct, keep andmaintain good and sufficient sidewalks along all streets andavenues in front of or adjacent to such real estate; and upon failure to do so, suchperson, after due notice, shall be liable to prosecution.... Jenldnson,77 Mich at417. The JenkinsonCourt found that the ordinance was not only void, butunconstitutional on the ground that: No legislative or municipal body has thepower to impose the duty of performing an act upon any person which it isimpossible for him to perform, and then make his non-performance of such duty acrime, for which he may be punished by both fine and imprisonment. Id. at 419.Defendants reliance on Jenkinsonis misplaced.

Defendant claims that MCL750.165 is unconstitutional because, just as inJenkinson,the State imposed upon her the duty of paying child support in theamount of $1,131 a month when it was impossible for her to perform that duty inlight of her poverty and, further, she was prevented from presenting such adefense to this strict liability offense. But, unlike the defendant in Jenkinson,defendant was prosecuted for failing to comply with a court order that wasentered after a judicial determination was made that defendant had the financialmeans to comply with the court order, i.e., the duty imposed upon defendant wasadjudged possible for her to perform.

6

Defendant was a party to several civil proceedings involving themodification of her child support obligation which afforded her ample opportunityto present evidence of her ability or inability to pay an increased amount of childsupport. At those proceedings evidence was adduced that, while defendant waspaying $181 a month in support of her three minor children, she purchased ahouse worth about $500,000 by securing two mortgages in her name thatobligated her to pay $3,000 a month. She also purchased a brand new vehicle.Thereafter, defendant was adjudged, in accordance with the evidence of herstandard of living, to be capable of paying child support in the amount of $1,131 amonth for her three minor children. Thus, unlike the defendant in Jenkinson,theState did not impose upon her a duty that was impossible for her to perform. Anddefendants ineffective assistance of counsel claim premised on her attorneysfailure to bring Jenkinsonto the trial courts attention andto raise a claim underthe Michigan Constitution is without merit. See People v Mack, 265 Mich App122, 130; 695 NW2d342 (2005). [Likine, supna, 2010 WL1568450, * 2(Appendix C, slip op, pp 2-3.]

In the instant case, Defendant had a prior judicial determination of his ability to pay child

support in the Family Court during his divorce proceeding. Leading up to his criminal charges,

Defendant had an ample opportunity to petition the Family Court for a modification of his final

divorce judgment that was entered on October 10, 2003. (See Appendix A.) In fact, on or about

June 5, 2006, Defendant filed a motion to review child support and the Family Court did in fact

modify his support obligation. (See Appendix B) Thus, Defendant certainly understood he

could pursue and achieve a review of his child-support obligation and have it modified if he

presented legitimate reasons for doing so to the Family Court.

Under the due process clause persons whose property interest rights are at stake are

entitled to notice and an opportunity to be heard. Dusenbeiy v United States, 534US 161, 168;

122 S Ct 694; 1511 Ed 2d 597 (2002). These rights are secured by the procedures established in

the Family Court which, as stated, Defendant has, himself, utilized. Thus, Defendant has had his

notice and opportunity to be heard by the Family Court prior to his voluntary failure to pay.

Accordingly, even assuming that this claim is not waived by Defendants unconditional plea, the

fact that MCL750.165 is a strict liability offense and prohibits the inability-to-pay defense did

7

notviolateDefendantsConstitutionalrights andtherewasno error in thetrial courts

prohibitingDefendantfrom raisingsuchdefense.

1. THE CIVIL PROCEEDINGFOR DETERMINATION OF SUPPORTLEVELSDOESNOTMAKETHESTATUTEUNCONSTITUTIONAL.

Defendant contends that the circuit court in the instant felony non-support prosecution

could not rely on the prior determination from the Family Court that Defendants child support

payments were within Defendants meansto afford, becausetheywerenot madeundera

reasonable doubt standard as required in a criminal case. Defendant also complains that she

could not confront witnesses against her or have a jury of her peers determine whether he was

able to pay child support assessments. (Defendants brief, p 12.) This, of course, is all

academic because Defendant entered an unconditional plea.

In any event, Defendant incorrectly assumes that the ability or inability to paysupportis

an element of the offense. It is not. Instead, the elements of the crime of felony nonsupport are

(1) the defendant was required by a decree of separate maintenance or divorce order to support

a child or current or former spouse, (2) the defendant appeared in or received notice by personal

service of the action in which the order was issued, and (3) the defendant failed to pay the

required support at the time ordered or in the amount ordered. Peoplev Monaco,262 Mich

App 596, 606; 686 NW2d790 (2004), affd in part and revd in part on other grounds 474 Mich

48 (2006); Likine, supra,2010WL1568450, * 5 (Appendix C, slip op, p 5). The critical inquiry

once it is determined that an order was entered and the defendant received notice of it or

participated in the proceedings that produced it is whether the defendant failed to pay the

required support at the time ordered or in the amount ordered. In its essence, the criminal

violation is the failure to honor the requirements of the support order by timely paying support

under the terms of the order.

8

In 1999,whenthecurrentstrict liability felonynon-supportoffensewasenacted,the

Legislatureintendedto criminalizethefailure to pay child supportorderedby thedivorceor

Family Court. A defendantis entitledundertheFifth andSixth Amendmentsto theUnited

States Constitution to ajury determinationof everyelementoftheoffensecharged.Apprendiv

NewJersey,530 US466, 477; 120 S Ct 2348; 147 L Ed 2d 435 (2000); UnitedStatesv Gaudin,

515US506,510;115SCt2310; 132LEd2d444(1995);PeoplevDrohan,475Mich140, 149;

715 NW2d778 (2006). [T]he Due Process Clauseprotectstheaccusedagainstconviction

except upon proof beyond a reasonable doubt of every factnecessaryto constitutethecrimewith

which he is charged[.] Apprendi,supra, 530 US at 477; 120 S Ct at 2356, quoting In re

Winship,397 US358, 364; 90 S Ct 1068, 1073; 25 L Ed 2d 368 (1970).

These requirements were satisfied here where Defendant pled guilty to the facts

necessary to constitute the crime with which he was charged. He was given notice and

participated in the civil proceedings that gave rise to the support order. He failed to timely pay

the amount owed as ordered. Nowhere is theretheadditionalrequirementthatDefendanthadthe

ability to pay such court-ordered support. Therefore, because this is not an element of the

offense, Defendant has no right to have a jury make a determination beyond a reasonable doubt

that he had the ability or inability to pay and, obviously, there was a factual basisfor his

unconditional plea.

As explained in Likine, Defendants request is an impermissible collateral attack on the

underlying support order:

Defendants argument is actually an impermissible collateral attack on theunderlying support order. Pursuant to MCL600.1021, the family division ofcircuit court has sole and exclusive jurisdiction over casesof divorceandancillary

1 A collateral attack occurs when a challenge is madeto a judgment in any way besides adirect appeal. Peoplev Howard,212 Mich App 366, 369; 538 NW2d44 (1995).

9

matters,includingthosemattersset forth in thesupportandparentingtimeenforcementact,MCL 552.601 to 552.650. UnderMCL 552.16(1),thecourtwhich enters a judgment ofdivorcemayentertheordersit considersjustandproper concerning the care, custody,and,asset forth in thesupportandparentingtime enforcement act, MCL552.605, the support of minor children. UnderMCL552.605,the court that orders the paymentofchild support must generally orderchild supportin an amountdeterminedby applicationofthechild supportformula,unlessthecourtspecificallyfinds that its applicationwould beunjustorinappropriate.[A] supportorderthatis partof ajudgmentor is an order in adomestic relations matter is a judgment on and after the date the support amountis due ... with the full force, effect, and attributes of a judgment of this state....MCL552.603(2). Pursuant to MCL552.1224, the tribunal of this state thatissues a support order consistentwith this stateslaw hascontinuing,exclusivejurisdictionoverachild supportorderif thepartiesandchildrenatissueremainresidents of this state. Accordingly, with regard to domestic relations actions,MCR3.205(C) provides:

(1) Each provision of a prior order remains in effectuntilthe provision is superseded, changed, or terminated by asubsequent order.

(2) A subsequent court must give due considerationto priorcontinuing orders of other courts, and may not enter orderscontraryto or inconsistentwith suchorders,exceptasprovidedbylaw. [Likine, supra, 2010 WL1568450, * 3 (AppendixC, slip op,pp 3-4).]

Thus,ascorrectlyexplainedby theCourt of appeals in Likine, supra, thefamily division

of thecircuit courthassoleandexclusive jurisdiction over cases of divorce and ancillary matters,

including those matters set forth in thesupportandparentingtime enforcementact,MCL

552.601 to 552.650 pursuant to MCL600.1021 [.] Likine, supra, 2010 WL1568450, *3

(Appendix C, slip op, p 3). Also, [p]ursuant to MCL552.1224, the tribunal of this statethat

issuesasupportorderconsistentwith this stateslaw hascontinuing,exclusivejurisdictionover

achild supportorderif thepartiesandchildrenatissueremainresidentsofthis state.Likine,

supra,2010WL 1568450,*3 (Appendix C, slip op, p 3). All challengesto thesupportorder

itself must be made in the Family Court having appropriate jurisdiction overthematter. Once

the support order is entered with notice or participation of the defendant in those Family Court

10

proceedings, the validity of the order is not atissuein thecriminal case. Accordingly,in the

criminal arena, the inability to pay is anonsequitur in proving thecommissionof theoffense.

Therefore, it follows that there is no defense of an inability to pay to thecriminal chargebecause

such is irrelevant to whetherthecrimewascommitted. SeeLikine, supra, wherein the Court

explained:

The right to present a defense is a fundamental element of due process, butit is not an absolute right. Peoplev Hayes, 421 Mich 271, 279; 364 NW2d635(1984). The right extends only to relevant and admissible evidence.PeoplevHackett,421 Mich 338, 354; 365 NW2d120 (1984). Evidenceis relevantif it hasany tendencyto maketheexistenceofany factthat is ofconsequenceto thedeterminationoftheactionmoreprobablethanit would be without theevidence.MRE 401. Theelementsofthecrime offelonynonsupportare(1) thedefendantwasrequiredby a decreeofseparatemaintenanceordivorceorderto supportachild or current or fonner spouse, (2) the defendant appeared in or received noticeby personalserviceoftheactionin whichtheorderwasissued,and(3) thedefendant failed to pay the required support atthetimeorderedor in theamountordered. People v Monaco, 262 Mich App 596, 606; 686 NW2d790 (2004),affd in part and revd in part on other grounds 474 Mich 48 (2006). Clearly,evidence ofthe inability to paywasnot relevantto any fact in issue. Therefore,thetrial courtdid not abuseits discretionby decliningto admittheevidence,anddefendantsconstitutionalright to presentadefensewasnot implicated. SeeKatt,468 Mich at 278; Kurr, 253 Mich App at 327. [Likine, supra, 2010 WL1568450,* 5 (Appendix C, slip op, p 5).]

2. THE SO-CALLED ELIMINATION OFA VOLUNTARY ACTUSREUSREOUIREMENTDOESNOT RENDERTHE STATUTEUNCONSTITUTIONAL.

Defendantarguesthat strict liability offenses cannot punish purelyinvoluntaryactsor

omissionsbecausetheactusreusofacrime mustbetheresultof avoluntarydeed. (Defendants

briefpp 13-14.) Defendant is incorrect when applying this concept to the felony non-support

statute. Thus, there is no error in MCL750.165 being construed as a strict liability offense.

In Likine, the Court rejected this claim as well, stating:

[The defendant]claimsthatherfailure to paythechild supportasorderedwasnotavoluntaryactbecauseit wascompletelyimpossiblefor her to pay,i.e., the actus neus component of thecrime waslacking. This argument,too, fails.

11

As our SupremeCourtheld in PeoplevMonaco, 474 Mich 48,56-58;710NW2d46 (2006),felonyfailure to pay child supportis notacontinuingcrime, it iscompleteatthetimethat theindividual fails to paytheorderedamountattheordered time. That is, the actusreus is thefailure to paythesupportasordered.As discussedabove,defendantwasaffordednumerousopportunitiesin thecivilproceedingsto establishher inability to paytheorderedamountof child support.Thosecivil proceedingsweretheproperforum,andthatwasthepropertime, toadjudicatesucha claim. Accordingly, defendantwasnot denieddueprocessonthe ground that, because the offense imposes strict liability, shewaspreventedfrom provingthather failure to pay child supportin compliancewith thecourtorderwasinvoluntary. [Likine, supra,2010WL 1568450,* 4 (Appendix C, slipop,p4).]

