STATE OF MICHIGAN

[N THE SUPREME COURT

THE PEOPLE OF THE

STATE OF MICHIGAN,
SC No. 141513
Plaintiff-Appellee,
COANo. 297182
vs.
Lower Court File No. 08-56761-FH
SCOTT BENNETT HARRIS, Muskegon County Circuit Court

Defendant-Appellant.
/
MUSKEGON COUNTY PROSECUTOR STATE APPELLATE DEFENDER OFFICE
Attorney for Plaintiff Attorney for Defendant
By: James L. Corbett (P59312)) By: Roif E. Berg (P2675 8)
Hall of Justice, Fifth Floor 101 North Washington, l4t1~Floor
990 Terrace Street Lansing, MI 48913
Muskegon, MI 49442 (517) 334-6069
(231) 724-6435
/

PLAINTIFF-APPELLEES RESPONSE TO
DEFENDANT-APPELLANTS APPLICATION FOR LEAVE TO APPEAL

MUSKEGON COUNTY PROSECUTOR

Attorney for Plaintiff-Appellee \ \~ 13 ~
By: JAMES L. C0RBETr (P593 12)
Assistant Prosecuting Attorney ~
BUSINESS ADDRESS & TELEPHONE.
Hall of Justice, Fifth Floor
990 Terrace Street
Muskegon, MI 49442
(231) 724-6435
 TABLE OF CONTENTS
Page No.
TABLE OF CONTENTS i

INDEX OF AUTHORITIES iii

COUNTERSTATEMENT OF THE QUESTIONS PRESENTED vi

COUNTERSTATEMENT OF JURISDICTION viii

COUNTERSTATEMENT OF THE FACTS 1

LAW AND ARGUMENT 2

I. THE PROVISIONS OF THE INTERTWINED CIVIL

AND CRIMINAL STATUTES IN THIS CASE ARE
CONSISTENT WITH A CONCLUSION THAT THE
LEGISLATURE INTENDED TO CREATE A STRICT
LIABILITY OFFENSE 2

II. THE PROHIBITION OF AN INABILITY-TO-PAY

DEFENSE DOES NOT VIOLATE THE MICHIGAN
AND FEDERAL DUE PROCESS CLAUSES AS
INTERPRETED BY THE MICHIGAN SUPREME
COURT IN CITY OF PORT HURON VJENKINSON S

1. THE CIVIL PROCEEDING FOR DETERMINATION

OF SUPPORT LEVELS DOES NOT MAKE THE
STATUTE UNCONSTITUTIONAL 8

2. THE SO-CALLED ELIMINATION OF A VOLUN-

TARYACTUSREUSREOUIREMENT DOES NOT
RENDER THE STATUTE UNCONSTITUTIONAL 11

III. DEFENDANT WAS NEITHER DENIED THE BENEFIT

OF HIS COBBS AGREEMENT NOR INCARCERATED
BASED UPON AN UNCONSTITUTIONAL CONSIDER-
ATION OF HIS INIMGENCY AND, THEREFORE, THE
TRIAL COURT DID NOT ERRONEOUSLY DENY HIS
MOTION TO WITHDRAW HIS PLEA 14
 TABLE OF CONTENTS continued

IV. DEFENDANT WAIVED HIS CLAIM THAT THE

TRIAL COURT ERRONEOUSLY ADOPTED THE
CHILD-SUPPORT ARRIEARAGE IN FAMILY COURT
AS THE RESTITUTION AWARD DESPITE ITS
FAILURE TO FIND THAT THIS AMOUNT WAS
ALL THE RESULT OF CRIMINAL CONDUCT 23

CONCLUSION 28

11
4-

INDEX OF AUTHORITIES
Page No.
Case law:

Apprendi vNew Jersey, 530 US 466; 120S Ct 2348; 147 L Ed 2d 435 (2000) 9

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

People v Bulger, 462 Mich 495; 614 NW2d 103 (2000), overruled in part
on other grounds in Halbert v Michigan, US ; 125 S Ct 2582;
162LEd2d552(2005)

City ofKettering v Greene, 9 Ohio 2d 26; 222 NE2d 638 (1996) 12

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

Commonwealth v Payne, 602 NE2d 594 (Mass App Ct, 1992) 2 1,22

Dickey v State, 257 Ga App 190; 570 SE2d 634 (2002) 20

Dusenbery v United States, 534 US 161; 122S Ct 694; 151 lEd2d 597 (2002) 7

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

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

Morissette v United States, 342 US 246; 72 S Ct 240; 96 L Ed 288 (1952) 12

Patton v State, 458 NE2d 657 (md Ct App, 1984) 21

People vAdams, 262 Mich app 89; 683 NW2d 729 (2004) 3,5,13,14

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

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

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

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

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

People v Drohan, 475 Mich 140; 715 NW2d 778 (2006) 9

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

111
 INDEX OF AUTHORITIES continued
Page No.
Case law:

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

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

People v Haynes (AfterRemand), 221 Mich App 551; 562 NW2d 241 (1997) 15

People v Howard, 212 Mich App 366; 538 NW2d 44 (1995) 9

People vLaw, 459 Mich 419; 591 NW2d 20(1999) 26,27

People v Law, 223 Mich App 585, 589; 568 NW2d 90 (1997), revd in
part on other grounds 459 Mich 419; 591 NW2d 20 (1999) 25

People v Likine, Mich App ; NW2d

2010 WL 1568450 (2010) 5,6,7,
8,10,11,12,23

People v McNally, 470 Mich 1; 679 NW2d 301 (2004) 2

People v Monaco, 262 Mich App596, 606; 686 NW2d 790 (2004), affd in part
And revd in part on other grounds 474 Mich 48 (2006) 8

People v Montrose, 201 Mich App 378; 506 NW2d 565 (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 NW2d 866,888 (1993) 24

People vRiley, 465 Mich 442; 636 NW2d 514, 518 (2001) 2,23,19

People v Westman, 262 Mich App 184; 685 NW2d 423 (2004), revd in part on
other grounds sub nom People v Monaco, 474 Mich 48; 710 NW2d 46 (2006) 3,5,13,14

State v Jacobsen, 746 NW2d 405 (ND, 2008) 16

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

State v Nondahl, 680 NW2d 247 (ND, 2004) 20

Steele v Dep t 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 continued
Page No.
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:

Const 1963, art 1, § 24 25

vi
I.

COUNTERSTATEMENT OF THE QUESTIONS PRESENTED

ARE THE PROVISIONS OF THE INTERTWINED CIVIL AND

CRIMINAL STATUTES IN THIS CASE CONSISTENT WITH A
CONCLUSION THAT THE LEGISLATURE INTENDED TO CREATE
A STRICT LIABILITY OFFENSE?

Plaintiff-Appellee says, Yes

Defendant-Appellant says, No.
The trial court says, Yes.

II. DOES THE PROHIBITION OF AN INABILITY-TO-PAY DEFENSE

VIOLATE THE MICHIGAN AND FEDERAL DUE PROCESS
CLAUSES AS INTERPRETED BY THE MICHIGAN SUPREME
COURT IN CITY OFPORTHURON VJENKJNSOIV?

Plaintiff-Appellee says, No.

Defendant-Appellant says, Yes.
The trial court says, No.
Court ofAppeals says, No.

1. DOES THE CIVIL PROCEEDING FOR

DETERMINATION OF SUPPORT LEVELS MAKE THE
STATUTE UNCONSTITUTIONAL?

Plaintiff-Appellee says, No.

Defendant-Appellant says, Yes.
The trial court says, No.
Court of Appeals says, No.

2. DOES THE ELIMINATION OF A VOLUNTARY

ACTUS REUS REQUIREMENT RENDER THE
STATUTE UNCONSTITUTIONAL?

Plaintiff-Appellee says, No.

Defendant-Appellant says, Yes.
The trial court says, No.
Court ofAppeals says, No.

vii
 COUNTERSTATEMENT OF THE OUESTIONS PRESENTED continued

III. WAS DEFENDANT NEITHER DENIED THE BENEFIT OF HIS COBBS

AGREEMENT NOR INCARCERATED BASED UPON AN
UNCONSTJTUTIONAL CONSIDERATION OF HIS INDIGENCY AND,
THEREFORE, NOT ERRONEOUSLY DENIED HIS MOTION TO
WITHDRAW HIS PLEA?

Plaintiff-Appellee says, Yes

Defendant-Appellant says, No.
The trial court says, Yes.
Court of Appeals says, No.

IV. DID THE TRIAL COURT ERRONEOUSLY ADOPT THE CHILD

SUPPORT ARREARAGE IN FAMILY COURT AS THE
RESTITUTION AWARD DESPITE ITS FAILURE TO FIND THAT
THIS AMOUNT WAS ALL THE RESULT OF CRIMINAL CONDUCT?

Plaintiff-Appellee says, No.

Defendant-Appellant says, Yes.
The trial court says, No.
Court of Appeals says, No.

viii
 COUNTERSTATEMENT OF JURISDICTION

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

MCR 7.30 1(A)(2). The procedures for such appeal are outlined in MCR 7.3 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.

