PEOPLE v. LIKINE (2012)

Opinion

These three cases involve the felony of failure to pay court-ordered child support (felony nonsupport) under MCL 750.165 and the rule of People v. Adams,¹ which held that inability to pay is not a defense to this crime. We granted leave to consider the constitutionality of the Court of Appeals' ruling in Adams and now clarify that, while inability to pay is not a defense to felony nonsupport pursuant to MCL 750.165, Adams does not preclude criminal defendants from proffering the common-law defense of impossibility.

These cases require us to consider, for the first time, the nature of Michigan's felony-nonsupport statute and the proper defense to a nonsupport charge. We endorse the well-established common-law defense of impossibility as the proper defense to felony nonsupport. In doing so, we differ from the dissent both in terms of our temporal view and our sense of parents' financial priorities. Consistently with the Legislature's expressed intent in the child support statutes, we believe that to avoid conviction for felony nonsupport, parents should be required to have done everything possible to provide for their child and to have arranged their finances in a way that prioritized their parental responsibility so that the child does not become a public charge. Unlike the dissent, which would undermine the legislative choices that are reflected in the statutory child support framework, our view of parental responsibility and obligation leads us to recognize the impossibility defense. This defense differs from that advanced by the dissent because we provide guidance to the circuit courts regarding how the defense is to be adjudicated, and although a parent's ability to pay is one factor we consider, we also take other factors into account. Allowing a mere inability-to-pay defense as the dissent suggests would undermine Michigan's legislative system, which requires ability to pay to be considered in establishing the support order in the first instance, explicitly prohibits the retroactive modification of child support orders, and makes nonsupport a strict-liability criminal offense. Our view is consistent with the plain language of Michigan's nonsupport statute and gives as much meaning as possible to the Legislature's expressed intentions, as we are required to do by our Constitution. If Michigan has placed greater priority than other states on the issue of child support as reflected in its child support laws, we are, in recognizing this defense, simply permitting the Legislature to legislate as it sees fit, in accordance with its legislative directive and in accordance with our judicial role.

I. FACTS AND PROCEDURAL HISTORY

A. PEOPLE v. LIKINE, DOCKET NO. 141154

Defendant Selesa Arrosieur Likine (Likine) and Elive Likine (Elive) divorced in June 2003. The Family Division of the Oakland County Circuit Court (the family court) gave Elive physical custody of the parties' three children and ordered Likine to pay child support. The family court recognized Likine's “history of fairly serious mental health conditions” and her diagnosis of depressive-type schizoaffective disorder. The family court initially ordered $54 a month in child support and then raised it to $181 a month in August 2004.

Beginning in 2005, Likine failed to comply with the order requiring her to pay child support.² Elive sought an increase in child support payments that same year. The Friend of the Court (FOC) referee recommended that Likine's child support obligation be increased to $1,131 a month on the basis of the parties' testimony and evidence that she had secured two mortgages, listing income as $15,000 a month on the applications, to purchase a home worth $409,000.³ The referee imputed income of $5,000 a month to Likine,⁴ reasoning that this was the minimum income required to meet the “bare bones monthly expenses” Likine had reported.⁵ After a two day hearing de novo, the family court adopted the FOC referee's recommendation in an order dated August 30, 2006.

On September 28, 2006, the family court denied Likine's motion for reconsideration in a five-page written opinion, concluding that Likine's testimony was not truthful, that her tax returns did not accurately reflect her income, and that Likine had “misrepresented her income so many times that there is no way to adequately determine her income.” The family court recognized that Likine “does suffer from some form of mental illness,” but the evidence presented led the court to conclude that she was “working and earning an income” because she was “maintaining herself, including the payment of a substantial mortgage.” Although Likine's “actual income could not be determined due to her evasive testimony and numerous misrepresentations,” the family court found that the amount of income imputed was appropriate.⁶

On March 20, 2008, the Department of Attorney General, Child Support Division, charged Likine criminally with felony nonsupport between February 1, 2005, and March 11, 2008, in violation of MCL 750.165. On September 29, 2008, the prosecutor filed a motion in limine to bar Likine from offering or referring, directly or indirectly, to her ability or inability to pay court-ordered child support, including her employment status and claims that her actual income was less than the amounts used to calculate her support obligation. Citing Adams,⁷ the prosecutor argued that evidence of inability to pay is not a valid defense to the crime of felony nonsupport, a strict-liability crime.