Indeed,by analogy,apurelyinvoluntaryactwould involve, for example,adriverrunning

aredlight becausethedriver behindhim had failed to stopandpushedthefirst driver into the

intersection.But if thefirst driversbrakesfailed to operatedueto mechanicalfailureandthe

driverhadno knowledgethathis brakesweredefective,somecourtswould find thedriverliable

under a strict liability while others would not. ContrastCity ofKetteringv Greene,9 Ohio 2d

26; 222 NE2d 638 (1996), with StatevKremer,262 Minn 190, 192; 114 NW2d88 (1962). The

key to finding the act voluntary was based on the drivers prior knowledge that his brakes were

defective. If he knows, and still drives the vehicle, his act of running the red light would be

considered voluntary on the premise that even though a person does not criminally intend the

harmcaused by his acts, he usually is in a position to prevent it with no more care than society

might reasonably exact from one who assumed his responsibilities.Kremen supna, 262 Minn at

192, quoting Monissettev UnitedStates,342 US246, 256; 72 S Ct 240; 96 L Ed 288 (1952).

In this case, Defendants act of failing to pay the amount of child support owed, as

previously judicially determined, was a voluntary act, much like running the red light with

knowledge his brakes were defective, because he not only failed to pay, he also failed to take

those steps available to him to modify or eliminate the support requirement (assuming, arguendo,

he had a legitimate reason not to pay). In this instance, Defendant requested, successfully, at

12

leastonceto havehis child supportmodified. TheFamily CourtsmodificationofDefendants

child supportathis requestclearlyestablishesthat Defendanthadthemeansto supporthis

children. Defendantscontinuedactnot to payhis child supportobligationwasvoluntarymuch

like a driverwho continuesto drive his carwith defectivebrakesandthenrunsared light. It is

not asituationwhereDefendanthadhis moneystolenby athiefon thewayto makehis payment

to theFriendof theCourt (similar to thedriverbeingpushedfrom behindby aseconddriver

througha red light).

Defendants failure to provide child support is the voluntary conduct here. Defendants

statedinability to paywould beonly a surroundingcircumstance.Defendanthadprior due

process notice and hearings to determine his child support obligation based on his ability to pay.

Defendants failure to pay the child support as determined by those court orders rendered his act

voluntary and criminal under the strict liability provisions of MCL750.165.

The Legislature plainly provided for criminal liability simply for not complying with a

court order of child support. The decisive language of MCL750.165 is that the individual does

not pay the support. There was no modifying language either before or after that phrase that

would impose anyscienterrequirement that must accompany the failure to pay the support in

the amount or at the time stated in the order. MCL750.165; Westman,supra, 262 Mich App at

191; Adams, supra, 262 Mich App at 98-99. The Legislature imposed a strict liability change in

the statute considering that those who face this sanction knew what they owed, to whomthey

owed it, andwhy they owed it. As stated in Adams,supra,Our courts repeatedly emphasize the

importance of construing a statute according to its plain language andrefraining from interfering

with the Legislatures authority to make policy choices.... Thus, an intent requirement cannot be

13

impliedin theabsenceof anylanguagesupportingsuchan interpretation.Adams, supra, 262

Mich App at96.

Laws enacted for the public welfare do not require a criminal intent because the

accused generally is in a position to prevent the harm. ... In this case, defendant was in a

position to prevent the harm by complying with or seeking modification of the court order

directing him to pay child support. Westman,supra,262 Mich App at 191. The Legislature

detennined that no additional culpable mental intent need be shown.

Ill. DEFENDANTWASNEITHERDENIED THE BENEFIT OF HISCOBBSAGREEMENT NOR INCARCERATED BASED UPON ANUNCONSTITUTIONAL CONSIDERATION OF HIS INDIGENCYAND~THEREFORE.THE TRIAL COURT DID NOTERRONEOUSLY DENY HIS MOTION TO WITHDRAW HISPLEA.

A. Standard of review

See Argument l.A.

B. Analysisofthe issue

A motion to withdraw plea after sentence is adjudged under the standard set forth in

MCR6.310(C), which provides:

Motion to Withdraw PleaAfter Sentence. The defendantmayfile amotion to withdraw the plea within 6 months after sentence. Thereafter, thedefendant may seek relief only in accordance with the procedure set forth insubchapter 6.500. If the trial courtdeterminesthat there was an error in the pleaproceeding that would entitle the defendant to have the plea set aside, the courtmust give the advice or make the inquiries necessary to rectify the error and thengive the defendant the opportunity to elect to allow the plea and sentence to standor to withdraw the plea. If the defendant elects to allow the plea and sentence tostand, the additional advice given and inquiries madebecome partof the pleaproceeding for the purposes of further proceedings, including appeals.

Accordingly, the defendant must demonstrate an error in the plea proceeding. Peoplev

Montrose,201 Mich App 378, 380; 506 NW2d565 (1993) (interpreting predecessor MCR

14

6.311). Defendanthasestablishednone. Neitherhashe establishedthat therecordshowshis

innocence,northathis trial counselwasineffective,eachconsidered,apparently,viableclaims

ofan error in thepleaproceeding.People v Haynes (After Remand), 221 Mich App 551, 558-

563; 562NW2d 241 (1997).

Furthermore, Defendants claim hasnothingto do with orderedrestitution. Indeed,he

wasnotorderedto pay$3,000.00by December8, 2008,or atotal of$8,000.00by May2009.

Instead,pursuantto his negotiatedpleaagreement,sentencing would be delayeduntil May2009

if Defendant paid $3,000.00 in restitution by December 8, 2008, andhewould notbe

incarcerated if he paid a total of $8,000.00 by May2009.

This agreementwasaperfectlyappropriateideaby thosepresentatthetime of

Defendantsplea,including theDefendant.Indeed,Defendantwasprivy to andknewbetterthan

theassistantprosecutingattorneyandthetrial courtwhetherhe hadtheability to makethese

agreed-uponscheduledpayments.Certainly,Defendantssilenceto thecontraryand his ultimate

breach make him culpable. Thus, Defendants incarceration was not based upon a violation of

any order to pay $3,000.00 in restitution by December 8, 2008, but rather, it was due, inter alia,

to his failure to make good on what he agreed to do.

Defendant references the delay in sentencing as partof the trial courts Cobbs2

commitment. Indeed, the trial court confirmed at Defendants plea proceedings that this delay in

sentencing was partof its two-step Cobbs commitment. (09/25/2008 Plea Tr, pp 6, 7.) The

second step was the money part. That is to say that, if Defendant paid $3,000.00 on or before

December 8, 2008, asagreed,sentencing would be further delayed until May2009, and if

Defendant paid the additional sum of $5,000.00 by May2009, asagreed,the court will not

2 Peoplev Cobbs,443 Mich 276; 505 NW2d208 (1993).

15

sentencethedefendantto any typeof incarcerationin theMuskegonCountyJailor Department

ofCorrections. (09/25/2008PleaTr, pp 3-4,6, 7.)

It is againstthisbackdropthat this issueis addressed.

1.

Generally, the Equal Protection Clause bars incarceration of an indigent offender for

involuntarily failing to paycourt-orderedrestitution. See,e.g., Tatev Short,401 US 395, 397-

400; 91 S Ct 668, 670-672; 28 L Ed 2d 130 (1971); Beardenv Georgia, 461 US660, 667-668;

103 S Ct 2064, 2070; 76 L Ed 2d 221 (1983); Peoplev Collins, 239 Mich App 125, 135-136; 607

NW2d760 (1999).

Ontheotherhand,thereis no constitutionalinfirmity in imprisoningan offenderwith the

meansto payrestitutionthatrefusesor neglectsto do so. Tate,supra, 401 US at 400; 91 S Ct at

672; Bearden,supra, 461 US at 668; 103 S Ct at 2070. Also, aswill bemorefully discussed

hereinafter, where the payment of restitution is partof a plea agreement (as it was here), the

Beardenline of cases does not apply and the Equal Protection Clause is not offended by

incarcerating an indigent defendant.

2.

First, Defendant failed to make sufficient bonafideefforts to seek or maintain

employment. Such unexercised ability to work and pay restitution does not bar incarceration vis-

à-vis the Equal Protection Clause.

Defendant claims that he was impecunious because of back problems, a heart issue and

the lack of available work in the Florida Keys. These claims do not sync with what the victim

said to the Court on December 8, 2008. She told the Court the following about Defendant:

16

MS. HARRIS: My nameis LavonneHarris. Mr. Harrishasstatedto menumeroustimes,in multiplephoneconversations,that I will neverseeanotherdime from him regardingour two children.

WhenIve called to askhim for helpwhenoursonhadabrokenhand for medical issues, I had-- Myinsurance didnt cover some of the specialneeds that he had. I couldntgetany help. He told meId never see anything elsefrom him.

I struggle every singledayto feedmy kids, to putclotheson theirback. I work full time. I work all of theovertimethat I possibly can. I supplyformy kids the best that I possibly can. My son dont even have winter apparel thisyear, because I cant afford it, because I cantgetany help from their father. Hehashadabsolutelyno contactwith themin ayearand ahalf.

THE TRIAL COURT: Hesayshesgot a lot ofhealthproblems,backproblems,andthingslike that. Haveyou seenthose?

MS. HARRIS: Theonly healthproblemsthathehasis--Hedoeshavean issuewith his back. Accordingto his heart,hehas-- WhenheandI were together, he had nothing wrongwith his heart. Sowheretheheartissue is coming from, I dont know. He has an addiction problem to alcohol anddrugs, is what he has.

THETRIAL COURT: All right.

MS. HARRIS: He has a problem with working. He hasother children that he did the exact same thing to. He wouldnt pay child support.So they were, therefore, adopted out, with the agreement that all back child

support would be dropped. [12/08/2008 Sentence Tr, pp 7-8.]

Defendant had an opportunity to challenge what Ms. Harris said. He claimed that it was

not true that he had not paid support. Its just over the last year since Ive lost myjob that Ive

had a hard time. But its always been paid since the divorce.... I dont even know where all the

arrearscame from. I meanthere was arrears when mydivorce finalized. (12/08/2008 Sentence

Tr,plO.)

The trial court obviously believed Ms. Han-iss account of things. Defendant refused to

help her and specifically told her numerous times, in multiple phone conversations, that [she]

will never see another dime from him regarding [their] two children. (12/08/2008 Sentence Tr,

17

p 7.) Also, sherelatedhow Defendantdid this beforewith his otherchildren. (12/08/2008

Sentence Tr, p 8.) The record supports her position that Defendant has an alcohol and drug

problem, which accounts for why he does not work or where he chooses to spend his money.

Indeed, people with back problems andheart problems (assuming the claims veracity) find and

maintain employment and support their children. Defendant, on the other hand, has chosen to

live in the Florida Keys where, apparently, jobs are scarce (at least according to him). This

represents the unexercised ability to work. Thus, his failure to pay was not due to indigence; but,

instead, it was due to his voluntary and articulated decision not to pay Ms. Harris another dime

in child support. That clearly was the conclusion of the trial court and this finding is supported

by the record.

Accordingly, the Equal Protection Clause was not violated in this case. As explained in

Bearden,

Both Williamsand Tate carefully distinguished this substantive limitationon the imprisonment of indigents from the situation where a defendant was atfault in failing to pay the fine. As the Courtmade clear in Williams, nothing inour decision today precludes imprisonment for willful refusal to pay a fine orcourt costs. 399 US at 242 n 19; 90 S Ct at 2023 n. 19. Likewise in Tate, theCourt emphasize[d] that our holding today does not suggest any constitutionalinfirmity in imprisonment of a defendant with the means to pay a fine who refusesor neglects to do so. 401 US at 400; 91 S Ct at 672.

This distinction, based on the reasons for non-payment, is of criticalimportance here. If the probationer has willfully refused to pay the fine orrestitution when he has the means to pay, the State is perfectly justified in usingimprisonment as a sanction to enforce collection. See ALl, Model Penal Code §302.2(1) (Proposed Official Draft 1962). Similarly, aprobationersfailure tomakesufficientbonafideeffortsto seekemploymentor borrowmoneyin order topay thefine or restitution mayreflectan insufficientconcernforpayingthedebthe owesto societyfor his crime. In sucha situation,theStateis likewisejust~fledin revokingprobationandusing imprisonmentasan appropriatepenaltyfor theoffense. [Bearden,supra,461 US at 668; 103 S Ct at2070. Emphasissupplied.]

18

In this case,Defendanthasfailed to makebonafideefforts to seekand maintain

employment. He articulated his motive for this clearly to Ms. Harris: Mr. Harris has stated to

menumerous times, in multiple phone conversations, that I will never see another dime from

him regarding our two children.... I couldnt get any help. He told meId never see anything

else from him.... He has other children that he did the exact same thing to. He wouldnt pay

child support. (12/08/2008 Sentence Tr, pp 7-8.)

According to Defendant he has sought disability but this has been denied. Assuming the

veracity of that allegation, why would it have been denied? The reason is patent: he is not

considered disabled by the very entity that reviews such claims. Thus, he is able to work, but

chooses not to do so. As noted by Ms. Harris, [h]e has a problem with working. (12/08/2008

Sentence Tr, p 8.)