Defendant was convicted by guilty plea of felony non-support, MCL 750.165, and by the

trial court of being a habitual offender, fourth offense, MCL 769.12. 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.

On August 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 MCL 750.165 is a strict liability statute and that 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 any monies 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 presented as pertinent to the Law and Argument.

 LAW AND ARGUMENT

I. THE PROVISIONS OF THE INTERTWINED CIVIL AND

CRIMINAL STATUTES IN THIS CASE ARE CONSISTENT WITH
A CONCLUSION THAT THE LEGISLATURE INTENDED TO
CREATE A STRICT LIABILITY OFFENSE.

A. Standard ofreview

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 resentencing or withdrawal ofplea. Accordingly, Defendant raised unpreserved,

constitutional error.

Forfeited error remains subject to appellate review in limited circumstances. People v

Riley, 465 Mich 442, 449; 636 NW2d 514, 518 (2001), citing People v Cannes, 460 Mich 750,

774; 597 NW2d 130 (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) and the 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. People v McNally, 470 Mich 1, 6; 679 NW2d 301 (2004). Finally,

once a defendant satisfies these three requirements, an appellate court must exercise its discretion

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

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

the fairness, integrity or public reputation ofjudicial proceedings independent ofthe defendants

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

2
 B. Analysis of the issue

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

v Adams, 262 Mich App 89, 98-99; 683 NW2d 729 (2004); People v Westman, 262 Mich App

184, 191; 685 NW2d 423 (2004); revd in part on other grounds sub nom People v Monaco, 474

Mich 48; 710 NW2d 46 (2006). Hence there was no plain error.

First, MCL 750.165(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 opportunity to be

heard in the divorce proceedings, but apparently, he chose not to do so. MCL 750.165(1)

provides that [i]fthe 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. MCL 750.165(1) deals with guilt and

conviction. The minimum sentence of an individual convicted under MCL 750.165 is covered

by the Michigan Sentencing Guidelines. While the inability to pay cannot be argued at 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) and noted 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 ofhealth 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. Lemmen v Lemmen,

481 Mich 164, 166; 749 NW2d 255 (2008); MCL 552.17(1) ([a]fter entry ofjudgment

concerning ... divorce, ... and on the petition of either parent, the court may 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 MCL 552.28. Therefore, if a person

legitimately cannot pay support because of, inter alia, health reasons, he or she may petition 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 MCL 750.165. Thus, Defendant claims, the statute must be

unconstitutional. This, of course, is a non sequitur for two reasons. First, that is not what

happened in this case. Second, even if Defendants hypothetical is true, he could have reported

to the Family Court and had the payment schedule stayed during his incarceration. The one

thing he could not do is attempt to collaterally attack his Family Court order.

4
 II. THE PROHIBITION OF AN INABILITY-TO-PAY DEFENSE
DOES NOT VIOLATE THE MICHIGAN AND FEDERAL DUE
PROCESS CLAUSES AS INTERPRETED BY THE MICHIGAN
SUPREME COURT IN CITY OF PORTHURON VJENKINSON?

A, Standard ofreview

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

defense to the charge of felony nonsupport when he entered his unconditional plea. People v

Bulger, 462 Mich 495, 517 n 7; 614 NW2d 103 (2000), overruled in part on other grounds in

HalbertvMichigan, US ; 125S Ct 2582; 162 L.Ed.2d 552 (2005).

B. Analysis pf the issue

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

App ; NW2d ; 2010 WL 1568450 (2010) (Appendix C). What distinguishes this case

from Likine is that the defendant in Likine was convicted following a jury trial whereas, here,

Defendant was convicted by an unconditional plea. Thus, in this case, Defendant forewent the

opportunity to argue the inability-to-pay defense. Hence, as stated above, this issue is waived.

Bulgen, supra.

In Adams, the Court of Appeals held that Child Support Failing to Pay, MCL 750.165, is

a strict liability offense and as such a defendant did not have the right to raise an inability-to-pay

defense. In Westman, the Court of Appeals held that its holding in Adams was not in conflict

with the defendants constitutional right to due process. Westman, supna, 262 Mich App at 190-

191. Defendant contends that, where a defendant does not have an ability to pay the amount of

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

Constitution as interpreted by City ofPont Huron v Jenkinson, 77 Mich 414; 43 NW 923 (1889).

The People disagree with Defendants reading ofJenkinson.

5
 In Jenkinson, the defendant was prosecutedby a local ordinance for failing to comply

with a local ordinance that required property owners to construct and maintain 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. Jenkinson is clearly distinguishable

from Defendants case on the facts. Jenkinson never 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 WL 1568450, * 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 decision

in Jenkinson, 77 Mich at 4 19-420, the Michigan Constitution forbids the
interpretation of MCL 750.165 as a statute which prevents the presentation of an
inability to pay defense, thus criminalizing an involuntary omission. In
Jenkinson, the impoverished defendant was prosecuted for failing to comply with
a local ordinance that imposed a duty upon property owners and occupants to
construct, keep and maintain good and sufficient sidewalks along all streets and
avenues in front ofor adjacent to such real estate; and upon failure to do so, such
person, after due notice, shall be liable to prosecution.... Jenldnson, 77 Mich at
417. The Jenkinson Court found that the ordinance was not only void, but
unconstitutional on the ground 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 make his non-performance of such duty a
crime, for which he may be punished by both fine and imprisonment. Id. at 419.
Defendants reliance on Jenkinson is misplaced.

Defendant claims that MCL 750.165 is unconstitutional because, just as in

Jenkinson, the State imposed upon her the duty of paying child support in the
amount of $1,131 a month when it was impossible for her to perform that duty in
light of her poverty and, further, she was prevented from presenting such a
defense to this strict liability offense. But, unlike the defendant in Jenkinson,
defendant was prosecuted for failing to comply with a court order that was
entered after a judicial determination was made that defendant had the financial
means to comply with the court order, i.e., the duty imposed upon defendant was
adjudged possible for her to perform.

6
 Defendant was a party to several civil proceedings involving the
modification of her child support obligation which afforded her ample opportunity
to present evidence of her ability or inability to pay an increased amount of child
support. At those proceedings evidence was adduced that, while defendant was
paying $181 a month in support of her three minor children, she purchased a
house worth about $500,000 by securing two mortgages in her name that
obligated her to pay $3,000 a month. She also purchased a brand new vehicle.
Thereafter, defendant was adjudged, in accordance with the evidence of her
standard of living, to be capable of paying child support in the amount of $1,131 a
month for her three minor children. Thus, unlike the defendant in Jenkinson, the
State did not impose upon her a duty that was impossible for her to perform. And
defendants ineffective assistance of counsel claim premised on her attorneys
failure to bring Jenkinson to the trial courts attention and to raise a claim under
the Michigan Constitution is without merit. See People v Mack, 265 Mich App
122, 130; 695 NW2d 342 (2005). [Likine, supna, 2010 WL 1568450, * 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, 534 US 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 MCL 750.165 is a strict liability offense and prohibits the inability-to-pay defense did

7
not violate Defendants Constitutional rights and there was no error in the trial courts

prohibiting Defendant from raising such defense.

1. THE CIVIL PROCEEDING FOR DETERMINATION OF SUPPORT

LEVELS DOES NOT MAKE THE STATUTE UNCONSTITUTIONAL.

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 means to afford, because they were not made under a

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 pay support is

an element ofthe 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. People v Monaco, 262 Mich

App 596, 606; 686 NW2d 790 (2004), affd in part and revd in part on other grounds 474 Mich

48 (2006); Likine, supra, 2010 WL 1568450, * 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 ofthe support order by timely paying support

under the terms of the order.

8
 In 1999, when the current strict liability felony non-support offense was enacted, the

Legislature intended to criminalize the failure to pay child support ordered by the divorce or

Family Court. A defendant is entitled under the Fifth and Sixth Amendments to the United

States Constitution to a jury determination of every element ofthe offense charged. Apprendi v

New Jersey, 530 US 466, 477; 120 S Ct 2348; 147 L Ed 2d 435 (2000); United States v Gaudin,

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

715 NW2d 778 (2006). [T]he Due Process Clause protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with

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

Winship, 397 US 358, 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 there the additional requirement that Defendanthad the

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 basis for 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 the

underlying support order. Pursuant to MCL 600.1021, the family division of
circuit court has sole and exclusive jurisdiction over cases of divorce and ancillary

1 A collateral attack occurs when a challenge is made to a judgment in any way besides a
direct appeal. People v Howard, 212 Mich App 366, 369; 538 NW2d 44 (1995).

9
 matters, including those matters set forth in the support and parenting time
enforcement act, MCL 552.601 to 552.650. Under MCL 552.16(1), the court
which enters a judgment ofdivorce may enter the orders it considers just and
proper concerning the care, custody, and, as set forth in the support and parenting
time enforcement act, MCL 552.605, the support of minor children. Under MCL
552.605, the court that orders the payment ofchild support must generally order
child support in an amount determined by application ofthe child support
formula, unless the court specifically finds that its application would be unjust or
inappropriate. [A] support order that is part of a judgment or is an order in a
domestic relations matter is a judgment on and after the date the support amount
is due with the full force, effect, and attributes of a judgment of this state....
...