At the motion hearing on October 8, 2008, Likine argued that the prosecutor was seeking to deprive her of any defense to the charge against her and that this violated her constitutional right to due process. She claimed that she had no source of income or assets from which to pay the court-ordered child support. Likine further testified that she had been unemployed since September 2005, when she was released from a month-long hospitalization; that she was disabled with schizoaffective disorder, for which she had received periodic treatment, including medication; that her sole source of income was supplemental security income (SSI) amounting to $637 a month; that she had tried to hold a part-time temporary job but was physically and mentally unable to do so; that the bank foreclosed on and “short sold” her Rochester Hills home in June 2007; and that although she had held two professional licenses, they were inactive or had lapsed and she was unable to use them because of her credit rating and her disability. According to Likine, she had been able to pay $181 a month in child support in 2004 because that amount was based on her actual income. Likine provided the circuit court with a copy of her social security earnings record covering 1985 through 2003, which showed no income from 1994 through 2002.⁸ On October 21, 2008, the circuit court issued a written order granting the prosecutor's motion in limine.

At the jury trial in November 2008, the prosecutor presented the testimony of Elive and an FOC child-support-account specialist. The specialist testified that the child support order entered when Likine and Elive divorced required Likine to pay $35 a month for one child and $48 a month for two. The amount was subsequently increased, in August 2004, to $181 a month. For the period subject to the felony-nonsupport charge, February 2005 through March 2008, the amount of support ordered was initially $181 a month, but in June 2005 it was raised to $1,131 a month. The specialist testified that Likine had made very sporadic payments, including payments in only 12 of the 37 months charged, in amounts ranging from $100 to $281.

Elive also testified that Likine's child support payments were “very sporadic,” stating that she only paid child support “when the Friend of the Court threatened her or they sent her a note.” Elive testified that Likine had told him that he “would suffer with those kids” by himself and that Likine had said she would “not [pay] any child support” because “women don't pay child support.” He stated that he sought an increase in the child support amount in June 2005 after Likine purchased a half-million-dollar home in Rochester Hills.⁹

Likine testified on her own behalf. She stated that she was able to pay both the $54 a month that was initially ordered and the $181 monthly amount, but when the support amount was increased to $1,131, she was unable to make the payment. She acknowledged that she had purchased the home in Rochester Hills, but stated that the house “was put in [her] name” and that her boyfriend had paid for it. In closing, defense counsel argued that the amount of Likine's child support had effectively been “made up” by using imputed income as the basis for calculation and that “the child support should not have been in the amount of $1,131.” Counsel further argued that Likine was “being torn apart by factors she [had] no control over.”

The jury found Likine guilty as charged. Likine moved for relief from the judgment or for reconsideration, arguing that MCL 750.165 should be declared unconstitutional or, alternatively, that the order granting the prosecutor's motion in limine should be reconsidered and vacated so that Likine could offer a defense to the charge. The circuit court denied the motion “for the reasons first stated upon the record October 8, 2008 and that this matter is a strict liability offense.” Subsequently, the circuit court sentenced Likine to probation for one year with 48 days' credit and stated that the family court would determine the amount of restitution.

In February 2009, Likine filed a claim of appeal, and in March 2009, through appellate counsel, she also moved for a new trial in the circuit court. Likine argued that her rights under the Michigan Constitution's Due Process Clause were violated when she was not allowed to present evidence of her inability to pay as a defense to the criminal charge of felony nonsupport.¹⁰ The circuit court denied the motion on the record, citing Adams¹¹ for the rule that inability to pay is not a defense to this strict-liability offense.

The Court of Appeals affirmed, holding, in part, that Likine's “argument is actually an impermissible collateral attack on the underlying support order.”¹² The Court of Appeals concluded that defendant's right to due process had not been violated because felony nonsupport is a strict-liability offense, so evidence of her inability to pay was not relevant.