Lounging in the Florida Keys drinking Hurricanes or Pine Coladas under an umbrella as

the sounds of Jimmy Buffets Margaritaville echo in his ears while his children in Michigan go

hungry and without suitable winter attire is not only immoral, it represents a justification to

incarcerate this Defendant.

3.

There is another issue here that actually distinguishes this case from the Tate,supra,and

Bearden,supra, line of cases. That issue is whether Defendants agreement to pay $3,000.00 by

December 8, 2008, and $5,000.00 by May2009 in exchange for a delay in sentencing and no

incarceration removes this case from the protections of the Equal Protection Clause. Several

appellate courts in other jurisdictions have addressed this issue andconcluded that a defendants

failure to pay based upon claims of indigence would not bar incarceration vis-à-vis the Equal

Protection Clause.

19

In Dickeyv State,257GaApp 190; 570SE2d 634(2002),thecourtheldthat a

defendantspleaagreementto payrestitutiontrumpedhis laterclaimof indigencepermitting

incarceration when he failed to honor his agreement:

In this case, Dickey was not without fault. Whenhe agreed to the pleabargain, Dickey entered into a contract. At the time, Dickey knew that he wouldbe required to pay $100,000 of restitution by August 15, 2001. Dickey also knew,better than the assistant district attorney and the trial judge, whether he had the

ability to make this payment. If Dickey had any doubt concerning his ability tomake the payment, he should have informed the other parties before everyoneagreed to the terms. There is no evidence that he did so. Dickeys silence, whenhe should have spoken, and his ultimate breach, make him culpable. He was notwithout fault.

Moreover, this case is distinguishable from Bearden. The Courts opinionin Beardenreflects that the trial court unilaterally imposed the probated sentence,fines, and restitution as an alternative to incarceration. Here, Dickey negotiatedand agreed to his probated sentence and the payment of restitution to avoidincarceration.

In thiscase,we can discernno reason why Dickey should be entitled tothe benefit of a probated sentence when he breached his agreement with the State.Again, unlike Bearden,Dickey was not involuntarily sentenced by the courttopay a fine as a condition of probation. Dickey negotiated payment of restitutionto avoid what likely would have been significant time in prison. Having breachedthe plea agreement that he negotiated, Dickey cannot now insist that he remain onprobation and be excused from performance due to indigence. As pointed out bythe court in Statev Caballero, [t]o hold otherwise would permit defendants,either in good or bad faith, to bargain for payment of a fine in exchange for asuspended sentence, renege, and then avoid incarceration or any other punishmentfor the offense committed. Wedo not believe the BeardenCourt intended suchresult. Accordingly, we find no merit in Dickeys argument that Beardenrequiredthe trial court to find he willfully refused to pay restitution before it revoked hisprobation. [Dickey, supra, 257 GaApp at 192, 194; 570 SE2d at 636, 637.Footnotes omitted.]

See also StatevNordahl, 680 NW2d247, 251-252, 253 (ND, 2004)(distinguishingBeardenand

holding that allowing a defendant to avoid restitution by subsequently pleading indigency after

entering into a valid plea agreement would cause a windfall to the defendant); Statev Jacobsen,

20

746NW2d 405, 410-411(ND, 2008)(same);Pattonv State,458 NE2d657, 660 (md Ct App,

1984) (distinguishingBearden,wherethetrial courthadimposedtheconditionson the

defendant,andheldthatthedefendantknewbetterthananyonewhetherhehadtheability to

raise money, and therisk heranif hedid not; thus,althoughthedefendanthadlost his job and

couldnot find anotherone,and,therefore,becameunableto payrestitutionpursuantto his plea

agreementandprobatedsentence,no EqualProtectionClauseviolation in incarceratinghim).

In CommonwealthvPayne,602 NE2d 594 (Mass App Ct, 1992),thecourtstated:

Unlike the circumstances in Beardenand Gomes,wheretheprescribedpunishments were fines, here the statutory violations were punishable bysentences to State prison. There was,therefore,a legislativeexpressionthat theStates penological interests included incarceration. As matter of sound judicialdiscretion, it was open to the sentencing judge, in the event of a finding of guiltyof the offenses charged, to impose sentences requiring incarceration. But for theplea bargain, as we have noted, the second Superior Court judge would haveopted for some imprisonment. Here, the plea bargain itself was tantamount to arepresentation by Payne that he could pay the restitution. Otherwise there wouldhave been no bargain, and sentencing, assuming he were found guilty, would havetaken its normal course. Had the judge opted for incarceration as matter ofpreference, Paynes financial status would have been irrelevant; had the judgedecided that a fine or restitution was not practicable because of the defendantsinability to pay, a sentence of imprisonment would not have been invalid underthe Constitution. See Beardenv Georgia,461 US at 669-6 70; 103 S Ct at 2071.

***

Paynewasofferedtheprivilegeofmakingrestitutionaspartof a pleabargain, with the express condition that, should he not hold up his end of thebargain, a sentence of incarceration would be imposed. Such a plan ofpunishment is consistent with the discretion of a judge to choose betweenincarceration and payments, or a combination of them, in the first instance.

Although the judge did not hold a separate hearing on Paynes ability topay, there is implicit in the judges remarks to him at the May 13, 1991,sentencing proceeding a finding by the judge that Payne bad made no effort to payrestitution in whole or in partand that he had made no effort to liquidate assetswhich he owned. Such a view was justified for the reason, if no other, that thiswas the third occasion on which the defendant had asked for time to makerestitution and, at the time of the May 13, 1991, sentencing hearing, he had notreduced the sum due by so much as a dollar.

21

The determination by the Superior Court judge that he possessed authorityto impose the sentence of incarceration is affirmed. [Payne, supra,33 Mass AppCt at 556-557; 602 NE2d at 597.]

In this case, also unlike the circumstances in Beardenwhere the prescribed punishments

were fines, Defendants sentencing guidelines called for incarceration. In other words, a court is

required to sentence a defendant in accordance with the appropriate minimum sentence range

under the sentencing guidelines unless there is a substantial and compelling reason for departure

and the court states its reasons for departure on the record. MCL769.34(2) and (3); Peoplev

Buehler,477 Mich 18, 24; 727 NW2d127 (2007). Indeed, if the guidelines call for incarceration

a court cannot place the defendant on probation absent articulating substantial and compelling

reasons for doing so on the record. Buehler,supra,477 Mich at 24 (the defendant did not

dispute that the appropriate sentence range was 42 to 70 months imprisonment [and] ... there is

no question that defendants probationary sentence does not fall within that range [and,]

[t]herefore, [because the trial court had not articulated substantial and compelling reasons for the

departure of placing the defendant on probation,] defendants sentence [was held] invalid under

the sentencing guidelines).

In this case, Defendants sentencing guidelines called for a minimum sentence of 10

months imprisonment. Thus, absent substantial andcompelling reasons, Defendant was going to

be incarcerated. As in Payne,supra, there is a legislative expression that the States penological

interests included incarceration for this Defendant. Under MCL769.34(10), a sentence within

the guidelines range must be affirmed on appeal unless the trial court erred in scoring the

guidelines or relied on inaccurate information (neither of which is claimed by Defendant).

Defendant has presented nothing to suggest that substantial andcompelling reasons existed to

warrant anything but incarceration. Therefore, he cannot be heard to complain about being

22

incarceratedfollowing his breachof thepleaagreement.In otherwords,be cannotshow

prejudice. His minimum sentence of 15 months is within the guidelines. It is only 5 months

greater thanthe 10-monthminimumsentencerequiredundertheguidelines. GivenDefendants

substantial criminal record, a 15-month minimum sentence is rather light.

Accordingly, Defendants Equal Protection argument is without merit.

IV. DEFENDANTWAIVED HIS CLAIM THAT THE TRIAL COURTERRONEOUSLY ADOPTED THE CHILD-SUPPORTARREARAGE IN FAMILY COURT AS THE RESTITUTIONAWARD DESPITE ITS FAILURE TO FIND THAT THIS AMOUNTWAS ALL THE RESULT OF CRIMINAL CONDUCT.

A. Standardofreview

Apparent error that has been waived is extinguished.Riley, supra, 465 Mich at449,

citing Peoplev Carter, 462 Mich 206, 215-216;612NW2d 144 (2000). Whenacourtproceeds

in a manner acceptable to all parties,it is not resolving a disputed point and thus does not

ordinarily render a ruling susceptible to reversal. Riley, supra,465Mich at 449. Because

defendant waived, as opposed to forfeited, his rights under the rule, there is no error to review.

Carter, supra, 462 Mich at 219. Waiver is grounded in the concept that [c]ounsel maynot

harbor error as an appellate parachute. Id., 214, quoting People v Pollick, 448 Mich 376, 387;

531 NW2d159 (1995), which quoted People v Hardin, 421 Mich 296, 322-323;365 NW2d 101

(1984). Deviation from a legal rule is error unlesstherulehasbeenwaived. Carter,

supra,462 Mich at 214, quoting United States v Olano, 507 US725, 732-733; 113 S Ct 1770;

123 L Ed 2d 508 (1993). Accordingly, regardless whether the claim presented appears to have

merit, if it waswaived,theerror advancedis extinguishedandnot subject to appellate review.

23

B. AnalysisoLtheissue

1.

Defendant objects to the Trial Courts setting restitution at $12,781.39 based upon the

FriendoftheCourtcalculationsofthechild supportarrearage. (Defendants motion, p 20.)

Defendant acknowledges in his motion that the$12,781.39figurewasprovidedto thetrial court

via the Presentence Investigation Report (PSIR), p 2 (Defendants motion, p 20), which is

presumed to be accurate, Peoplev Grant,455 Mich 221, 233; 565 NW2d389 (1997); Peoplev

Ratkov,201 Mich App 123, 125; 505NW2d866, 888 (1993). At sentencing, when Defendant

wasaskedwhetherhehadanyadditionsor correctionsto maketo thePSIR,Defendanttold the

trial court No, Sir. (12/08/2008 Sentence Tr, p 5.) Thus, this issue is waived and the trial

court had everyright to accept, as true, the child-support arrearages as being $12,781.39,

justifying the setting of restitution at this amount. See, e.g., Peoplev Gahan,456 Mich 264; 571

NW2d503 (1997), wherein this Honorable Court held that, when a defendant fails to request an

evidentiary hearing regarding the amount of restitution imposed, this is a waiver of his

opportunity for an evidentiary hearing. Id., 276. The Court also stated:

It is incumbent on the defendant to make a proper objection and request anevidentiary hearing. Absent such objection, the court is not required to order, suasponte, an evidentiary proceeding to determine the proper amount of restitutiondue. Instead, thecourt is entitled to rely on theamountrecommendedin thepresentenceinvestigationreport which is presumed to be accurate unless thedefendant effectively challenges the accuracy of the factual information. [Id. at276 n 17 (emphasis supplied; citations omitted).]

Here, Defendant not only failed to challenge the amount of $12,781.39 as being correct,

he affirmatively informed the trial court that he had no additions or corrections to make to the

PSIR.

24

Accordingly, under these circumstances, where the trial court had invited Defendant to

offer additions or corrections to the PSIR, and he not only failed to do so, but affirmatively

informed the trial court that he had none, this constituted a waiver of his opportunity for an

evidentiary hearing or a challenge to the amount contained in the PSIR. This waiver

extinguished any alleged error stemming from the trial courts determination of the amount of

loss sustained by the victim as a result of Defendants criminal activity or course of conduct.3

Carter, supra, 462 Mich at 215 (citation omitted).

2.

Restitution is constitutionally and statutorily required. Const 1963, art 1, § 24;MCL

769.la; MCL780.766(2). Under the Crime Victims Rights Act, MCL780.766(2), a defendant

must make full restitution to any victim of the defendants course of conduct.,.. This

Honorable Court in Gahanexplained that this statutoryphraseis to be given a broad

construction andthat the defendant should compensate for all the losses attributable to the

illegal scheme that culminated in his conviction, even though some of the losses were not the

factual foundation of the charge that resulted in conviction. Gahan,supra,456 Mich at 271,

272. Again, the amount of loss sustained by the victim was specified in the PSIR, which is

presumed to be accurate, Grant, supra. Because Defendant did not challenge the accuracy of the

restitution amount specified in the PSIR at sentencing, the trial court was entitled to rely on that

amount. Gahan,456 Mich at 276 n 17.

In PeoplevLaw, 223 Mich App 585, 589; 568 NW2d90 (1997), revd in parton other

grounds 459 Mich 419; 591 NW2d20 (1999), the Court determined that a defendants failure to

MCL769.la; MCL780.766(2); see also People v Gahan, 456 Mich 264, 272; 571 NW2d503 (1997).