MCL 552.603(2). Pursuant to MCL 552.1224, the tribunal of this state that
issues a support order consistent with this states law has continuing, exclusive
jurisdiction over a child support order if the parties and children at issue remain
residents of this state. Accordingly, with regard to domestic relations actions,
MCR 3.205(C) provides:

(1) Each provision of a prior order remains in effect until

the provision is superseded, changed, or terminated by a
subsequent order.

(2) A subsequent court must give due consideration to prior

continuing orders of other courts, and may not enter orders
contrary to or inconsistent with such orders, except as provided by
law. [Likine, supra, 2010 WL 1568450, * 3 (Appendix C, slip op,
pp 3-4).]

Thus, as correctly explained by the Court of appeals in Likine, supra, the family division

of the circuit court has sole and exclusive jurisdiction over cases of divorce and ancillary matters,

including those matters set forth in the support and parenting time enforcement act, MCL

552.601 to 552.650 pursuant to MCL 600.1021 [.] Likine, supra, 2010 WL 1568450, *3

(Appendix C, slip op, p 3). Also, [p]ursuant to MCL 552.1224, the tribunal of this state that

issues a support order consistent with this states law has continuing, exclusive jurisdiction over

a child support order if the parties and children at issue remain residents ofthis state. Likine,

supra, 2010 WL 1568450, *3 (Appendix C, slip op, p 3). All challenges to the support order

itself must be made in the Family Court having appropriate jurisdiction over the matter. 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 at issue in the criminal case. Accordingly, in the

criminal arena, the inability to pay is a non sequitur in proving the commission of the offense.

Therefore, it follows that there is no defense of an inability to pay to the criminal charge because

such is irrelevant to whether the crime was committed. See Likine, supra, wherein the Court

explained:

The right to present a defense is a fundamental element of due process, but

it is not an absolute right. People v Hayes, 421 Mich 271, 279; 364 NW2d 635
(1984). The right extends only to relevant and admissible evidence. People v
Hackett, 421 Mich 338, 354; 365 NW2d 120 (1984). Evidence is relevant if it has
any tendency to make the existence of any fact that is ofconsequence to the
determination ofthe action more probable than it would be without the evidence.
MRE 401. The elements of the crime of felony nonsupport are (1) the defendant
was required by a decree of separate maintenance or divorceorder to support a
child or current or fonner spouse, (2) the defendant appeared in or received notice
by personal service ofthe 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. People v Monaco, 262 Mich App 596, 606; 686 NW2d 790 (2004),
affd in part and revd in part on other grounds 474 Mich 48 (2006). Clearly,
evidence of the inability to pay was not relevant to any fact in issue. Therefore,
the trial court did not abuse its discretion by declining to admit the evidence, and
defendants constitutional right to present a defense was not implicated. See Katt,
468 Mich at 278; Kurr, 253 Mich App at 327. [Likine, supra, 2010 WL 1568450,
* 5 (Appendix C, slip op, p 5).]

2. THE SO-CALLED ELIMINATION OF A VOLUNTARY ACTUS REUS

REOUIREMENT DOES NOT RENDER THE STATUTE
UNCONSTITUTIONAL.

Defendant argues that strict liability offenses cannot punish purely involuntary acts or

omissions because the actus reus of a crime must be the result of a voluntary deed. (Defendants

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

statute. Thus, there is no error in MCL 750.165 being construed as a strict liability offense.

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

[The defendant] claims that her failure to pay the child support as ordered
was not a voluntary actbecause it was completely impossible for her to pay,
i.e., the actus neus component of the crime was lacking. This argument, too, fails.

11
 As our Supreme Court held in People v Monaco, 474 Mich 48, 56-58; 710 NW2d
46 (2006), felony failure to pay child support is not a continuing crime, it is
complete at the time that the individual fails to pay the ordered amount at the
ordered time. That is, the actus reus is the failure to pay the support as ordered.
As discussed above, defendant was afforded numerous opportunities in the civil
proceedings to establish her inability to pay the ordered amount of child support.
Those civil proceedings were the proper forum, and that was the proper time, to
adjudicate such a claim. Accordingly, defendant was not denied due process on
the ground that, because the offense imposes strict liability, she was prevented
from proving that her failure to pay child support in compliance with the court
order was involuntary. [Likine, supra, 2010 WL 1568450, * 4 (Appendix C, slip
op,p4).]

Indeed, by analogy, a purely involuntary act would involve, for example, a driver running

a red light because the driver behind him had failed to stop and pushed the first driver into the

intersection. But if the first drivers brakes failed to operate due to mechanical failure and the

driver had no knowledge that his brakes were defective, some courts would find the driver liable

under a strict liability while others would not. Contrast City ofKettering v Greene, 9 Ohio 2d

26; 222 NE2d 638 (1996), with State vKremer, 262 Minn 190, 192; 114 NW2d 88 (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

harm caused 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 Monissette v United States, 342 US 246, 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
least once to have his child support modified. The Family Courts modification ofDefendants

child support at his request clearly establishes that Defendant had the means to support his

children. Defendants continued act not to pay his child support obligation was voluntary much

like a driver who continues to drive his car with defective brakes and then runs a red light. It is

not a situation where Defendant had his money stolen by a thiefon the way to make his payment

to the Friend of the Court (similar to the driver being pushed from behind by a second driver

through a red light).

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

stated inability to pay would be only a surrounding circumstance. Defendant had prior 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 MCL 750.165.

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

court order of child support. The decisive language of MCL 750.165 is that the individual does

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

would impose any scienterrequirement that must accompany the failure to pay the support in

the amount or at the time stated in the order. MCL 750.165; 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 whom they

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

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

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

13
implied in the absence of any language supporting such an interpretation. Adams, supra, 262

Mich App at 96.

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. DEFENDANT WAS NEITHER DENIED THE BENEFIT OF HIS

COBBS AGREEMENT NOR INCARCERATED BASED UPON AN
UNCONSTITUTIONAL CONSIDERATION OF HIS INDIGENCY
AND~THEREFORE.THE TRIAL COURT DID NOT
ERRONEOUSLY DENY HIS MOTION TO WITHDRAW HIS
PLEA.

A. Standard ofreview

See Argument l.A.

B. Analysis ofthe issue

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

MCR 6.310(C), which provides:

Motion to Withdraw Plea After Sentence. The defendant may file a

motion to withdraw the plea within 6 months after sentence. Thereafter, the
defendant may seek relief only in accordance with the procedure set forth in
subchapter 6.500. If the trial court determines that there was an error in the plea
proceeding that would entitle the defendant to have the plea set aside, the court
must give the advice or make the inquiries necessary to rectify the error and then
give the defendant the opportunity to elect to allow the plea and sentence to stand
or to withdraw the plea. If the defendant elects to allow the plea and sentence to
stand, the additional advice given and inquiries made become part ofthe plea
proceeding for the purposes of further proceedings, including appeals.

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

Montrose, 201 Mich App 378, 380; 506 NW2d 565 (1993) (interpreting predecessor MCR

14
6.311). Defendant has established none. Neither has he established that the record shows his

innocence, nor that his trial counsel was ineffective, each considered, apparently, viable claims

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

563; 562 NW2d 241 (1997).

Furthermore, Defendants claim has nothing to do with orderedrestitution. Indeed, he

was not orderedto pay $3,000.00 by December 8, 2008, or a total of$8,000.00 by May 2009.

Instead,pursuant to his negotiated plea agreement, sentencing would be delayed until May 2009

if Defendant paid $3,000.00 in restitution by December 8, 2008, and he would not be

incarcerated if he paid a total of $8,000.00 by May 2009.

This agreement was a perfectly appropriate idea by those present at the time of

Defendants plea, including the Defendant. Indeed, Defendant was privy to and knew better than

the assistant prosecuting attorney and the trial court whether he had the ability to make these

agreed-upon scheduled payments. Certainly, Defendants silence to the contrary and 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 part of the trial courts Cobbs2

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

sentencing was part of 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, as agreed, sentencing would be further delayed until May 2009, and if

Defendant paid the additional sum of $5,000.00 by May 2009, as agreed, the court will not

2 People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).

15
sentence the defendant to any type of incarceration in the Muskegon County Jail or Department

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

It is against this backdrop that this issue is addressed.

1.

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

involuntarily failing to pay court-ordered restitution. See, e.g., Tate v Short, 401 US 395, 397-

400; 91 S Ct 668, 670-672; 28 L Ed 2d 130 (1971); Bearden v Georgia, 461 US 660, 667-668;

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

NW2d 760 (1999).

On the other hand, there is no constitutional infirmity in imprisoning an offender with the

means to pay restitution that refuses or neglects to 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, as will be more fully discussed

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

Bearden line 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 bonafide efforts 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 name is Lavonne Harris. Mr. Harris has
stated to me numerous times, in multiple phone conversations, that I will never
see another dime from him regarding our two children.

When Ive called to ask him for help when our son had a broken
hand for medical issues, I had-- My insurance didnt cover some of the special
needs that he had. I couldnt get any help. He told me Id never see anything else
from him.