We granted leave, with People v. Parks and People v. Harris, to consider whether the rule of Adams, which held that inability to pay is not a defense to the charge of felony nonsupport under MCL 750.165, is constitutional.¹³

A. PEOPLE v. PARKS, DOCKET NO. 141181

Defendant Michael Joseph Parks (Parks) and his wife Diane Parks (Diane) divorced in September 2000. Defendant, an orthopedic surgeon, was a rural physician with a solo practice who sometimes worked as a contract physician. The Ingham family court initially ordered defendant to pay $230 a week in child support for the parties' three children. On August 19, 2003, the family court modified Parks's support obligation to $761 a week. That obligation was in effect throughout the criminal proceeding in this case.

Parks was charged criminally with violating MCL 750.165 for failing to pay child support from October 1, 2006, through July 15, 2008. At a bench trial in January 2009, Diane testified that Parks had made no support payments during the period charged. She testified that during that time, Parks had made several requests for a reevaluation of his child support obligation and that there had been a hearing before the family court at which Parks was represented by counsel. After this hearing, the family court denied Parks's request because he had failed to provide any documentation to substantiate his claim that he could not meet his child support obligation.

An Ingham County FOC officer testified at the trial. The officer testified that Parks had made no child support payments from October 2006 to July 2008 and that the FOC had tried to enforce Parks's child support obligation by initiating show-cause hearings and obtaining income-withholding orders and bench warrants for Parks's arrest. As of the date of the trial, none of these attempts had been successful. Parks's child support arrearage amounted to more than $262,000.

Parks testified that the FOC improperly imputed to him the income of an urban physician in a group practice, whereas his income as a rural sole practitioner was “considerably lower.”¹⁴ Also, Parks testified that probation conditions imposed by a federal court hampered his ability to practice medicine¹⁵ and thereby impaired his ability to pay child support. Parks further testified that he was currently disabled,¹⁶ was receiving disability benefits from the federal government, and had declared bankruptcy in 2005. Parks testified that he “believe[d]” that he had made child support payments between October 2006 and July 2008. When asked to provide documentation, Parks produced a report from the child support enforcement system that he evidently thought would reflect that he had made payments, but the court examined the report and noted that it showed “all zeroes,” indicating that he had paid no child support in or after October 2006.

At the close of trial, the prosecutor argued that each of the three elements necessary to convict Parks of violating MCL 750.165 had been established: that Parks was ordered to pay child support, that he was either personally served or appeared in the underlying matter, and that he had failed to pay the ordered amount. Defense counsel argued that Parks “did all that he could to comply” with his child support obligation and was “doing what he could to reestablish his practice.” Defense counsel urged that Parks's child support payments be “adjusted.” The circuit judge explained that he did not adjust child support obligations because, as a circuit judge presiding over criminal matters, he was not authorized to adjust support orders, which are subject to the authority of the family court. The circuit judge found defendant guilty as charged, stating that it was “obvious” that considering “the number of times Mr. Parks has refused to pay over the years, including the period of time in question here, ․ Mr. Parks has no real desire to comply with what the law says he is supposed to do” and that “Mr. Parks simply does not want to pay.”

At sentencing, Diane stated that it was “very difficult to raise three kids without support,” that all three children “have been working since the age of 16 to help support the house and themselves,” and that she was taking only half of her multiple sclerosis medicine “to cut back in whatever ways” she could. Alexis Parks, defendant's daughter, also made a statement, asking that Parks be incarcerated because “the only way he's ever paid is when he was in jail.” Parks was ordered to pay restitution in the amount of $234,444.83 and sentenced to 5 years' probation and one year in jail with credit for 205 days served, which would be suspended if he paid a portion of the restitution.

Parks appealed by right, and on April 20, 2010, the Court of Appeals affirmed in an unpublished opinion per curiam.¹⁷ The Court of Appeals noted that Parks had not raised the defense of inability to pay in circuit court and so reviewed the claim as an unpreserved constitutional issue. The Court of Appeals relied on Adams to conclude that Parks could be found guilty of violating MCL 750.165 with no finding of intent or knowledge because the statute imposes strict liability and inability to pay is not a defense to a charge of felony nonsupport.