25

paychild supportfell within thescopeof whatwould be classifiedasadefendantscourseof

conduct:

In the case before us, we agree with the trial court that the unpaid childsupport and medical expenses were attributable to defendants course of conductof neglecting his children. Persails, supra. Moreover the expenses were easilyascertainable. Tyler, supra. Documentation was submitted to the trial courtduring the restitution hearing verifying the amounts owed. Finally, the losseswere the direct result of defendants criminal act of abandoning his children. Id.Therefore, we find that the trial court did not abuse its discretion by orderingdefendant to pay the back child support and Christines unpaid medical bills.

As canbe seen, the Court also permitted the documentation from the divorce proceedings

that supported the amount the defendant was ordered to pay.4 Thus, Defendants contention that

the trial court erred in accepting the unchallenged arrearage amount of $12,781.39 in the PSIR

that came from the divorce proceedings as the restitution amount is without merit.5

Finally, it is noted that this Honorable Court specifically affirmed the Court of Appeals

opinion when it remanded the case and ordered that the restitution order include the amount of

At an evidentiary hearing to determine the amount of restitution, it was established that,pursuant to defendants divorce judgment of May14, 1979, defendant was to pay $43 a week inchild support[.] Peoplev Law,459 Mich 419,421; 591 NW2d20 (1999).

Defendant never denied that this was the amount be owed for arrearages in the divorceproceedings. Instead, he only indicated that I dont even know where all the arrears came from.I meanthere was arrears when mydivorce finalized. (12/08/2008 Sentence Tr, p 10.) Thiscomment hardly represents an actual challenge to the arrearage amount. Somesimple math anda fair inference demonstrate that Defendant owed at least $12,781.39 in child-support arrearagesat the time of sentencing. It was undisputed that Defendants child support was last set in 2006at $612.00 per month. (Presentence Investigation Report, p 2.) It was also undisputed thatDefendant had not paid any child support since June 1, 2007. (Id.) He was sentenced onDecember 8, 2008. At that time he would have been in arrears $ 10,404.00.00if we onlyconsidered the time between June 1, 2008, and December 1, 2008 (17 months x $612.00 =

$10,404.00). Defendant also acknowledged that he was in arrears when the divorce wasfinalized. (12/08/2008 Sentence Tr, p 10.) Thus, we know that Defendants arrearage had tohave been greater than $10,404.00. This is also supported by Ms. Harriss statements to theCourt that she had called Defendant multiple times trying to get money from Defendant.(12/08/2008 Sentence Tr, pp 7-8.) Accordingly, there was no error in accepting the amountctated in the undisputed Presentence Investigation Report.

26

unpaid support for the entire time the defendant had been in arrears. People v Law, 459 Mich

419, 431; 591 NW2d20(1999).

3.

Defendants obligation for child support is not something taken from thin air by the

Family Court. The amount to be ordered is governed by MCL552.605(2), which provides:

Except as otherwise provided in this section, the court shall order child support in an amount

determined by application of the child support formula developed by the state friend of the court

bureau as required in section 19 of the friend of the court act, MCL552.5 19. Again, if

Defendant wishes to challenge the amount ordered as inconsistent with the child support

formula, he must do so in that forum (viz., the Family Court) and he may, of course, appeal any

disposition of that issue to the Michigan Court of Appeals.

WhenDefendant fails to pay this statutorily mandated and court-ordered amount of child

support, which failure generates a criminal complaint under MCL750.165, what is the victims

loss from Defendants criminal activity or course of conduct? The loss is that which

Defendant was supposed to pay. This is a very simple thing to understand.

Defendant again suggests, however, that the loss might include[e] wrongly imposed

obligations at times when the defendant was indigent andunable to work. This has been dealt

with above. In other words, there areprocedures available to a person ordered to pay child

support in the Family Court when indigent and unable to work to have the child-support

obligation modified. That is the place and time to raise this issue rather than attempting to do so

collaterally in the criminal proceeding. Also, again, Defendant did not present an effective

challenge at the time of sentencing and, in fact, stated, affirmatively, that be had no corrections

or additions to make to the PSIR, thus waiving this issue.

27

CONCLUSION

For the foregoing reasons, Defendants application for leave to appeal should be denied.

Respectfully submitted,MUSKEGONCOUNTYPROSECUTORAttorney for Plaintiff

Dated: August 10, 2010 __________________________Assistant Prosecuting Attorney

BUSINESSADDRESS& TELEPHONE:Hall of Justice, Fifth Floor990 Terrace StreetMuskegon,MI 49442(231) 724-6435

28

IN THE CIRCUIT COURT FOR THE COUNTY OF MUSKEGONSTATE OF MICHIGAN

LAVONNE KAY HARRIS,

Plaintiff, FILE NO. 03-020805-DM

HON.JOHNC.RUCK ~V

..%

SCOTT BENNETT HARRIS,

Defendant,—

Shon A. Cook, P51452 ~(ib SCOTT BENNETT HI~RRI&~Cook & Houghtaling, PLC c.. ~4f~efendantAttorneyfor Plaintiff ~~WHITEHALL ROAD, LOT 391159 Peck Street / W41~I~jALL,Ml 49461Muskegon, MI 49441(231) 722-2222

DEFAULT JUDGMENT OF DIVORCE

At a session of said Court held at the Muskegon CountyBuild~inthe City of Muskegon, State of Michigan on the/~ day of October 2003.

PRESENT: HON. Jot-IN C. RUCKFamily Court Judge

Upon reading the Plaintiffs Complaint and hearing the proofs taken in open

court, it satisfactorily appears to this Court that the material allegations in Complaint are

true, and that there has been a breakdown in the marriage relationship to the extent

that the objects of matrimony have been destroyed and there remains no reasonable

likelihood that the marriage can be preserved;

THEREFORE, on motion of Shon A. Cook, Attorney for Plaintiff, LAVONINE KAY

HARRIS; This Court ORDERS the marriage between the Plaintiff, LAVONNE KAY

HARRIS; arid the Defendant, scoir BENNETT HARRIS, be dissolved and a divorce

f~D APPENDIX AChris A. Moughtaling, P5].? 722—2222

t u~r~ ~ t r. .1) 722—8312

ALIMONY

IT IS FURTHER ORDERED that there is no present award of alimony to efther

party, but the issue of alimony shall be and is hereby reserved but for the sole purpose Of

insuring the payment of financial obligations held by the respective parties at the time of

this orderas contained in this divorce decree. Upon proper petition, the Court shall award

alimony but only to the extent of the respective partys financial obligations as further set

forth. Upon payment of said debt obligations, there shall be no further award/reservations

of alimony to either party and alimony is forever barred and alimony is hereby expressly

waived by all parties for any purpose other than the payment of financial obligations.

CUSTODY

IT IS FURTHER ORDERED that the Plaintiff and Defendant shall have joint legal

custody of the parties minor children. namely:

ZACHERY SCOTT HARRIS, dob 09115196

TIA RAE HARRIS, dob 05l04100

with the Plaintiff, LAVONNE KAY HARRIS, having primary physical custody of the children

until they have attained the age of eighteen years, or until the further Order of this Court.

A parentwhose custody or parenting time of a child is governed by this order, shall

not change the legal residence of the child except in compliance with section 11 of the

Child Custody Act of 1970, 1970 PA 91, MCL722.31 ,which prohibits moving children out

of the state or greater than 100 miles from the non-custodial parent without a court order.

IT IS FURTHER ORDERED that the parties shall share decision making and

authority as to the important decisions affecting the welfare of the children

Ch~i.sA. Houghtaling, PS) ~ Phone: (231) 722—2222D I Fax: (23].) 722—8312

IT IS FURTHER ORDERED that joint legal custody of the parties minor child is

subject to the following:

1. This Judgment of Divorce terminates the legal relationship of the parties ashusband and wife. Itdoes not terminate the rights and responsibilities of theparties as parents. The Court expressly affirms that it is in the best interestsof the child to have a positive relationship with each parent. Accordingly, itis the legal and moral responsibility of each parent to take such action asfrom time to time is required to build and maintain a strong and positiverelationship between the child and each parent. The custody and parentingtime provisions of this Judgment shall be subject to the following guidelines:

a. The parties shall consult as often as may be necessary concerningthe childs education, health, vacation activities, career plans andother significant decisions or events.

b. The parent having physical control of the child may decide and takeappropriate action concerning all routine matters relatingto the childscurrent activities which are not inconsistent with the parents jointplans.

2. Each party to this Judgment shall:

a. Keep the other parent informed as to name, location, and telephonenumber of a third party care giver;

b. Immediately notify the other party ofany illness or injury that requireshospitalization;

c. Haveauthority to authorize emergency and routinehealth procedures.An authorized child care giver or school officials may also authorizesuch emergency medical procedures as may reasonably be requireduntil a parent is available to give such consent;

d. Take all reasonable steps designed to foster a feeling of affectionbetween the child and the other parent; AND

e. Absolutely refrain from doing anything which might estrange the childfrom the other parent or impair the childs high regard for the otherparent, thiswould include taking steps to prevent either of the partiesparents, siblings, spouses, or any other persons from doing same.

Chris A. Moughtaling, P51~ Phone: (231) 122-2222COOK& HOUGMTALING, ?.L.( Fax: (231) 122-8312

INHERENT RIGHTS OF CH1I~P.~EN

IT IS FURTHER ORDERED that the minor child of the parties shall have the

inherent rights to the natural affection and love of both Parents, and neither parent shall

do anything to estrange, discredit, diminish or cause disrespect for the natural affection

of the child for the other parent.

PARENTING TIME

IT ~SFURTHER ORDERED that the Defendant, SCOTT BENNETT HARRIS,

shall have reasonable rights of parenting time with the minor children of the parties

any times mutually agreed to by the parties.

CHILD SUPPOBI

IT IS FURTHERORDERED that the Defendant, SCOTT BENNETTHARRIS, shall

pay to the Plaintiff, LAVONNE KAY HARRIS, through the Muskegon County Friend of the

Court, the sum of ONE HUNDRED THIRTY NINE DOLLARS ($139.00) per month,

pursuant to the Michigan Child Support Guidelines, for the supportand maintenance of the

minor children, said sum being $26.00 per month for one child, until the minor childrens

~8~birthday or graduation from high school. In any event, child support shall not be paid

after the child has attained the age of 19 and one-half.

FRIEND OF THE COURT CHILD SUPPORT PROCEDURES

IT IS FURTHER ORDERED that both parties shall inform the Friend of the Court

of any occupational or drivers licenses they may hold pursuant to MCL 522.603(6)(c)

MSA 25.164(3)(6)(c).

Chris A. Moughtaling, P51~~ Phone: (231) 7222222COOK & HOUGHTALING. P.L.C - Fax: (231) 7228312

IT IS FURTHER ORDERED that the Friend of the Court may impose liens by

operation of law and that payers real and personal property can be encumbered and

seized if an arrearage accrues in an amount greater than the amount of periodic

support payments payable for one year under the payers support order pursuant to

MCL 522.603(6)(b).

IT IS FURTHER ORDERED that except as otherwise provided in Section 3 01

the Support and Visitation EnforcementAct, Act No. 295 of the Public Acts of 1982,

being section 552.603 of the Michigan Compiled Laws, a support order that is part of a

judgment or is an order in a domestic relations matter as that term is defined in section

31 of the Friend of the Court Act, Act No. 294 of the Public Acts of 1982, being Section

552.502 of the Michigan Compiled Laws, is a judgment on and after the date each

support payment i~due,with full force, effect, and attributes of a judgment of this state,

and is not, on and after the date it is due, subject to retroactive modification.

IT IS FURTHER ORDERED that, pursuant to MCL 552.605d(1)(a), if a child is

under states jurisdiction and is placed in foster care, or in the care of another, support

payable under this order shall be assigned to that department.

IT IS FURTHER ORDERED that, pursuant to MCL 552.605D, the Friend of the

Court may consider the person legally responsible for the actual care, support and

maintenance of a child(ren) for whom support is ordered as the recipient of support for

the child(ren) and may redirect support paid for that child(ren) to that recipient of

supp.ort, subject to the procedures prescribed in section 5d of the Support and

Parenting Enforcement Act.

Chris A. Houghtaling, P517~ Phone: (231) 7222222COOK & MOUGHTALING, P.L.C Fax: (231) 722-8312

If the Payor resides full-time with a child(ren) for whom support is payable under

this Judgment, support for that child abates in accordances with the policies established

by the Michigan Friend of the Court Bureau and the Parenting Time Enforcement Act.

INCOMEWITHHOLDINGANDHANDLINGFEES

IT IS FURTHERORDERED that an orderof incomewithholding shall enter pursuant

to the Order of this Court. The amount withheld shall not exceed the amount allowed

under 15 USC 1673 of the Consumer Credit Protection Act. If there is more than one order

to withhold income for support, fees, or health care coverage premiums against a payer

or parent, the total amountwithheld will not exceed the limits imposed by 15 USC 1673 and

the employer will give priority to the orders as indicated in MCLA 552.611a, MSA

25.164(11ay~

IT IS FURTHER ORDERED that the Defendant shall pay support by mail

through the Muskegon County Friend of the Court until such time as it is withheld

from the Payors paycheck.