I struggle every single day to feed my kids, to put clothes on their

back. I work full time. I work all of the overtime that I possibly can. I supply for
my kids the best that I possibly can. My son dont even have winter apparel this
year, because I cant afford it, because I cant get any help from their father. He
has had absolutely no contact with them in a year and a half.

THE TRIAL COURT: He says hes got a lot ofhealth

problems, back problems, and things like that. Have you seen those?

MS. HARRIS: The only health problems that he has is--

He does have an issue with his back. According to his heart, he has-- When he
and I were together, he had nothing wrong with his heart. So where the heart
issue is coming from, I dont know. He has an addiction problem to alcohol and
drugs, is what he has.

THE TRIAL COURT: All right.

MS. HARRIS: He has a problem with working. He has

other 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 my job that Ive

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

arrears came from. I mean there was arrears when my divorce 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, she related how Defendant did this before with his other children. (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 and heart 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 Williams and Tate carefully distinguished this substantive limitation

on the imprisonment of indigents from the situation where a defendant was at
fault in failing to pay the fine. As the Court made clear in Williams, nothing in
our decision today precludes imprisonment for willful refusal to pay a fine or
court costs. 399 US at 242 n 19; 90 S Ct at 2023 n. 19. Likewise in Tate, the
Court emphasize[d] that our holding today does not suggest any constitutional
infirmity in imprisonment of a defendant with the means to pay a fine who refuses
or neglects to do so. 401 US at 400; 91 S Ct at 672.

This distinction, based on the reasons for non-payment, is of critical

importance here. If the probationer has willfully refused to pay the fine or
restitution when he has the means to pay, the State is perfectly justified in using
imprisonment as a sanction to enforce collection. See ALl, Model Penal Code §
302.2(1) (Proposed Official Draft 1962). Similarly, a probationers failure to
make sufficient bonafide efforts to seek employment or borrow money in order to
pay thefine or restitution may reflect an insufficient concernfor paying the debt
he owes to societyfor his crime. In such a situation, the State is likewisejust~fled
in revokingprobation and using imprisonment as an appropriate penaltyfor the
offense. [Bearden, supra, 461 US at 668; 103 S Ct at 2070. Emphasis supplied.]

18
 In this case, Defendant has failed to make bonafide efforts to seek and maintain

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

me numerous 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 me Id 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 ofJimmy 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 May 2009 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 and concluded that a defendants

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

Protection Clause.

19
 In Dickey v State, 257 Ga App 190; 570 SE2d 634 (2002), the court held that a

defendants plea agreement to pay restitution trumped his later claim of indigence permitting

incarceration when he failed to honor his agreement:

In this case, Dickey was not without fault. When he agreed to the plea
bargain, Dickey entered into a contract. At the time, Dickey knew that he would
be 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 to
make the payment, he should have informed the other parties before everyone
agreed to the terms. There is no evidence that he did so. Dickeys silence, when
he should have spoken, and his ultimate breach, make him culpable. He was not
without fault.

Moreover, this case is distinguishable from Bearden. The Courts opinion

in Bearden reflects that the trial court unilaterally imposed the probated sentence,
fines, and restitution as an alternative to incarceration. Here, Dickey negotiated
and agreed to his probated sentence and the payment of restitution to avoid
incarceration.

In this case, we can discern no reason why Dickey should be entitled to

the benefit of a probated sentence when he breached his agreement with the State.
Again, unlike Bearden, Dickey was not involuntarily sentenced by the court to
pay a fine as a condition of probation. Dickey negotiated payment of restitution
to avoid what likely would have been significant time in prison. Having breached
the plea agreement that he negotiated, Dickey cannot now insist that he remain on
probation and be excused from performance due to indigence. As pointed out by
the court in State v Caballero, [t]o hold otherwise would permit defendants,
either in good or bad faith, to bargain for payment of a fine in exchange for a
suspended sentence, renege, and then avoid incarceration or any other punishment
for the offense committed. We do not believe the Bearden Court intended such
result. Accordingly, we find no merit in Dickeys argument that Bearden required
the trial court to find he willfully refused to pay restitution before it revoked his
probation. [Dickey, supra, 257 Ga App at 192, 194; 570 SE2d at 636, 637.
Footnotes omitted.]

See also State v Nordahl, 680 NW2d 247, 251-252, 253 (ND, 2004) (distinguishing Bearden and

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); State v Jacobsen,

20
746 NW2d 405, 410-411 (ND, 2008) (same); Patton v State, 458 NE2d 657, 660 (md Ct App,

1984) (distinguishing Bearden, where the trial court had imposed the conditions on the

defendant, and held that the defendant knew better than anyone whether he had the ability to

raise money, and the risk he ran if he did not; thus, although the defendant had lost his job and

could not find another one, and, therefore, became unable to pay restitution pursuant to his plea

agreement and probated sentence, no Equal Protection Clause violation in incarcerating him).

In Commonwealth v Payne, 602 NE2d 594 (Mass App Ct, 1992), the court stated:

Unlike the circumstances in Bearden and Gomes, where the prescribed

punishments were fines, here the statutory violations were punishable by
sentences to State prison. There was, therefore, a legislative expression that the
States penological interests included incarceration. As matter of sound judicial
discretion, it was open to the sentencing judge, in the event of a finding of guilty
ofthe offenses charged, to impose sentences requiring incarceration. But for the
plea bargain, as we have noted, the second Superior Court judge would have
opted for some imprisonment. Here, the plea bargain itself was tantamount to a
representation by Payne that he could pay the restitution. Otherwise there would
have been no bargain, and sentencing, assuming he were found guilty, would have
taken its normal course. Had the judge opted for incarceration as matter of
preference, Paynes financial status would have been irrelevant; had the judge
decided that a fine or restitution was not practicable because of the defendants
inability to pay, a sentence of imprisonment would not have been invalid under
the Constitution. See Bearden v Georgia, 461 US at 669-6 70; 103 S Ct at 2071.

***

Payne was offered the privilege of making restitution as part of a plea

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

Although the judge did not hold a separate hearing on Paynes ability to
pay, 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 pay
restitution in whole or in part and that he had made no effort to liquidate assets
which he owned. Such a view was justified for the reason, if no other, that this
was the third occasion on which the defendant had asked for time to make
restitution and, at the time of the May 13, 1991, sentencing hearing, he had not
reduced the sum due by so much as a dollar.

21
 The determination by the Superior Court judge that he possessed authority
to impose the sentence of incarceration is affirmed. [Payne, supra, 33 Mass App
Ct at 556-557; 602 NE2d at 597.]

In this case, also unlike the circumstances in Bearden where 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. MCL 769.34(2) and (3); People v

Buehler, 477 Mich 18, 24; 727 NW2d 127 (2007). Indeed, ifthe 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 and compelling 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 MCL 769.34(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 and compelling reasons existed to

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

22
incarcerated following his breach of the plea agreement. In other words, be cannot show

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

greater than the 10-month minimum sentence required under the guidelines. Given Defendants

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

Accordingly, Defendants Equal Protection argument is without merit.

IV. DEFENDANT WAIVED HIS CLAIM THAT THE TRIAL COURT

ERRONEOUSLY ADOPTED THE CHILD-SUPPORT
ARREARAGE IN FAMILY COURT AS THE RESTITUTION
AWARD DESPITE ITS FAILURE TO FIND THAT THIS AMOUNT
WAS ALL THE RESULT OF CRIMINAL CONDUCT.

A. Standard ofreview

Apparent error that has been waived is extinguished. Riley, supra, 465 Mich at 449,

citing People v Carter, 462 Mich 206, 215-216; 612 NW2d 144 (2000). When a court proceeds

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, 465 Mich 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 may not

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

531 NW2d 159 (1995), which quoted People v Hardin, 421 Mich 296, 322-323; 365 NW2d 101

(1984). Deviation from a legal rule is error unless the rule has been waived. Carter,

supra, 462 Mich at 214, quoting United States v Olano, 507 US 725, 732-733; 113 S Ct 1770;

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

merit, if it was waived, the error advanced is extinguished and not subject to appellate review.

23
 B. Analysis oLthe issue

1.

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

Friend ofthe Court calculations ofthe child support arrearage. (Defendants motion, p 20.)

Defendant acknowledges in his motion that the $12,781.39 figure was provided to the trial court

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

presumed to be accurate, People v Grant, 455 Mich 221, 233; 565 NW2d 389 (1997); People v

Ratkov, 201 Mich App 123, 125; 505 NW2d 866, 888 (1993). At sentencing, when Defendant

was asked whether he had any additions or corrections to make to the PSIR, Defendant told the

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

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

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

NW2d 503 (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 an

evidentiary hearing. Absent such objection, the court is not required to order, sua
sponte, an evidentiary proceeding to determine the proper amount of restitution
due. Instead, the court is entitled to rely on the amount recommended in the
presentence investigation report which is presumed to be accurate unless the
defendant effectively challenges the accuracy of the factual information. [Id. at
276 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; MCL 780.766(2). Under the Crime Victims Rights Act, MCL 780.766(2), a defendant

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

Honorable Court in Gahan explained that this statutory phrase is to be given a broad

construction and that 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 People vLaw, 223 Mich App 585, 589; 568 NW2d 90 (1997), revd in part on other

grounds 459 Mich 419; 591 NW2d 20 (1999), the Court determined that a defendants failure to

MCL 769.la; MCL 780.766(2); see also People v Gahan, 456 Mich 264, 272; 571 NW2d
503 (1997).