ARREARAGES

IT IS FURTHER ORDERED that any child support arrears incurred in this matter

up to and including the date of the entry ofthis Judgment are hereby preserved.

IT IS FURTHER ORDERED that pursuant to MCLA 552.603, MSA 25.164(3),

and subsequent legislation, an 8% surcharge shall be added to all unpaid balances on

December 3l~and June30

th of each year (4% on December 31st and 4% on June30

th),

by the Office of the Muskegon County Friend of the Court, and all such sums shall be

forwarded to the payee by the Office of the Muskegon County Friend of the Court.

Chri.~ A. Houghtaling, ~ Phone: (231) 722—2222COOK & HOUGHTALING, P.L.C Fax: (231) 7228312

To avoid this surcharge, a child support account must be paid in full by the

close of business on December31

st and June 30th of each year.

CHILD CARE

IT IS FURTHER ORDERED that the parties shall splitany necessary child care that

is work related equally and paid directly by either party to the day care provider.

LIFE INSURANCE AND PENSION

IT IS FURTHER ORDERED that the Plaintiff, LAVONNE KAY HARRIS, shall

receive 100% of the Defendants 401k Plan from K.L. Industries by way of a Qualified

Domestic Relations Order (QDRO) to be prepared and attached with the Court by the

Plaintiffs Attorney of Record.

IT IS FURTHER ORDERED that, except as specifically provided herein, each of

the parties shall be the sole owners of any life insurance that they have taken out

during the period of their marriage in the life of the other, pension, annuity, IRAs,

401 (k)s, or retirement benefits; any accumulated contributions to any pension, annuity,

IRAs, 401(k)s, or retirement benefits, or any right or contingent right in and to any

vested or unvested pension, annuity, IRAs, 401(k)s, or retirement benefits.

IT IS FURTHER ORDERED that, exc,ept as specifically provided herein, either

parties right as the beneficiary to the other partys life insurance that they have taken

out during the period of their marriage in the life of the other, as well as any pension,

annuity, IRAs, 401(k)s, or retirement benefits, any accumulated contributions to any

pensio~,annuity, IRAs, 401(k)s, or retirement benefits; or any right or contingent right

in and to any vested or unvested pension, annuity, IRAs, 401(k)s, or retirement

Chris A. Moughtaling, 251 1 Phone: (231) 722~2222COOK £ HnrTCWr~LING. P.L.C Fax: (231) 722—8312

benefits is hereby extinguished, and both Plaintiff and Defendant are hereby

responsible for notifying his or her own life insurance company and/or pension plan

administrators regarding the change in beneficiary. Failure by the parties to notify

their Plan Administrator regarding a change in beneficiary status could result in

the former spouse receiving the benefit.

HEALTHINSURANCE

IT IS FURTHER ORDERED that, pursuant to MCR 3.211 (E)(3); MCL 552.452,

MSA 25.222; MCL 722.27, MSA 25.31 2(7); MCL722.3; MSA 25.244(3); MCL 722.717;

MSA 25.497; MCL 552.16; MSA 25.96, health care coverage, including, Medical,

Hospitalization, Optical and Dental Insurance, shall be obtained and maintained by

either or both parents, if available as a benefit of employment at no cost, or minimal

expense. The name of the insurance company, health care organization, or health

maintenance organization, the policy, certificate, or contract number; and the names

and birth dates of the person for whose benefit the health care coverage is maintained

shall be set forth.

IT IS FURTHER ORDERED that the Plaintiff and Defendant shalt share all of the

childrens Medical, Hospitalization, Optical and Dental expenses that may exist after all

insurance, whether carried by the Plaintiff or the Defendant, or both, is applied tà said

Medical Hospitalization, Optical and Dental expenses, with Plaintiff paying 43% of all

remaining expenses, and Defendant paying 57% of all remaining, expenses, for as long

as the minor children are eligible to be covered by a health insurance policy of one of

the parties, provided that the expenses for health services are medically necessary and

provided that both parties consent to such health care, if reasonably feasible.

Chris A. Houghtaling, p51~ ~ Phone: (231) 7222222COOK& HOUGHTALING, P.L.L Fax: (231) 722~~8312

IT IS FURTHER ORDERED that, pursuant to MCL 552,603(7)(e), a copy of this

Judgment of Divorce shall be forwarded to the Plaintiff/Defendants current and

subsequent employers and insurers, by the Plaintiff/Defendant, within 30 days from the

entry of the Judgment, when insurance is available through said place of employment.

IT IS FURTHER ORDERED that the Plaintiff/Defendant may contest this action

by requesting a review or hearing concerning the availability of health care coverage at

a reasonable cost through the Friend of the Court.

INCOME AND HEALTHINSURANCESTATUE

IT IS FURTHER ORDERED that each party shall keep the Friend of the Court

informed of the name and address of his or her current source of income and of any

health care coverage that is available to him or her as a benefit of employment or that is

maintained by him or her; the name of the insurance company, health care

organization, or health maintenance organization; the policy, certificate or contract

number; and the names and birth dates of the persons for whose benefit he or she

maintains health care coverage under the policy, certificate or contract.

TAX DEPENDENCY EXEMPTIQN

IT IS FURTHER ORDERED that the Plaintiff shall claim the minor children as a

dependency exemption on all future Federal, State and Local Income Tax Returns.

ADDRES$E~

IT IS HEREBY STATED that the present address of Plaintiff, LAVONNE KAY

HARRIS, is:

Chris A. Houghta1ing~ ~ Phone: (231) 7222222COOK L TJc1rTr,H1~ALING. P.L.C Fax: (231) 722—8312

7515Whitehall RoadWhitehall, Ml 49461

PHONE: no phoneSS#: 380-06-1383EMPLOYER. unemployed

IT IS FURTHERSTATED that the address of Defendant, SCOTT BENNETT

HARRIS, is:

PHONE:SS#:EMPLOYER:

IT IS FURTHER ORDERED. that both the Plaintiff and Defendant shall forthwith

notify the Office of the Friend of the Court for Muskegon County, Michigan, of any change

of address hereafter so long as this Judgment remains operative within 21 days from said

change.

PROPERTY SETTLEMENT

IT IS FURTHERORDERED that, except as provided for herein, the Plaintiff and the

Defendant shall each receive all marital/personal property currently in his/her possession

as of the date of this Judgment.

ALLOCATIONOFMARITAL DEBT

IT IS FURTHER ORDERED that both the Plaintiff and Defendant are responsible

for the payment of any marital debt that remains in their individual names and shall hold

the other harmless from payment of same.

Chris A. Houghtaling, P51~~ Phone: (231) 722-2222COOK& HOUGHTALING, P.L.( Fax: (231) 7228312

RETENTION OF JURISDICTION

IT IS FURTHER ORDERED that this Court specifically reserves and retains

jurisdiction over this cause and the parties thereto for the purpose of assuring

compliance with the executory provisions of this Judgment and reserves the right to

make such other and further Orders as shall be necessary to implement the same.

DOWER

IT IS FURTHERORDEREDthat the foregoing property provisions made for each

party shall be in lieu of any dower interest of the parties in the property of the other, and

shall be in full satisfaction of any claim or claims that either party may have in the others

property or in property owned in the future.

RECORDATION OF JUDGMENT

IT IS FURTHER ORDERED that each party shall execute, acknowledge and deliver

to each other, as and when required, any and all deeds, assignments, insurance

applications and/or other instruments of release, assurance, transfer or conveyance

required in order to effectuate the terms and provisions hereof. In the event either of said

parties shall fail, refuse or neglect to execute, acknowledge and deliver any instrument

required in order to implement the terms and provisions of this Judgment of Divorce, the

Judgment shall be self-executing and shall stand in the place and stead of any of the

instruments required hereunder. A certified copy of this Judgment of Divorce may be

recorded in the offices of any Register of Deeds, Secretary of State, or other public office

and have the same force and effect as if such instrument had been executed.

Chris Pt. Koughta1ing~ P51~ Phone (231) 7222222COOK & HOUGMTAL!NG, P.L.C Fax: (231) 722-~83L2

RELEASE OF ATTORN~

IT IS FURTHER ORDERED that the Attorneys of Record are released U~Oflentry

of the Judgment with the Court. Temporary orders, except as otherwise provided in this

Judgment, all interim orders and temporary injunctions entered in this action are

terminated.

Should either party take steps to enforce this Judgment of Divorce, the non-

prevailing party shall pay the costs and reasonable attorney fees incurred bythe prevailing

party in enforcing the Judgment of Divorce. This Judgment is based upon full and

complete and honest disclosure by the parties as to their individual and jointworth~ debts,

and incomes. If either party has failed to completely disclose their respective worth, the

injured party may petition the Court for relief and shall be awarded attorney fees, if there

is a finding of fraud or non-disclosure.

WHENJUDGMENTBECOMESFINAL

IT IS FURTHERORDERE that this Judgment shall become final on the date

hereof. ~nc.Ru~~

Circuit Court Judge /~ountersigned: ,.. .. ~ ~

Deput erk

APPROVED:

&c41~TMu~kegonCountyFriend of the Court

Chris A. Houghtaling, PS1~~ Phone: (231) 722-2222Fax: (231) 722—8312

4

STATE OF MICHIGANIN THE CIRCUiT COURTFORTHE COUNTY OF MUSKEGON

TheHonorableJohnC. RuckCircuit CourtJudge

LAVONNE KAY HARRIS, ,

Plaintiff, :~...

V CaseNo. 03-02O805-DM~

SCOTT BENNETT HARRIS,

Defendant.

I,

AnnetteSmedleyP63987 ScottBennettHarrisAttorneysforPlaintiff DefendantIn ProPer3006GladeStreet,P 0 Box 899 .517A GrinnelStreetMuskegon,MI 49443-0899 K~~W~est,FL 33040(231) 830-0036 (3O5)~3-9l72 -

/

OUALtFIED DOMESTIC RELATIONS ORDER

At sessior~ofsaidCourtheldonthe C dayofa (~.Ik -, 2004,in theCity ofMuskegon,County

ofMuskegon,StateofMicb.igan.

PRESENT: TheHonorableJohn C. RuckCircuit Court Judge-Family CourtDivision

This cause having been resolved by a Consent Judgment of Divorce dated

October 10, 2003, such Consent Judgment of Divorce containing a paragraph titled

Pension which indicated that theparties shall prepareandenter a Qualified Domestic

RelationsOrder (QDRO).

Onmotion ofAnnetteSmedley, attorney for Plaintiff, said QDROis hereby

entered to state in its entirety as follows:,

1

IT IS ORDEREDAND AD.TUDGED that this QDROconstitutesa component

partofthepropertysettlementprovisionsof theConsentJudgmentofDivorce in this

matter. It is enteredfor thepurposeof awardingto thePlaintiff wife an interestin the

Defendanthusbandsaccmedbenefitin theK.L. Industries,L.L.C., pursuantto §

401(a)(13)and414(p)oftheInternalRevenueCodeof 1986,as amended(theCode),

and§ 206(d)(3)of theEmployeeRetirementIncomeSecurityAct of1974, asamended

(ERISA).

1. ~ Thequalifiedplansubjectto this Orderis the:

401KPlanofK.L. Industries.1790SunDolphinDrive Muskegon,

MI 49444.

2. PlanAdministrator. Theplanadministratoris:

K.L. Industries1790SunDolphinDr.Muskegon,MI 49444Attn: Kelley Ochazak

3. Particinai~t.TheParticipantin theplanis theDefendant.

ScottBennettHarris517A GrinnelStreetKeyWest,FL 33040SS#:378-74-4688DOB: 9-8-1964

4. AlternatePayee.TheAlternatePayeeis thePlaintiff.

LavotmeKayHarris5832 S.OceanaDriveRothbuxy,MI 49452SS#:380-06-13830GB: 7-6-1973

5. Marria.g~.TheParticipantandtheAlternatePayeeweremarriedon:March 12, 1999. :.. .

2

6. Benefitsto AlternatePayee,

(a) Amount.

TheAlternatePayeeis assignedonehundredpercent(100%)oftheParticipantspensionfrom startofParticipantsemploymentatK.L.IndustriesthroughOctober10, 2003,thedateof theJudgmentofDivorcein this case.

(b) ~yment to AlternatePayee.ThePlanAdministratorshall distributetotheAlternatePayeetheabove-describedbenefitsin theform ofonelumpsumpaymentassoonasadministrativelypracticableafterthePlanAdministratordeterminestheorderto be aQORO.