25
pay child support fell within the scope of what would be classified as a defendants course of

conduct:

In the case before us, we agree with the trial court that the unpaid child
support and medical expenses were attributable to defendants course of conduct
of neglecting his children. Persails, supra. Moreover the expenses were easily
ascertainable. Tyler, supra. Documentation was submitted to the trial court
during the restitution hearing verifying the amounts owed. Finally, the losses
were 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 ordering
defendant to pay the back child support and Christines unpaid medical bills.

As can be 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 May 14, 1979, defendant was to pay $43 a week in
child support[.] People v Law, 459 Mich 419, 421; 591 NW2d 20 (1999).

Defendant never denied that this was the amount be owed for arrearages in the divorce
proceedings. Instead, he only indicated that I dont even know where all the arrears came from.
I mean there was arrears when my divorce finalized. (12/08/2008 Sentence Tr, p 10.) This
comment hardly represents an actual challenge to the arrearage amount. Some simple math and
a fair inference demonstrate that Defendant owed at least $12,781.39 in child-support arrearages
at the time of sentencing. It was undisputed that Defendants child support was last set in 2006
at $612.00 per month. (Presentence Investigation Report, p 2.) It was also undisputed that
Defendant had not paid any child support since June 1, 2007. (Id.) He was sentenced on
December 8, 2008. At that time he would have been in arrears $ 10,404.00.00 if we only
considered 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 was
finalized. (12/08/2008 Sentence Tr, p 10.) Thus, we know that Defendants arrearage had to
have been greater than $10,404.00. This is also supported by Ms. Harriss statements to the
Court 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 amount
ctated 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 NW2d 20(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 MCL 552.605(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, MCL 552.5 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.

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

support, which failure generates a criminal complaint under MCL 750.165, 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 and unable to work. This has been dealt

with above. In other words, there are procedures 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,
MUSKEGON COUNTY PROSECUTOR
Attorney for Plaintiff

Dated: August 10, 2010 __________________________

Assistant Prosecuting Attorney

BUSINESS ADDRESS & TELEPHONE:

Hall of Justice, Fifth Floor
990 Terrace Street
Muskegon, MI 49442
(231) 724-6435

28
 IN THE CIRCUIT COURT FOR THE COUNTY OF MUSKEGON
STATE 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~efendant
Attorneyfor Plaintiff ~~WHITEHALL ROAD, LOT 39
1159 Peck Street / W41~I~jALL,
Ml 49461
Muskegon, MI 49441
(231) 722-2222

DEFAULT JUDGMENT OF DIVORCE

At a session of said Court held at the Muskegon County

Build~inthe City of Muskegon, State of Michigan on the
/~ day of October 2003.
PRESENT: HON. Jot-IN C. RUCK
Family 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
Chris A. Moughtaling,
t u~r~ ~
P5].?
t r.
APPENDIX
.1)
A
722—2222
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 order as 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 parent whose 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, MCL 722.31 ,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 ofthe children

Ch~i.s A. Houghtaling, PS) ~ Phone: (231) 722—2222

D 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 as

husband and wife. Itdoes not terminate the rights and responsibilities of the
parties as parents. The Court expressly affirms that it is in the best interests
ofthe child to have a positive relationship with each parent. Accordingly, it
is the legal and moral responsibility of each parent to take such action as
from time to time is required to build and maintain a strong and positive
relationship between the child and each parent. The custody and parenting
time provisions of this Judgment shall be subject to the following guidelines:

a. The parties shall consult as often as may be necessary concerning

the childs education, health, vacation activities, career plans and
other significant decisions or events.

b. The parent having physical control of the child may decide and take
appropriate action concerning all routine matters relatingto the childs
current activities which are not inconsistent with the parents joint
plans.

2. Each party to this Judgment shall:

a. Keep the other parent informed as to name, location, and telephone

number of a third party care giver;
b. Immediately notify the other party of any illness or injury that requires
hospitalization;

c. Have authority to authorize emergency and routinehealth procedures.

An authorized child care giver or school officials may also authorize
such emergency medical procedures as may reasonably be required
until a parent is available to give such consent;

d. Take all reasonable steps designed to foster a feeling of affection

between the child and the other parent; AND

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

Chris A. Moughtaling, P51~ Phone: (231) 122-2222

COOK & 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 BENNETT HARRIS, 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) 7222222

COOK & 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 Enforcement Act, 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) 7222222

COOK & 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.

INCOME WITHHOLDING AND HANDLING FEES

IT IS FURTHER ORDERED that an order ofincomewithholding 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. Ifthere 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 June 30

th of each year (4% on December 31st and 4% on June 30
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—2222

COOK & 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 December 31st 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 oftheir 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 oftheir 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) 722~2222

COOK £ 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.

HEALTH INSURANCE
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); MCL 722.3; 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) 7222222

COOK & 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 HEALTH INSURANCE STATUE

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) 7222222

COOK L TJc1rTr,H1~ALING. P.L.C Fax: (231) 722—8312
 7515 Whitehall Road
Whitehall, Ml 49461
PHONE: no phone
SS#: 380-06-1383
EMPLOYER. unemployed

IT IS FURTHER STATED 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 ofthe Friend ofthe 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 FURTHER ORDERED 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.

ALLOCATION OF MARITAL 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) 722-2222

COOK & 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 FURTHER ORDERED that 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 ofthis 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) 7222222

COOK & 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.

WHEN JUDGMENT BECOMES FINAL

IT IS FURTHER ORDERE that this Judgment shall become final on the date
hereof. ~nc.Ru~~

Circuit Court Judge /

~ountersigned: ,.. .. ~ ~

Deput erk
APPROVED:

Mu~kegonCounty
&c41~T
Friend of the Court
Chris A. Fax:
Houghtaling, PS1~~ Phone: (231)
(231) 722-2222
722—8312
4

STATE OF MICHIGAN
IN THE CIRCUiT COURT FOR THE COUNTY OF MUSKEGON

The Honorable John C. Ruck

Circuit Court Judge

LAVONNE KAY HARRIS, ,

Plaintiff, :~...

V Case No. 03-02O805-DM~

SCOTT BENNETT HARRIS,

Defendant.
I,
Annette Smedley P63987 Scott Bennett Harris
Attorneys forPlaintiff Defendant In Pro Per
3006 Glade Street, P 0 Box 899 .517A Grinnel Street
Muskegon, MI 49443-0899 K~~W~est, FL 33040
(231) 830-0036 (3O5)~3-9l72 -

OUALtFIED DOMESTIC RELATIONS ORDER

At sessior~ofsaid Court held on the C day of

a
(~.Ik 2004, in the City ofMuskegon, County
-,

ofMuskegon, State ofMicb.igan.

PRESENT: The Honorable John C. Ruck
Circuit Court Judge- Family Court Division

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 the parties shall prepare and enter a Qualified Domestic

Relations Order (QDRO).

On motion ofAnnette Smedley, attorney for Plaintiff, said QDRO is hereby

entered to state in its entirety as follows:,

1
 IT IS ORDERED AND AD.TUDGED that this QDRO constitutes a component

part ofthe property settlement provisions of the Consent Judgment ofDivorce in this

matter. It is entered for the purpose of awarding to the Plaintiff wife an interest in the

Defendant husbands accmed benefit in the K.L. Industries, L.L.C., pursuant to §

401(a)(13) and 414(p) of the Internal Revenue Code of 1986, as amended (the Code),

and § 206(d)(3) of the Employee Retirement Income Security Act of 1974, as amended

(ERISA).

1. ~ The qualified plan subject to this Order is the:

401K Plan ofK.L. Industries .1790 Sun Dolphin Drive Muskegon,

MI 49444.

2. Plan Administrator. The plan administrator is:

K.L. Industries
1790 Sun Dolphin Dr.
Muskegon, MI 49444
Attn: Kelley Ochazak

3. Particinai~t.The Participant in the plan is the Defendant.

Scott Bennett Harris

517A Grinnel Street
KeyWest, FL 33040
SS#: 378-74-4688
DOB: 9-8-1964

4. Alternate Payee. The Alternate Payee is the Plaintiff.

Lavotme Kay Harris

5832 S. Oceana Drive
Rothbuxy, MI 49452
SS#: 380-06-1383
0GB: 7-6-1973

5. Marria.g~.The Participant and the Alternate Payee were married on:

March 12, 1999. :.. .

2
 6. Benefits to Alternate Payee,

(a) Amount.