Tax TreatmentofBenefitsto AlternatePayee.TheAlternatePayeeshall

includein hergrossincome,for thetax yearofreceipt,all retirementbenefitsthat shereceivespursuantto theParticipantsassignmentofbenefits;and,accordingly,theParticipantshallnot includethesebenefitsin his grossincome. TheAlternatePayeeshallbetreatedasthesoledistributeeunderSections72 and402oftheCode,orany similarsuccessorprovision,ofany paymentordistributionthat is madeto herundertheParticipantsassignmentofbenefits. Further,theParticipantsinvestmentin thePlan,if any,shallbe sharedproportionatelyby him andtheAlternatePayeeasprovidedin § 72(m)(10) oftheCode,or anysimilarsuccessorprovision.

2. ~ypeorFormofBenefit or Option. ThisQDROdoesnot requirethePlanto provideanytypeorform ofbenefit,oranyoption,not otherwiseprovidedunderthePlan. This QDROdoesnotrequirethePlanto providebenefitsin excessofthebenefitsto which theParticipantwouldhavebeenentitled in theabsenceofthis QDRO. ThisQDROdoesnot requirethePlanto providebenefitsto theAlternatePayeewhich arerequiredto bepaidto anotheralternatepayeeunderanotherorderpreviouslydeterminedto be aQDRO.

3. Successorfi~i.This QDRO shallremainqualifiedwith respectto anysuccessorplanto thePlanidentifiedin this QDRO.

4. Conflict. In caseofconflict betweenthetermsoftheQDROandthetermsofthePlan,th~termsofthePlanshallprevail. For example,if thePlanis terminatedandall benefitsaredistributed,theamountsdueundertheQDROfrom thePlanshallbeimmediatelydistributable.

5. ChangeofAddr~.TheAlternatePayeeshallkeepthePlan. . Administratorinformedof her currentaddressandtelephonenumber.

3

Noticeofchangeofaddressortelephonenumbershallbe madein writingto thePlanAdministrator,addressedasfollows: K,L. Industries1790 SunDolphinDrive Muskegon,MI 49444.

6. Hold Harmless.TheAlternatePayeeshallhold thePlanandits sponsorsandfiduciariesharmlessfrom any liabilities which arisefrom followingthis QDRO,includingattorneysfeeswhichmaybe incurredinconnectionwhereany claimswhich areassertedbecausethePlanhonorsthis QDRO.

7. AttorneyFees.ThePlanandits sponsorsandfiduciariesshallnotberesponsiblefor anyattorneysfeesincurredby theParticipantor theAlternatePayeein connectionwith obtainingor enforcingthis QIDRO.

8. . Notices. All noticesto be givenordocumentstobe sentto thePlanAdministratorshallbe addressedassetforth in Paragraph11 hereinandshallnotbedeemedgivento thePlanunlesssentcertifiedmail, returnreceiptrequested.

9. ModificationofODRO. ThePlanAdministratorandtheAlternatePayeemaymodify (bywrittenagreement)anyprovisionofthis QDROwithoutfurthercourtapprovalso long asthechangehasno adverseeffect on theParticipant.ThePlanAdministratormayunilaterallymodify anytermofthis QDROto theextentnecessaryto complywith applicablelaw.

10. Beneficiary. TheAlternatePayeeshallbea beneficiaryofthePlan forpurposesof ERISA.

11. QualifiedDomesticRelationsOrder. TheParticipant,theAlternatePayee,andtheCourt intendthis orderto beaQDROundertheRetirementActof1984,PublicLaw Number98-397.

12. MutualIntent. ThePartiesagreethattheirmutual intentis to providetheAlternatePayeewith aretirementpaymentthat fairly representswhattheyhaveagreedto be hermaritalshareoftheParticipantsaccruedretirementbenefitasdefinedabove. This QDROshall continueto applyuntil suchtime asall benefitsawardedto AlternatePayeeunderthis QDROaredistributed.This Courtretainsjurisdictionto clarify this QDROin theeventthat thePlanAdministratorraisesquestionsregardingtheinterpretationofthisQDROor refusesto acknowledgethevalidity ofthisQDROasagainstthePlan. Participantshallexecuteanydocumentsandundertakean~jactionswhicharenecessaryto fulfill the termsofthisQDRO. Further,Participantshallnot takeanyactionwhichwould in anyway impair therights ofAlternatePayeeto receivethebenefitsdescribedabove.

4

13. DomesticRelationsOrder. This Orderis issuedpursuantto thelawsoftheStateofMichiganwhichrelateto theprovisionofchild support,alimonypaymentsandmaritalpropertyrights,asdefinedthereinbetweenspousesandformerspousesin actionsof divorce.

IT IS SO ORDERFi~

�~Circuit Court- Family CourtMivision ~ -

Countersigned: ~ ~

~puty Clerk..~fI c~

Approvedfor Entry:

AnnetteSmedl 87 —- —---.... ScottB. HarrisAttorneyfor Plaintiff DefendantIn ProPer

5

K/)I&/?L. ~6EbTELEP#O~EA~~~

••-~OFMlC~G---r14th JUDICIAL CIRCUIT L MOI1ON TO REVIEW CHILD SUPPORT

L MUSKEGON COUNTY ~19~~!~-b~ ~~ ~724~21

Plaintiffs info matiofl Defe~idantsinfomiatioflname: ~ name: ~ B -

address: . adtheSs: /5V3 ~Id6I~ ~

city, state, zip: ~ state, zip: ~ ~ ~ 3 ~telephone #: - . telephone #: ~ c~ ~ —~ — q~55W 3~O-O~~t~,~13 55W 1 ~ -z(-~~

copy to. Denis V. Potuznjk, Attorney

CALENDAREI~cOME~NFORMA11ONPtatntrffs information: __________ Defendants inforflat;0fl

employei:I i~ti~T~/.f(O ~ C~ employer: ,1~TA44J7/C 12r~fL5address; address; .fl~Y? ~ ~city, state, zip: ~ ~ V9 6~ city, state, zip: /<E~ ~ v ~c

telephone #: 231 7~3~ 3 telephOne #: ~ ?71 4 ~

I am requesting that the COurt revtew my currentchid support order, Including cl~dca~.medJ~ca!Ij: ~._

obligation and if applicable arrearage payment using the Michigan Child Suppo orr1tL~Ja. I ~

understand that by requesting a review, my child support, child care, medical ob~çatk~Orarr~Thge

payment may increase orde~re~Aending on the parties current income irrnlat9fl.r

- ~/~/c ~ - —

Date .--, w

DO NOT WRTE BELOW ThIS LINE~OT1CEOFHEAR~

A hearing Will be held on the above motion before the Family Court Referee Ofl

JULY 1.7, 2006 at 10:30 a.tn~_. You need to appear at the Friend of the Court

Office, located in the Michael E. Kob~aHall of JustIce, 990 Terrace Street, on the 3~Floor, in

Muskegon, Michigan.

If you require special a commodat~fl5becau~of a dleabiftty. or If you t~qulr8a foreign language Interpreter to fully

participate in court proceed$fl95. peese contaCt the Frle~dof thC Court IthmedIatelY to make arrangements.

[~ERTIncA1EOfMA$L~]I certify that on this date I mailed a copy of this motion and notice of hearing to the parties by ordinary

mail to their last known addresses stated above.

June 20, 2006

APPENDIX ~

Original - Court 2nd copy - Defendant

Approved, SCAO 1St COPY - Plaintiff 3rd COPY- ~riendof the Court

STATE OF MICHIGAN UNIFORM CHILD ~UPPORTORDER CASE NO.14TH JUDICIAL CIRCUIT (PAGE 1)

MUSKEGON COUNTY ~ MODIFICATION 20030208050M990 Terrace, l(obza dalI of Justice, Third Floor Muskegon, Ml 49442 FAX no. (231) 724~1io8Plaintiffs name, address, and telephone no. 15ifendantS~,address, and telephone no.LAVONNE HARRIS ~SCOTT1-IARRISCONFIDENTIAL ADDRESS V 1503RIVERA ST

KEY WEST, FL 33040

Plaintiffs a~orneyname, address, telephone no., and bar no. ~nd~t5 attorney name, address, t~Ph0n,~0.,and bar no.~ .-

Third party name address and telephone no 3

~.1 N)

~ The friend of the court recommends support be ordered as follows If you disag~eewith this recommendation YOU must file awritten objection with Circuit Court Records on or before 21 days from the date th~s.drder is mailed.If you do not object, this proposed order will be presented to the court for entry.

UNLESS OTHERWISE ORDERED in Item 15: 0 standard provisions have been modified (see item 15.)

1. This order continues until each child is age 18 or graduates from high school, as provided by MCL 552.605b, whichever is later,but no longer than age 19 1/2. Child care for each child continues through August 31 folloWing each childS 12th birthday.

2. Income withholding takes immediate effect. Payments shall be made through the State Disbursement Unit.

3. Child Support. The payer has a monthly child support obligation as follows:

Payer: Payee: ]i~~porteff. date: 6/20/06SCOTT HARRIS LAVONT4E HARRIS I Child care eff date:

Childrens names and birth dates:

ZACHARY HARRIS 9/15/96; TIA HARRIS 5/4/00Children supported: I child 2 children 3 children 4 children 5 or more childrenBase support: $ 430 ~ s $Ordinary medical: 12 25 $ $ $Child care: $ $ $Other: $Total: 442 : 612 $ s $

~ Base support shall abate 50% after 6 consecutive overnights with the payer.~ Base support includes a net health care premium adjustment of $ ~ 0 subject ~ not subject to abatement.~ Support was set based on the shared economic responsibility formula using ______overnights of parenting time for the payer.The above ordered support provisions ~ do 0 do not follow the child support formula.

(see Page 2 for remainder of order)

~ ~-.ti,, rt ~ ~e~iriPflFR PAGE1 MC .a.l4MCL552.517.MCL552.517b(3).M~~2~l

Original - Court 2nd copy - DefendantApproved, 1 st copy. Plaintiff 3rd copy - Friend of the Court

STATE OF MICHIGAN CASE NO.14TH JUDICIAL CIRCUIT UNIFORM CHILD SUPPORT ORDER

MUSKEGON COUNTY (PAGE 2) 20030OSO5DM _______990 Terrace Kob~aHall of Jusice, Third Floor, Muskegon, MI 49442 FAX no. (231) 724-1108 ~~T~24-64~T

Plaintiffs name Defendants name

LAVONNE HARRIS v SCOTTHARRIS

4. Insurance, For the benefit of the children, ~ plaintiff ~ defendant shall maintain health care coveragethrough an insurer (as defined In MCL 552.602(0)] that includes payment for hospital, dental, optical, and other medical expenseswhen that coverage is available at a reasonable cost, including coverage available as a benefit of employment or under anindividual policyO up to a maximum of $ for plaintiff. 0 up to a maximum of $ ~_for defendant.~ not to exceed 5% of the plaintiff s/defendants gross income.

5. Uninsured Medical Expenses. All uninsured health care expenses exceeding the ordinary medical amount will be paid48°I~by the plaintiff 52% by the defendant. Uninsured expenses exceeding the ordinary medical amount for the

year they are incurred that are not paid within 28 days of a written payment request may be enforced by the friend of the Court.The ordinary medical amount is $ 573 per year. The payee must provide to the Family Court proof ofordinary health care expenses exceeding the annual ordinary health care amount within a calendar year before filling ademand for medical payment.

6. Qualified Medical Support Order. This order is a qualified medical support order under 29 USC 1169. To qualify this order,the friend of the court shall issue a notice to enroll under MCL 552.626b. A parent may contest the notice by requesting a reviewor hearing concerning availability of health care at a reasonable cost.

7. RetroactIve Modification, Surcharge for Past Due Support, and Liens for Unpaid Support. Support is a judgment thedate it is due and is not modifiable retroactively. A surcharge will be added to past due support. Unpaid support is a lien byoperation of law and the payers property can be encumbered or seized if an arrearage accrues for more than the periodicsupport payments payable for two months under the payers support order. .

8. Change of Address, Employment Status, Health Insurance. Both parties shall notify the friend of the court in writin~,within21 days of any change in: a) their mailing or residence address and telephone number-, b) the name, address, and telepnonenumber of their sources of income,- c) their health maintenance or insurance company, insurance coverage, persons insured,or contract number; cI) their occupational or driver licenses; and e) their social security number unless exempt by law under

9. Redirection and Abatement: Subject to statutory procedures, the friend of the court: 1) may redirect support paid for a childto the person who is legally responsible for that child; 2) shall abate support charges for a child who, resides on a full-bme basiswith the payer of support; or 3) shall redirect support to the Department of Human Services for a child placed in foster care.

10. Fees. The payer of support shall pay statutory and service fees as required by law.11. Review. Each party to a support order may submit a written request to have the friend of the court review the order. The

friend of the court is not required to investigate more than 1 request received from a party each 36 months. A party may alsofile a motion to modify this support order.