The Alternate Payee is assigned one hundred percent (100%) ofthe

Participants pension from start ofParticipants employment at K.L.
Industries through October 10, 2003, the date of the Judgment ofDivorce
in this case.
(b) ~yment to Alternate Payee. The Plan Administrator shall distribute to
the Alternate Payee the above-described benefits in the form ofone lump
sum payment as soon as administratively practicable after the Plan
Administrator determines the order to be a QORO.
Tax Treatment ofBenefits to Alternate Payee. The Alternate Payee shall
include in her gross income, for the tax year of receipt, all retirement
benefits that she receives pursuant to the Participants assignment of
benefits; and, accordingly, the Participant shall not include these benefits
in his gross income. The Alternate Payee shall be treated as the sole
distributee under Sections 72 and 402 ofthe Code, or any similar
successor provision, of any payment or distribution that is made to her
under the Participants assignment ofbenefits. Further, the Participants
investment in the Plan, if any, shall be shared proportionately by him and
the Alternate Payee as provided in § 72(m)( 10) ofthe Code, or any similar
successor provision.

2. ~ype or Form of Benefit or Option. This QDRO does not require the Plan
to provide any type or form ofbenefit, orany option, not otherwise
provided under the Plan. This QDRO does not require the Plan to provide
benefits in excess ofthe benefits to which the Participant would have been
entitled in the absence ofthis QDRO. This QDRO does not require the
Plan to provide benefits to the Alternate Payee which are required to be
paid to another alternate payee under another order previously determined
to be a QDRO.

3. Successorfi~i.This QDRO shall remain qualifiedwith respect to any

successorplan to the Plan identified in this QDRO.

4. Conflict. In case of conflict between the terms ofthe QDRO and the
terms ofthe Plan, th~terms ofthe Plan shall prevail. For example, if the
Plan is terminated and all benefits are distributed, the amounts due under
the QDRO from the Plan shall be immediately distributable.
5. Change ofAddr~. The Alternate Payee shall keep the Plan
. . Administrator informed of her currentaddress and telephone number.

3
 Notice of change of address or telephone number shall be made in writing
to the Plan Administrator, addressed as follows: K,L. Industries 1790 Sun
Dolphin Drive Muskegon, MI 49444.

6. Hold Harmless. The Alternate Payee shall hold the Plan and its sponsors
and fiduciaries harmless from any liabilities which arise from following
this QDRO, including attorneys fees which may be incurred in
connection where any claims which are asserted because the Plan honors
this QDRO.

7. Attorney Fees. The Plan and its sponsors and fiduciaries shall not be
responsible for any attorneys fees incurred by the Participant or the
Alternate Payee in connection with obtaining or enforcing this QIDRO.

8. . Notices. All notices to be given or documents to be sent to the Plan

Administrator shall be addressed as set forth in Paragraph 11 herein and
shall not be deemed given to the Plan unless sent certified mail, return
receipt requested.

9. Modification ofODRO. The Plan Administrator and the Alternate Payee

may modify (by written agreement) any provision ofthis QDRO without
further court approval so long as the change has no adverse effect on the
Participant. The Plan Administrator may unilaterally modify any term of
this QDRO to the extent necessary to comply with applicable law.

10. Beneficiary. The Alternate Payee shall be a beneficiary ofthe Plan for
purposes of ERISA.

11. Qualified Domestic Relations Order. The Participant, the Alternate Payee,
and the Court intend this order to be a QDRO under the Retirement Act of
1984, Public Law Number 98-397.

12. Mutual Intent. The Parties agree that theirmutual intent is to provide the
Alternate Payee with a retirement payment that fairlyrepresents what they
have agreed to be her marital share of the Participants accrued retirement
benefit as defined above. This QDRO shall continue to apply until such
time as all benefits awarded to Alternate Payee under this QDRO are
distributed. This Court retains jurisdiction to clarify this QDRO in the
event that the Plan Administrator raises questions regarding the
interpretation ofthis QDRO or refuses to acknowledge the validity ofthis
QDRO as against the Plan. Participant shall execute any documents and
undertake an~jactions which are necessary to fulfill the terms ofthis
QDRO. Further, Participant shall not take any action which would in any
way impair the rights ofAlternate Payee to receive the benefits described
above.

4
 13. Domestic Relations Order. This Order is issued pursuant to the laws of
the State ofMichigan which relate to the provision ofchild support,
alimony payments and marital property rights, as defined therein between
spouses and former spouses in actions of divorce.

IT IS SO ORDERFi~

~
Circuit Court- Family Court Mivision ~ -

Countersigned: ~ ~

~puty Clerk ..~f

I c~

Approved for Entry:

Annette Smedl 87 —- —---.... Scott B. Harris

Attorney for Plaintiff Defendant In Pro Per

5
 EbTELEP#O~EA~~~
K/)I&/?L. ~6
••-~OFMlC~G---r
14th JUDICIAL CIRCUIT L MOI1ON TO REVIEW CHILD SUPPORT
L MUSKEGON COUNTY ~19~~!~-b
~ ~
~ ~724~21
Plaintiffs info matiofl Defe~idantsinfomiatiofl
name: ~ 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~NFORMA11ON
Ptatntrffs information: Defendants inforflat;0fl
__________

employei:I i~ti~T~/.f
(O ~C~ employer: ,1~TA44J7/C 12r~fL5
address; 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 current chid 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~Or
arr~Thge
payment may increase orde~re~Aending on the parties current income irrnlat9fl.

~/~
r
-

Date
/c ~ - —

.--, w

WRTE BELOW ThIS LINE

DO NOT~OT1CEOFHEAR~

A hearingWill 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 ~UPPORT
ORDER CASE NO.
14TH JUDICIAL CIRCUIT (PAGE 1)
MUSKEGON COUNTY ~ MODIFICATION 20030208050M
990 Terrace, l(obza dalI of Justice, Third Floor Muskegon, Ml 49442 FAX no. (231) 724~1io8
Plaintiffs name, address, and telephone no. 15ifendantS~, address, and telephone no.
LAVONNE HARRIS ~SCOTT1-IARRIS
CONFIDENTIAL ADDRESS V 1503 RIVERA 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 a
written 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~~port eff. date: 6/20/06

SCOTT HARRIS LAVONT4E HARRIS I Child care eff date:
Childrens names and birth dates:

ZACHARY HARRIS 9/15/96; TIA HARRIS 5/4/00

Children supported: I child 2 children 3 children 4 children 5 or more children
Base 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)

2~
~ ~-.ti,, rt ~ ~e~iriPflFR PAGE 1 MC .a.l MCL552.517.MCL552.517b(3).M~~
 Original - Court 2nd copy - Defendant
Approved, 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 SCOTT HARRIS

4. Insurance, For the benefit of the children, ~ plaintiff ~ defendant shall maintain health care coverage
through an insurer (as defined In MCL 552.602(0)] that includes payment for hospital, dental, optical, and other medical expenses
when that coverage is available at a reasonable cost, including coverage available as a benefit of employment or under an
individual policy
O 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 paid
48°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 of
ordinary health care expenses exceeding the annual ordinary health care amount within a calendar year before filling a
demand 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 review
or 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 the
date it is due and is not modifiable retroactively. A surcharge will be added to past due support. Unpaid support is a lien by
operation of law and the payers property can be encumbered or seized if an arrearage accrues for more than the periodic
support 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~,within
21 days of any change in: a) their mailing or residence address and telephone number-, b) the name, address, and telepnone
number 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 child
to the person who is legally responsible for that child; 2) shall abate support charges for a child who, resides on a full-bme basis
with 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 also
file 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 be
suspended effective the date of incarceration and immediately reinstated at the previously court ordered amount upon
the payers release, unless the incarceration is due to failure to pay child support. The Friend of the Court shall provide
the payee with notice and an opportunity to object to the suspension of the payers child support. This provision shall
have 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) ] 2003020805DM
990 Terrace, l<obzaHall ofJusU~e,Third Floor, Muskegon, MI 49442 FAX no. (231) 724-1108 (231) 724-64~T

FINDINGS:
HEARtNQ HELD ON 7-17-06

1. Defendant father petitioned for modification ofsupport. The parties have two children who live with the
mother.
2. The father earns $400 per week gross.
3. The mother works 32 hours per week at $11.10 per hour, She pays $160.50 biweekly for health insurance for
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 apportioned
between the parties since the father does not provide insurance. The mother also states she pays $200 per
week for child care. It this is true, it would leave her with a net income of$18 per week. This does not make
sense. 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 èfenda~ifC~~tipUIa~n) Date

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

PreP~~db~LL [~~TIHCATE
OF 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~nirlast
known 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 SERVICES
THE CHILD ~jPPORT PROGNOSTICATOR 2006

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

CHILD SUPPORT RECO~*~~ENDATION

This case has been calculated with mother having primary physical custOdy.
GENERAL CARE: 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 parent
has parenting time for six or more consecutive overnight periods. Ordinary
health care costs and child care costs should not abate.

ORDINARY HEALTH 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 PREMIUM ADJUSTM~r

Mothers net insurance premium is higher than fatliers net insurance premiwrL.
Therefore, fathers 5 general. care obligation should be increased by $120.
S

The cost of mother s health insurance premium exceeds 5% of her gross income and is
considered to be unreasonable under the Michigan Child Support Formula.

TOTAL MONTHLY SUPPORT AMOt3Wi~

The total monthly support amount is $611.93.

EXTRAORDINARY HEALTH CARE EXPENSES:

Father should pay 51.69 percent and mother should pay 48.31 percent of the
extraordinary health care expenses.

DETAILED INFORMATION ARoT~r INCOME, EXPENSES MID ~JUSTMENTS IS ON TEE NEXT PAGE.

This recommendation was prepared using the October 2004 Support Formula & 2006 tax rates.
PROGNOSTICATOR 20.0 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 SERVICES
THE CHILD _.,PPORT PROGNOSTICATOR 2006

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

TAX, INCOME, EXPENSE AND ADJUSTMENT INFORMATION

FATHER MOTHER
Tax Filing Status: SINGLE HP HZBD
Income Tax Exemptions Considered: 1 3
Annual Tax Deduction Amount: 5150 7550
Supplemental Child Tax Credit: 0 0
Additional Children: 0 0
Local Income Tax Percent: % 0.5%
*** AVERAGE WEEKLY INCOME **~

Salary & Wages: 400.00 340.00

GROSS WEEKLY INCOME: $400.00 $340.00
GROSS MONTHLY INCOME; $1,740.00 $1,479.00

~ AVERAGE WEEKLY EXPENSES ~

Social Security Tax: 24.79 21.07
Medicare Tax: 5.80 4.92
Federal Income Tax: 28.57 0,53
Michigan Income Tax: 13.47 6.01
Local Income Tax: 0.00 1.53

TOTAL AVERAGE WEEKLY DEDUCTIONS: $12.63 $34.06

TOTAL AVERAGE MONTHLY DEDUCTIONS $315.94 $148.16

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

** *OT~R?.D3USTMENTS***
)intOunt of other support orders: 0.00 0.00
Adjustment for other children: 0.00 0.00
Adju~tmeflt for stepchildren; 0.00 0.00
WEEKLY OTHER ADJUSTMENTS: $0.00 $0.00
MONTHLY OTHER ADJUSTMENTS: $0.00 $0.00

AIXTUSTED WEEKLY NET INCOME: $327.37 $305.94

ADJUSTED MONTHLY NET INCOME: $1,424.06 $1,330.84

Cost of Total Insurance Premium; 0.00 349.00

Adjustment for Payers Portion: 0.00 3.16.00
Net Allocable Portion: 0.00 233.00
Number of Others Covered by Policy: 0 0
Number of Other Children Covered: 0 0
Adjusted 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.
PROGNOSTICATOR 20.0 - 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 COURT FOR THE COUNTY OF MUSKEGON

LAVON1~EHARRIS
CONFIDENTIAL ADDRESS

File no. 2003-020805-DM

SCOTT HARRIS
1503 RIVERA ST
KEY WEST, FL 33040
—

.,, r ~

~..

PROOF OF SERVICE

I certify that on this date I mailed a copy of the Uniform Child Support Order

dated 9—(f.—c)L~ to the parties last known address(es) above, by ordinary mail.

Date: ~1—
~-~ ~ ~-~~t--
Family Court Services
 STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

April 20, 2010
Plaintiff-Appellee, APPROVED FOR
PUBLICATION
June 8, 2010
9:20 A.M.
V No. 290218
Oakland Circuit Court
SELESA ARROSIEUR LIKINE, LC No. 2008-220669-FH

Defendant-Appellant.

Before: FITZGERALD, P.J., and CAVANAGH and DAvIs, JJ.

PER CURIAM.

Defendant appeals as of right her jury Conviction of failing to pay child support in
violation ofMCL 750.165, for which she was sentenced to probation for one year. We affirm.

Following a divorce in June of 2003, defendant was ordered to pay Child support to her
ex-husband, Elive Likine, who was awarded physical custody oftheir three minor children. The
child support initially was $54 a month, but eventually was raised to $181 a month. Apparently
in March or May of 2005, Elive sought an increase in child support payments from defendant.
Elive was prompted to seek the increase in child support after he learned that defendant had
purchased a house worth about $500,000 by securing two mortgages in her name; one for $2,000
a month, and one for $1,000 a month. She had also purchased a new vehicle.

After hearings were held on the matter, the Friend ofthe Court recommended that income
of $5,000 a month be imputed to defendant consistent with her standard of living, and that her
child support obligation be increased to $1,131 a month, retroactively effective as of June 1,
2005. The circuit court adopted that recommendation after holding its own hearing. Defendants
request for reconsideration was denied. Thus, by order entered August 23, 2006, defendant was
obligated to pay $1,131 a month in child support as ofJune 1, 2005. Defendant then applied for
delayed leave to appeal in this Court, and leave was denied for failure to persuade the Court of
the need for immediate appellate review. Likine v Likine, unpublished order of the Court of
Appeals, entered March 14, 2008 (Docket No. 280148).
Defendants payment history was very sporadic. In 2006, she paid nothing. In 2007, she

C,
paid a total of$488.85 for the year—$381.21 in February, $20 in June, and $87.64 in December.
-1- APPENDIX
Through March of 2008, defendant paid a total of $100. The amount ofarrearage, as ofFebruary
29, 2008, was $40,182.71. In March of 2008, felony charges were filed against defendant for
failure to pay child support as ordered between February of2005 and March of2008 in violation
of MCL 750.165. She stood mute at her arraignment on May 19, 2008, and a plea ofnot guilty
was entered on her behalf.

On September 29, 2008, the prosecution filed a motion in limine seeking to prevent
defendant from offering any evidence pertaining to her alleged inability to pay the ordered child
support. The prosecution argued that, as this Court held in People v Adams, 262 Mich App 89;
683 NW2d 729 (2004), the failure to pay child support in violation of MCL 750.165 is a strict
liability offense; thus, evidence of an alleged inability to pay is immaterial and irrelevant. The
trial court agreed and granted the motion in limine, holding that inability to pay is not a defense.
Something should have been raised earlier for a modification, but it wasnt. A jury trial began
on November 14, 2008, and defendant was convicted as charged.

On November 25, 2008, defendant filed a motion for relief from an unconstitutional
statute and for reconsideration of the order granting the prosecutions motion in limine
precluding her from asserting as a defense the inability to pay. Defendant primarily argued that
MCL 750.165 is unconstitutional because, as a strict liability offense, it does not require
defendant to have a morally culpable mental state regarding non-payment ofchild support. The
motion was denied. On December 22, 2008, defendant was sentenced to probation for one year.
On February 2, 2009, defendant filed this appeal. On March 16, 2009, defendant filed with the
trial court a motion for new trial, primarily arguing that her rights under Michigans due process
clause, as interpreted by City of Port Huron v Jenkinson, 77 Mich 414; 43 NW 923 (1889), were
violated because she was not allowed to present as a defense her inability to pay child support.
Relying on Adams, 262 Mich App at 99-100, which made it clear that inability to pay is not a
defense to this strict liability offense, the trial court denied the motion.

On appeal, defendant first argues that she is entitled to a new trial because her rights
under Michigans due process clause were denied by the trial courts order prohibiting her from
presenting as a defense her inability to pay the ordered child support. We disagree.

This Court reviews de novo constitutional questions of law. People v Keller, 479 Mich
467, 473-474; 739 NW2d 505 (2007). A trial courts decisions to grant a motion in limine and to
deny a motion for new trial are reviewed for an abuse of discretion. People v Blackston, 481
Mich 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 courts decision falls outside the principled range
of outcomes. Blackston, 481 Mich at 460.

Defendant argues that, in accordance with our Supreme Courts decision in Jenkinson, 77
Mich at 419-420, the Michigan Constitution forbids the interpretation of MCL 750.165 as a
statute which prevents the presentation of an inability to pay defense, thus criminalizing an
involuntary omission. In Jenkinson, the impoverished defendant was prosecuted for failing to
comply with a local ordinance that imposed a duty upon property owners and occupants to
construct, keep and maintain good and sufficient sidewalks along all streets and avenues in
front of or adjacent to such real estate; and upon failure to do so, such person, after due notice,
shall be liable to prosecution. . . . Jenkinson, 77 Mich at 417. The Jenkinson Court found that
the ordinance was not only void, but unconstitutional on the ground that: No legislative or

-2-
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 make his non-performance of such duty a crime, for
which he may be punished by both fine and imprisonment. Id. at 419. Defendants reliance on
Jenkinson is misplaced.

Defendant claims that MCL 750.165 is unconstitutional because, just as in Jenkinson, the
State imposed upon her the duty of paying child support in the amount of $1,131 a month when
it was impossible for her to perform that duty in light of her poverty and, further, she was
prevented from presenting such a defense to this strict liability offense. But, unlike the
defendant in Jenkinson, defendant was prosecuted for failing to comply with a court order that
was entered after a judicial determination was made that defendant had the financial means to
comply with the court order, i.e., the duty imposed upon defendant was adjudged possible for her
to perform.

Defendant was a party to several civil proceedings involving the modification ofher child
support obligation which afforded her ample opportunity to present evidence of her ability or
inability to pay an increased amount of child support. At those proceedings evidence was
adduced that, while defendant was paying $181 a month in support of her three minor children,
she purchased a house worth about $500,000 by securing two mortgages in her name that
obligated her to pay $3,000 a month. She also purchased a brand new vehicle. Thereafter,
defendant was adjudged, in accordance with the evidence of her standard ofliving, to be capable
of paying child support in the amount of $1,131 a month for her three minor children. Thus,
unlike the defendant in Jenkinson, the State did not impose upon her a duty that was impossible
for her to perform. And defendants ineffective assistance of counsel claim premised on her
attorneys failure to bring Jenkinson to the trial courts attention and to raise a claim under the
Michigan Constitution is without merit. See People v Mack, 265 Mich App 122, 130; 695
NW2d 342 (2005).