12. PrIor Orders. Except as changed in this order, prior provisions remain in effect. Support payable under any prior order Is

13. Incarceration. In the event the payer becomes incarcerated and unable to work, the payers child support shall besuspended effective the date of incarceration and immediately reinstated at the previously court ordered amount uponthe payers release, unless the incarceration is due to failure to pay child support. The Friend of the Court shall providethe payee with notice and an opportunity to object to the suspension of the payers child support. This provision shallhave the same force and effect of a Petition for Modification and satisfies the requirements for MCL 552.603.

14. Arrears: The Payer shall pay $______ per Month toward the arrearage balance(s).Waive arrears owed to the 0 Defendant EJPlaintiff 0 Preserve all arrears

15. Other: (attach separate sheets as needed)

FOC 10/ 52 (9/05) UNI!ORM CHILD S ORT ORDER, PAGE 2 MCL .14, MCL 552.517, MCL 552.517b(3), MCR 3-211

Original - Court 2nd copy - Defendant

i-~pprcved, 1 st copy - Plaintiff 3rd copy - Friend of the Court

STATE OF MICHIGAN I CASE NO.14TH JUDICIAL CIRCUIT UNIFORM CHILD SUPPORT ORDER I

MUSKEGON COUNTY (PAGE 3) ] 2003020805DM990 Terrace, l<obzaHall ofJusU~e,Third Floor, Muskegon, MI 49442 FAX no. (231) 724-1108 (231) 724-64~T

FINDINGS:HEARtNQHELD ON 7-17-06

1. Defendantfatherpetitionedfor modificationofsupport.Thepartieshavetwo childrenwho live with themother.

2. The father earns $400 per week gross.3. The mother works 32 hours perweekat $11.10perhour,Shepays$160.50biweeklyfor healthinsurancefor

herself and the two children.This is presumed to be unreasonable since it exceeds 5% ofher gross income,The referee recommends allowing the mother to pay the insurance and having the expense apportionedbetween the parties since the father does not provide insurance. The mother also states she pays $200 perweek for child care. It this is true, it would leave her with a net income of$18 per week. This does not makesense. The referee declines to apportion the child care expense.

4. Entry of the above order is recommended.

GWG

Plaintiffs name Defendants name

IT IS SO ORDERED:

Pialntiff (if consenUstipulatiort) Date 9èfenda~ifC~~tipUIa~n) Date

9-4~ C ~ (Date .~~JudgeJOHN C. RU~K Bar no.

PreP~~db~LL [~~TIHCATEOF MAILING

I certify that on this date Iserveda copy of this order on the les ay~dtheir attorneys b first class mail addressed to t~nirlastknown addresses as defined in MCR 3.203. 1)

Date ign~

FOC 10 / 52(9/05) UNIFORM CHILD S DORT ORDER, PAGE 3 MCL :.14, MCL 552.517, MCL 552.517b(3). MCR 3211

MUSKEGI ~A~ILY COURT SERVICESTHE CHILD ~jPPORT PROGNOSTICATOR2006

SCOTT HARRIS / LAVO~E~RIS Case No: 03-0208051)M

CHILD SUPPORTRECO~*~~ENDATION

This case has been calculated with mother having primary physical custOdy.GENERALCARE: For the costs of general care, the father should pay:

$467.03 per month for two children.$309.89 per mouth when one child is subject to the order.

General care should abate by 50% during times when the ~o~custodial parenthas parenting time for six or more consecutive overnight periods. Ordinaryhealth care costs and child care costs should not abate.

ORDINARYHEALTH CARE COSTS; In addition to the general care, the father should pay:

$24.90 per month for two children.$12.45 per month for one child.

HEALTH INSURANCE PREMIUMADJUSTM~rMothers net insurance premium is higher than fatliers net insurance premiwrL.

Therefore, fathers S general. care obligation should be increased by $120.The cost of mother5 s health insurance premium exceeds 5% of her gross income and isconsidered to be unreasonable under the Michigan Child Support Formula.

TOTAL MONTHLY SUPPORTAMOt3Wi~The total monthly support amount is $611.93.

EXTRAORDINARYHEALTH CARE EXPENSES:Father should pay 51.69 percent and mother should pay 48.31 percent of theextraordinary health care expenses.

DETAILED INFORMATION ARoT~rINCOME, EXPENSESMID ~JUSTMENTS IS ON TEE NEXT PAGE.

This recommendation was prepared using the October 2004 Support Formula & 2006 tax rates.PROGNOSTICATOR20.0 - A product of Springfield Publications,

in association with the Family Law Section of the State Bar of Michigan.

This recommendation was printed on July 25, 2006.

NtJSKEG ?ANILY COURT SERVICESTHE CHILD _.,PPORT PROGNOSTICATOR2006

SCOTT HARRIS / LAVONNEHARRIS Case No: 03-020805-DM

TAX, INCOME, EXPENSEAND ADJUSTMENTINFORMATION

FATHER MOTHERTax Filing Status: SINGLE HP HZBD

Income Tax Exemptions Considered: 1 3Annual Tax Deduction Amount: 5150 7550

Supplemental Child Tax Credit: 0 0Additional Children: 0 0

Local Income Tax Percent: % 0.5%

*** AVERAGEWEEKLY INCOME **~

Salary & Wages: 400.00 340.00GROSSWEEKLY INCOME: $400.00 $340.00

GROSSMONTHLYINCOME; $1,740.00 $1,479.00

~ AVERAGEWEEKLY EXPENSES ~

Social Security Tax: 24.79 21.07Medicare Tax: 5.80 4.92

Federal Income Tax: 28.57 0,53Michigan Income Tax: 13.47 6.01

Local Income Tax: 0.00 1.53

TOTAL AVERAGEWEEKLYDEDUCTIONS: $12.63 $34.06TOTAL AVERAGEMONTHLYDEDUCTIONS $315.94 $148.16

TOTAL AVERAGEWEEKLYNET INCOME: $327.37 $305.94-- TOTAL AVERAGEMONrRLY NET INCOME: $1,424 . 06 $1,330.84

** *OT~R?.D3USTMENTS***

)intOunt of other support orders: 0.00 0.00Adjustment for other children: 0.00 0.00

Adju~tmeflt for stepchildren; 0.00 0.00WEEKLY OTHERADJUSTMENTS: $0.00 $0.00

MONTHLYOTHERADJUSTMENTS: $0.00 $0.00

AIXTUSTED WEEKLYNET INCOME: $327.37 $305.94ADJUSTEDMONTHLYNET INCOME: $1,424.06 $1,330.84

Cost of Total Insurance Premium; 0.00 349.00Adjustment for Payers Portion: 0.00 3.16.00

Net Allocable Portion: 0.00 233.00Number of Others Covered by Policy: 0 0

Number of Other Children Covered: 0 0Adjusted Net Allocable portion: 0.00 233.00

Max. Reasonable Monthly Health Ins. Cost: 87 74

This recommendation was prepared using the October 2004 Support Formula & 2006 tax rates.PROGNOSTICATOR20.0 - A. product of Springfield publications,

in association with the Family Las~ Section of the State Bar of Michigan.

This recossnendatiOn was printed on July 25, 2006.

STATE OF MICHIGAN

IN THE CIRCUIT COURTFORTHE COUNTY OF MUSKEGON

LAVON1~EHARRISCONFIDENTIAL ADDRESS

File no. 2003-020805-DM

SCOTTHARRIS1503 RIVERA STKEY WEST,FL 33040

—

.,, r ~

~..

PROOFOF SERVICE

I certify thaton this dateI maileda copyof theUniform Child SupportOrder

dated 9—(f.—c)L~ to thepartieslastknownaddress(es)above,by ordinarymail.

Date: ~1—~-~ ~ ~-~~t--Family CourtServices

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLEOFTHE STATE OF MICHIGAN, UNPUBLISHEDApril 20, 2010

Plaintiff-Appellee, APPROVEDFORPUBLICATION

June8, 2010

9:20 A.M.

V No. 290218OaklandCircuit Court

SELESAARROSIEURLIKINE, LC No. 2008-220669-FH

Defendant-Appellant.

Before: FITZGERALD, P.J.,andCAVANAGHandDAvIs, JJ.

PER CURIAM.

Defendantappealsas of right her jury Conviction of failing to pay child support inviolation ofMCL 750.165, for which shewassentencedto probationfor oneyear. Weaffirm.

Following a divorcein Juneof 2003,defendantwasorderedto pay Child supportto herex-husband,Elive Likine, who wasawardedphysicalcustodyoftheirthreeminorchildren. Thechild supportinitially was$54 a month,buteventuallywasraisedto $181 amonth. Apparentlyin March orMay of 2005,Elive soughtan increasein child supportpaymentsfrom defendant.Elive was promptedto seekthe increasein child support after he learnedthat defendanthadpurchasedahouseworthabout$500,000by securingtwo mortgagesin her name;onefor $2,000amonth,andone for $1,000amonth. Shehadalsopurchasedanewvehicle.

After hearingswereheldon thematter,theFriendoftheCourtrecommendedthat incomeof $5,000a monthbe imputedto defendantconsistentwith her standardof living, and that herchild supportobligation be increasedto $1,131 a month, retroactivelyeffective as of June1,2005. The circuit courtadoptedthatrecommendationafterholding its ownhearing. Defendantsrequestfor reconsiderationwasdenied. Thus,by orderenteredAugust23, 2006,defendantwasobligatedto pay $1,131 a monthin child supportasofJune1, 2005. Defendantthenappliedfordelayedleaveto appealin thisCourt, andleavewasdeniedfor failure to persuadetheCourt oftheneed for immediateappellatereview. Likine v Likine, unpublishedorderof the Court ofAppeals,enteredMarch 14, 2008 (DocketNo. 280148).

Defendantspaymenthistory wasvery sporadic. In 2006,shepaidnothing. In 2007, she

paida total of$488.85for theyear—$381.21in February,$20 in June,and$87.64in December.

-1- APPENDIX C,

ThroughMarchof 2008,defendantpaidatotalof $100. The amountofarrearage,asofFebruary29, 2008, was $40,182.71. In March of 2008, felony chargeswere filed againstdefendantforfailure to pay child supportas orderedbetweenFebruaryof2005 andMarchof2008 in violationof MCL 750.165. Shestoodmuteat her arraignmenton May 19, 2008, anda pleaofnot guiltywasenteredon her behalf.

On September29, 2008, the prosecutionfiled a motion in limine seekingto preventdefendantfrom offering anyevidencepertainingto her allegedinability to pay the orderedchildsupport. Theprosecutionarguedthat, asthis Court held in PeoplevAdams,262 Mich App 89;683 NW2d 729 (2004), the failure to pay child supportin violationof MCL 750.165is a strictliability offense; thus,evidenceof an allegedinability to pay is immaterialandirrelevant. Thetrial courtagreedandgrantedthemotionin limine, holdingthat inability to pay is notadefense.Somethingshouldhavebeenraisedearlierfor a modification,but it wasnt. A jury trial beganon November14, 2008,anddefendantwasconvictedascharged.

On November25, 2008, defendantfiled a motion for relief from an unconstitutionalstatute and for reconsiderationof the order granting the prosecutionsmotion in limineprecludingher from assertingasa defensethe inability to pay. Defendantprimarily arguedthatMCL 750.165 is unconstitutionalbecause,as a strict liability offense, it does not requiredefendantto haveamorally culpablementalstateregardingnon-paymentofchild support. Themotion wasdenied. On December22, 2008,defendantwassentencedto probationfor oneyear.On February2, 2009, defendantfiled this appeal. On March 16, 2009,defendantfiled with thetrial courtamotion for newtrial, primarily arguingthather rights underMichigansdueprocessclause,asinterpretedby City ofPortHuron v Jenkinson,77 Mich 414; 43 NW 923 (1889),wereviolatedbecauseshewasnot allowedto presentasa defenseher inability to pay child support.Relying on Adams, 262 Mich App at 99-100,which madeit clear that inability to pay is not adefenseto this strict liability offense,the trial courtdeniedthemotion.

On appeal,defendantfirst arguesthat she is entitled to a new trial becauseher rightsunder Michigansdueprocessclauseweredeniedby the trial courtsorderprohibiting her frompresenting as a defenseherinability to pay theorderedchild support. Wedisagree.

This Court reviews de novo constitutionalquestionsof law. People v Keller, 479 Mich467, 473-474;739NW2d 505 (2007). A trial courts decisionsto grantamotion in limine andtodeny a motion for new trial arereviewedfor an abuseof discretion. People v Blackston, 481Mich 451,460; 751 NW2d 408 (2008); People v Katt, 468 Mich 272, 278; 662 NW2d 12 (2003).An abuse of discretion occurs when the trial courtsdecision falls outside the principled rangeof outcomes. Blackston,481 Mich at 460.

Defendantarguesthat, in accordance with ourSupremeCourtsdecisionin Jenkinson,77Mich at 419-420,the MichiganConstitutionforbids the interpretationof MCL 750.165 asastatutewhich preventsthe presentationof an inability to pay defense,thus criminalizing aninvoluntaryomission. In Jenkinson,the impoverisheddefendantwasprosecutedfor failing tocomply with a local ordinancethat imposeda duty upon propertyowners and occupantstoconstruct,keepand maintain good and sufficient sidewalksalong all streetsand avenuesinfront of or adjacentto suchrealestate;andupon failure to do so, such person, after due notice,shall be liableto prosecution.. . . Jenkinson,77 Mich at 417. TheJenkinsonCourt foundthatthe ordinance was not only void, but unconstitutionalon the groundthat: No legislativeor

-2-

municipal body has the power to impose the duty of performing an act upon any person which itis impossible for him to perform, and then make his non-performance of such duty a crime, forwhich he may be punishedby both fine andimprisonment.Id. at 419. Defendants reliance onJenkinsonis misplaced.

Defendant claims that MCL750.165 is unconstitutionalbecause,just asin Jenkinson,theState imposed upon her the duty of paying child support in the amount of $1,131 a month whenit was impossible for her to perform that duty in light of her poverty and, further, she waspreventedfrom presentingsuch a defenseto this strict liability offense. But, unlike thedefendantin Jenkinson,defendantwasprosecutedfor failing to comply with acourtorderthatwas enteredaftera judicial determinationwas madethat defendanthadthefinancial meanstocomply with thecourtorder, i.e.,theduty imposedupondefendantwasadjudgedpossiblefor herto perform.

Defendantwas a partyto severalcivil proceedingsinvolving themodificationofher childsupportobligation which affordedher ample opportunityto presentevidenceof her ability orinability to pay an increasedamount of child support. At those proceedingsevidencewasadducedthat, while defendantwaspaying $181 a monthin supportof her threeminor children,she purchaseda houseworth about $500,000by securingtwo mortgagesin her namethatobligatedher to pay $3,000a month. She also purchaseda brandnew vehicle. Thereafter,defendantwasadjudged,in accordancewith theevidenceof herstandardofliving, to be capableof paying child support in the amount of $1,131 a month for her three minor children. Thus,unlike thedefendantin Jenkinson,theStatedid not imposeuponher a duty that was impossiblefor her to perform. And defendantsineffective assistanceof counselclaim premisedon herattorneysfailure to bringJenkinsonto thetrial courtsattentionandto raisea claim undertheMichiganConstitution is without merit. See People v Mack, 265 Mich App 122, 130; 695NW2d342 (2005).

Defendantsargumentis actually an impermissiblecollateral attackon the underlyingsupportorder. Pursuantto MCL 600.1021,the family division of circuit courthas sole andexclusivejurisdiction over casesof divorceand ancillary matters, including thosematterssetforth in thesupportandparentingtimeenforcementact,MCL 552.601to 5 52.650. Under MCL552.16(1),thecourtwhichentersajudgmentofdivorcemayentertheordersit considersjust andproper concerning the care, custody, and, as set forth in the support and parenting timeenforcementact, MCL 552.605, thesupportof minor children. UnderMCL 5 52.605, the courtthat orders the paymentof child support must generally order child support in an amountdeterminedby applicationof thechild supportformula, unlessthecourtspecificallyfinds that itsapplicationwould be unjustor inappropriate. [A] supportorder that is partofajudgmentor isan orderin a domesticrelationsmatteris a judgmenton andafter thedatethesupportamountisdue . . . with the full force, effect, and attributesof a judgmentof this state . . . . MCL552.603(2). Pursuantto MCL 552.1224,the tribunal of this statethat issuesa supportorderconsistentwith this stateslaw hascontinuing,exclusivejurisdiction over a child supportorderif thepartiesand children at issueremainresidentsof this state. Accordingly, with regardtodomesticrelationsactions,MCR 3.205(C)provides:

(1) Each provision of a prior order remains in effect until the provision issuperseded,changed,or terminatedby asubsequentorder.

-3-

I

(2) A subsequent court must give due consideration to prior continuing orders ofother courts, and may not enter orders contrary to or inconsistent with suchorders, except as provided by law.

Here, defendant was prosecuted for the criminal offense of violating MCL750.165 whichstates, in pertinent part:

(1) If the court orders an individual to pay support for the individualsformer 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 imprisonmentfor not morethan4 years or by afine of not more than $2,000.00, or both.

(2) This section does not apply unless the individual ordered to paysupport appeared in, or received notice by personal service of, the action in whichthe support order was issued.

Defendant argues that she should have been permitted to present the defense of inability to payduring her criminal trial. However, such a defense merely attempts to challengetheamountofthe support ordered in the civil proceeding by a court which has sole, exclusive, and continuingjurisdiction over the support order—an order which is a judgment that has the full force, effect,and attributes of a judgment of this state. MCL 552.603(2). [A] collateral attack occurswherever a challenge is made to a judgment in any manner other than through a direct appeal.People v Howard, 212 Mich App 366, 369; 538 NW2d44 (1995). Thus, defendants attempt tochallengethe child supportorderin her criminal trial by claimingan inability to paythe amountorderedwasproperlydeniedanddid not constitutean abuseof discretion. As simply statedinAdams, 262 Mich App at 96, [t]he Michigannonsupportstatutesgenerallyreflect the rule thattheoffensepresupposestheability to pay.

Defendantalso argues that her rights to due processunder the federal and stateconstitutionsare offendedby thestatutescharacterizationasa strict liability offensefor whichinability to pay is not a defense. SeeAdams,262 Mich App at 99-100. She claims that herfailure to pay thechild supportasorderedwas not a voluntaryactbecauseit was completelyimpossible for her to pay, i.e., the actus reus componentof the crime was lacking. Thisargument,too, fails. As our SupremeCourt held in PeoplevMonaco,474 Mich 48, 56-58; 710NW2d 46 (2006),felony failure to paychild supportis not acontinuingcrime, it is completeatthe time that theindividual fails to paytheorderedamountattheorderedtime. Thatis, theactusreus is the failure to pay the support as ordered. As discussedabove,defendantwas affordednumerousopportunitiesin the civil proceedingsto establishher inability to pay the orderedamountofchild support. Thosecivil proceedingsweretheproperforum, andthatwasthepropertime, to adjudicatesucha claim. Accordingly, defendantwas not denieddue processon thegroundthat, becausethe offenseimposesstrict liability, shewaspreventedfrom proving thatherfailure to pay child supportin compliancewith thecourtorderwasinvoluntary.

Further, the order that increaseddefendantschild support obligation was enteredonAugust 23, 2006, and was given retroactiveeffect to June 1, 2005. Defendantsmotion forreconsiderationwas denied. Nevertheless,in 2006, defendantpaidno child support. In 2007,she paid a total of $488.85 in child support. In 2008, throughMarch, she paid $100. The

-4-

S.

charges of felony nonsupport were not filed until March of 2008. During the extended period oftime between the entry of the child support orderat issueandthe filing of thecriminalcharge,itdoes not appear from the record evidence that defendant sought again to have the support ordermodified. And it does not appear, for example, that she filed a motion in the circuit court, underMCL 552.605e, for a payment plan to pay arrearages and to discharge or abate arrearages,particularly after her receipt of social security disability benefits. Defendants challenge to theability to pay the ordered child support, as well as any of her bona fide efforts to pay suchsupport, must be consideredand adjudicated by the court that issued the support order.However, defendant did not seek those, or any other, remedies before she was prosecuted underMCL750.165.

Defendant also seems to arguethat she was deniedher due processright to presentadefense because she was prohibited from arguing that it was impossible for her to comply withher child supportorder. We disagree. Whethera defendantsright to presenta defensewasviolated by the exclusion of evidence is a constitutional question subject to review de novo.People v Kurr, 253 Mich App 317, 327; 654 NW2d651(2002).

The right to presenta defenseis afundamentalelementof dueprocess,but it is not anabsoluteright. Peoplev Hayes,421 Mich 271, 279; 364 NW2d635 (1984). The right extendsonly to relevantandadmissibleevidence.Peoplev Hackett,421 Mich 338, 354; 365 NW2d120(1984). Evidenceis relevantif it hasany tendencyto makethe existenceof any fact that is ofconsequenceto the determinationof the action more probablethan it would be without theevidence. MRE401. Theelementsofthecrime offelony nonsupportare(1) thedefendantwasrequired by a decree of separate maintenance or divorce order to supporta child or currentorformer spouse, (2) thedefendantappearedin or receivednoticeby personalserviceoftheactionin which the order was issued, and (3) the defendant failed to pay the required support at the timeordered or in the amount ordered. Peoplev Monaco,262 Mich App 596, 606; 686 NW2d790(2004), affd in part and revd in parton othergrounds474 Mich 48 (2006). Clearly, evidence ofthe inability to pay was not relevant to any fact in issue. Therefore,thetrial courtdid notabuseits discretion by declining to admit the evidence, and defendants constitutional right to present adefense was not implicated. See Katt,468 Mich at 278; Kurr, 253 Mich App at 327.

Finally, defendant argues that a new trial is required because the prosecutorimproperlyattacked defense counsel during closing rebuttal argument. Because defendantdid not object tothe prosecutors remarks at trial, this issue is unpreserved and our review is for plain erroraffecting her substantial rights. See People v Brown, 279 Mich App 116, 134; 755 NW2d664(2008). [T]he test for prosecutorialmisconductis whethera defendantwasdenieda fair andimpartial trial. Peoplev Dobek,274 Mich App 58, 63; 732 NW2d546 (2007). Error requiringreversal will not be found if a curative instruction couldhavealleviatedany prejudicialeffect,given that jurors are presumed to follow their instructions. People v Unger, 278 Mich App 210,235; 749 NW2d272 (2008).

Prosecutorial misconduct issues are decided on a case-by-case basis, andthereviewingcourt must examine the recordandevaluatea prosecutorsremarksin context. People v Thomas,260 Mich App 450, 454; 678 NW2d631 (2004). The propriety of a prosecutors remarksdepends on all the facts of the case. People v Rodriguez, 251 Mich App 10, 30; 650 NW2d96(2002). A prosecutormay not personallyattackdefensecounsel. Peoplev McLaughlin, 258Mich App 635, 646; 672 NW2d 860 (2003). The prosecutormay not suggestthat defense

-5-

.4

counsel is intentionally attempting to mislead the jury, but reversalis not required if theprosecutors remarks are responsive to defense counsels arguments. Peoplev Watson,245Mich App 572, 592-593; 629 NW2d411(2001).

Here, in his closing argument,defensecounselemphasizedfacts thathadno bearingonthe elements of the crime. In response, the prosecutor argued that defense counsels strategy wasto distract the jury from the evidence. The prosecutors remarks were an appropriate response todefensecounselsargumentand not a personalattackon defensecounsel. Thus,therewasnoplain error. Moreover,a timely objectioncouldhavecuredanyperceivedprejudice. Therefore,reversal is not required.

Affirmed.

Is! E. ThomasFitzgerald

Is! Mark J. CavanaghIs! Alton T. Davis

-6-

Court ofAppeals,Stateof Michigan ~.. ~..Y

~ ~ I~

Alton T ~DavisPeopleofMI v ScottBennettHarris PresidingJudge

DocketNo. 297182 William C. Whitbeck

LC No. 08-056761-FH PatrickM. Meter

Judges

TheCourtordersthat thedelayedapplicationfor leaveto appeal is DENIED for lack ofmerit in thegroundspresented.

PresidingJudge

ATHES~~ A truecopyenteredandcertifiedby SandraSchultz Mengel, Chief Clerk, on

APPENDIX ~

JUN 4~OlO Ch~l!~~

STATE OF MICHIGANIN THE SUPREME COURT

THE PEOPLE OF THESTATE OF MICHIGAN, Supreme Court No. 141513

Plaintiff-Appellee Court of Appeals No. 297182v Lower Court No. 08-056761-FH

Muskegon County Circuit CourtSCOTT BENNETT HARRIS

Defendant-Appellant. PROOF OF SERVICE

MUSKEGON COUNTY PROSECUTOR STATE APPELLATE DEFENDER OFFICEAttorney for Plaintiff-Appellee Attorney for Defendant-AppellantBy: James L. Corbett By: Roif E. Berg (P26758)Hall of Justice, Fifth Floor 101 N. Washington, 14th Floor990 Terrace Street Lansing, MI 48913Muskegon, Michigan 49442 (517) 334-6069(231) 724-6435

Donella J. Veihl, of the Prosecuting Attorneys Office, Muskegon County, Michigan, being

duly sworn, deposes and says that on August 11, 2010, she sent a true copy of PLAINTIFF-

APPELLEES RESPONSE TO DEFENDANT-APPELLANTS APPLICATION FOR LEAVE TO

APPEAL in the above-entitled action by U.S. mail to fendants attorne , Roif E Berg.

Signed: ~Donella J. Veihl, Legal Secretary

Subscribed and sworn to beforemeon August 11, 2010.

Jami . Hooker, Notary PublicMuskegon County, MichiganMy Commission Expires: 03/30/12Acting in Muskegon County, Michigan