Defendants argument is actually an impermissible collateral attack on the underlying

support order. Pursuant to MCL 600.1021, the family division of circuit court has sole and
exclusive jurisdiction over cases of divorce and ancillary matters, including those matters set
forth in the support and parenting time enforcement act, MCL 552.601 to 5 52.650. Under MCL
552.16(1), the court which enters a judgment ofdivorce may enter the orders it considers just and
proper concerning the care, custody, and, as set forth in the support and parenting time
enforcement act, MCL 552.605, the support of minor children. Under MCL 5 52.605, the court
that orders the payment of child support must generally order child support in an amount
determined by application of the child support formula, unless the court specifically finds that its
application would be unjust or inappropriate. [A] support order that is part ofa judgment or is
an order in a domestic relations matter is a judgment on and after the date the support amount is
due . . with the full force, effect, and attributes of a judgment of this state . . . . MCL
.

552.603(2). Pursuant to MCL 552.1224, the tribunal of this state that issues a support order
consistent with this states law has continuing, exclusive jurisdiction over a child support order
if the parties and children at issue remain residents of this state. Accordingly, with regard to
domestic relations actions, MCR 3.205(C) provides:
(1) Each provision of a prior order remains in effect until the provision is
superseded, changed, or terminated by a subsequent order.

-3-
I

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

Here, defendant was prosecuted for the criminal offense of violating MCL 750.165 which
states, in pertinent part:

(1) If the court orders an individual to pay support for the individuals
former or current spouse, or for a child of the individual, and the individual does
not pay the support in the amount or at the time stated in the order, the individual
is guilty of a felony punishable by imprisonment for not more than 4 years or by a
fine of not more than $2,000.00, or both.
(2) This section does not apply unless the individual ordered to pay
support appeared in, or received notice by personal service of, the action in which
the support order was issued.

Defendant argues that she should have been permitted to present the defense of inability to pay
during her criminal trial. However, such a defense merely attempts to challenge the amount of
the support ordered in the civil proceeding by a court which has sole, exclusive, and continuing
jurisdiction 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 occurs
wherever 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 NW2d 44 (1995). Thus, defendants attempt to
challenge the child support order in her criminal trial by claiming an inability to pay the amount
ordered was properly denied and did not constitute an abuse of discretion. As simply stated in
Adams, 262 Mich App at 96, [t]he Michigan nonsupport statutes generally reflect the rule that
the offense presupposes the ability to pay.
Defendant also argues that her rights to due process under the federal and state
constitutions are offended by the statutes characterization as a strict liability offense for which
inability to pay is not a defense. See Adams, 262 Mich App at 99-100. She claims that her
failure to pay the child support as ordered was not a voluntary act because it was completely
impossible for her to pay, i.e., the actus reus component of the crime was lacking. This
argument, too, fails. As our Supreme Court held in People v Monaco, 474 Mich 48, 56-58; 710
NW2d 46 (2006), felony failure to pay child support is not a continuing crime, it is complete at
the time that the individual fails to pay the ordered amount at the ordered time. That is, the actus
reus is the failure to pay the support as ordered. As discussed above, defendant was afforded
numerous opportunities in the civil proceedings to establish her inability to pay the ordered
amount ofchild support. Those civil proceedings were the proper forum, and that was the proper
time, to adjudicate such a claim. Accordingly, defendant was not denied due process on the
ground that, because the offense imposes strict liability, she was prevented from proving that her
failure to pay child support in compliance with the court order was involuntary.

Further, the order that increased defendants child support obligation was entered on
August 23, 2006, and was given retroactive effect to June 1, 2005. Defendants motion for
reconsideration was denied. Nevertheless, in 2006, defendant paid no child support. In 2007,
she paid a total of $488.85 in child support. In 2008, through March, she paid $100. The

-4-
S.

charges of felony nonsupport were not filed until March of 2008. During the extended period of
time between the entry of the child support order at issue and the filing of the criminal charge, it
does not appear from the record evidence that defendant sought again to have the support order
modified. And it does not appear, for example, that she filed a motion in the circuit court, under
MCL 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 the
ability to pay the ordered child support, as well as any of her bona fide efforts to pay such
support, must be considered and adjudicated by the court that issued the support order.
However, defendant did not seek those, or any other, remedies before she was prosecuted under
MCL 750.165.

Defendant also seems to argue that she was denied her due process right to present a
defense because she was prohibited from arguing that it was impossible for her to comply with
her child support order. We disagree. Whether a defendants right to present a defense was
violated by the exclusion of evidence is a constitutional question subject to review de novo.
People v Kurr, 253 Mich App 317, 327; 654 NW2d 651(2002).

The right to present a defense is a fundamental element of due process, but it is not an
absolute right. People v Hayes, 421 Mich 271, 279; 364 NW2d 635 (1984). The right extends
only to relevant and admissible evidence. People v Hackett, 421 Mich 338, 354; 365 NW2d 120
(1984). Evidence is relevant if it has any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable than it would be without the
evidence. MRE 401. The elements ofthe crime offelony 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 ofthe 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. People v Monaco, 262 Mich App 596, 606; 686 NW2d 790
(2004), affd in part and revd in part on other grounds 474 Mich 48 (2006). Clearly, evidence of
the inability to pay was not relevant to any fact in issue. Therefore, the trial court did not abuse
its discretion by declining to admit the evidence, and defendants constitutional right to present a
defense 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 prosecutor improperly
attacked defense counsel during closing rebuttal argument. Because defendant did not object to
the prosecutors remarks at trial, this issue is unpreserved and our review is for plain error
affecting her substantial rights. See People v Brown, 279 Mich App 116, 134; 755 NW2d 664
(2008). [T]he test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial. People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). Error requiring
reversal will not be found if a curative instruction could have alleviated any prejudicial effect,
given that jurors are presumed to follow their instructions. People v Unger, 278 Mich App 210,
235; 749 NW2d 272 (2008).

Prosecutorial misconduct issues are decided on a case-by-case basis, and the reviewing
court must examine the record and evaluate a prosecutors remarks in context. People v Thomas,
260 Mich App 450, 454; 678 NW2d 631 (2004). The propriety of a prosecutors remarks
depends on all the facts of the case. People v Rodriguez, 251 Mich App 10, 30; 650 NW2d 96
(2002). A prosecutor may not personally attack defense counsel. People v McLaughlin, 258
Mich App 635, 646; 672 NW2d 860 (2003). The prosecutor may not suggest that defense

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.4

counsel is intentionally attempting to mislead the jury, but reversal is not required if the
prosecutors remarks are responsive to defense counsels arguments. People v Watson, 245
Mich App 572, 592-593; 629 NW2d 411(2001).

Here, in his closing argument, defense counsel emphasized facts that had no bearing on
the elements of the crime. In response, the prosecutor argued that defense counsels strategy was
to distract the jury from the evidence. The prosecutors remarks were an appropriate response to
defense counsels argument and not a personal attack on defense counsel. Thus, there was no
plain error. Moreover, a timely objection could have cured any perceived prejudice. Therefore,
reversal is not required.

Affirmed.

Is! E. Thomas Fitzgerald

Is! Mark J. Cavanagh
Is! Alton T. Davis

-6-
 Court of Appeals, State of Michigan ~.. ~..Y

~ ~I
~
Alton T ~Davis
People of MI v Scott Bennett Harris Presiding Judge

Docket No. 297182 William C. Whitbeck

LC No. 08-056761-FH Patrick M. Meter

Judges

The Court orders that the delayed application for leave to appeal is DENIED for lack of
merit in the grounds presented.

Presiding Judge

ATHES~~ A true copy entered and certified by Sandra Schultz Mengel, Chief Clerk, on

APPENDIX ~
JUN 4~OlO Ch~l!~~
 STATE OF MICHIGAN
IN THE SUPREME COURT

THE PEOPLE OF THE

STATE OF MICHIGAN, Supreme Court No. 141513
Plaintiff-Appellee Court of Appeals No. 297182
v Lower Court No. 08-056761-FH
Muskegon County Circuit Court
SCOTT BENNETT HARRIS
Defendant-Appellant. PROOF OF SERVICE

MUSKEGON COUNTY PROSECUTOR STATE APPELLATE DEFENDER OFFICE

Attorney for Plaintiff-Appellee Attorney for Defendant-Appellant
By: James L. Corbett By: Roif E. Berg (P26758)
Hall of Justice, Fifth Floor 101 N. Washington, 14th Floor
990 Terrace Street Lansing, MI 48913
Muskegon, Michigan 49442 (517) 334-6069
(231) 724-6435

Donella J. Veihl, ofthe 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 before

meon August 11, 2010.

Jami . Hooker, Notary Public

Muskegon County, Michigan
My Commission Expires: 03/30/12
Acting in Muskegon County, Michigan