We granted leave, with Likine and Harris, again to consider whether the rule of Adams is constitutional.¹⁸

C. PEOPLE v. HARRIS, DOCKET NO. 141513

Defendant Scott Bennett Harris (Harris) and Lavonne Harris (Lavonne), divorced in November 2003. The Muskegon family court initially ordered Harris to pay $139 a month for his two children, and the amount was subsequently increased to $612 a month in 2006. Harris, who was living in Key West, Florida, was charged with felony nonsupport as a fourth-offense habitual offender for failing to pay his court-ordered child support between April 4, 2003, and May 7, 2008. Harris's child support arrearage amounted to nearly $13,000.

On September 25, 2008, Harris pleaded guilty as charged in exchange for a fairly complex sentencing agreement pursuant to People v. Cobbs.¹⁹ The Muskegon Circuit Court agreed that sentencing would be delayed by two months (until December 8, 2008) and that if Harris paid $3,000 of the child support arrearage, sentencing would be delayed until May 2009. If Harris paid another $5,000 on the arrearage by May 2009, the circuit court agreed that it would not sentence him to any type of incarceration, although he would still be subject to the imposition of probation, fines, costs, and tethering. The circuit court stressed, however, that Harris would “need to stay current” in his support obligations in addition to paying the arrearage. After Harris agreed to the conditions, the circuit court accepted his guilty plea and permitted Harris to return to his home in Florida.

On December 8, 2008, Harris appeared before the circuit court for sentencing. At that time Harris had paid $1,500, roughly the amount of his ongoing child support payments, but he acknowledged that he had not paid any amount of the arrearage. His counsel argued that if Harris were permitted to remain free, Harris “would be able to raise a substantial sum.” Defense counsel stated that defendant “want[ed] to try to comply,” but that he was indigent, as evidenced by the court's having appointed counsel for him in the criminal proceeding. On allocution, defendant stated only that he had a back problem of 10 years' duration, and his lawyer added that Harris had “heart problems.”

Lavonne asserted in her victim impact statement that Harris had told her on several occasions that she would “never see another dime from him regarding [the] two children.” She recalled that defendant refused to provide any assistance with uncovered medical expenses when their son broke his hand and indicated that she could not afford to buy their son winter clothes because she could not “get any help from their father.” She acknowledged that Harris had a back problem but was unaware that he had any heart problem. She stated: “He has an addiction problem to alcohol and drugs, is what he has. He has a problem with working.” Harris was sentenced as a fourth-offense habitual offender to a prison term of 15 months to 15 years. The circuit court ordered costs and restitution of $12,781.39, the amount of the child support arrearage.

Through appointed counsel from the State Appellate Defender Office (SADO), Harris moved to withdraw his plea or for resentencing. At the hearing on August 10, 2009, the circuit court heard extensive argument, including Harris's claim that had he been permitted to do so, he would have testified that he had tried to generate income but could not because of his health conditions. The circuit court denied the motion in an opinion and order dated August 21, 2009. The circuit court stated that it was bound by Adams to apply MCL 750.165 as a strict-liability statute and that Harris also could not claim error based on the court's failure to consider his alleged indigency because Harris had agreed to the sentence agreement.²⁰

On June 4, 2010, the Court of Appeals denied Harris's delayed application for leave to appeal for lack of merit.²¹ Harris, still represented by SADO, sought leave to appeal in this Court, challenging the constitutionality of MCL 750.165.

We granted leave in this case, with Likine and Parks, to consider whether the rule of Adams is constitutional.²² In addition, we granted leave in this case to consider whether the circuit court abused its discretion when it denied Harris's postsentencing motion to withdraw his plea and whether the circuit court erred when it adopted the family court's determination of the child-support-arrearage amount as the restitution to be imposed in this criminal case or whether Harris had waived that issue.

II. STANDARD OF REVIEW

These cases involve interpretation of a statute, a question of law that we review de novo on appeal.²³ The primary goal of statutory interpretation is to give effect to the intent of the Legislature.²⁴ The first step is to review the language of the statute itself.²⁵ If the statute is unambiguous on its face, the Legislature will be presumed to have intended the meaning expressed, and judicial construction is neither required nor permissible.²⁶ We review de novo constitutional issues.²⁷

III. ANALYSIS

All defendants argue that the circuit courts denied their constitutional right to due process when they refused to consider evidence of defendants' “inability to pay” as a defense to the charge of felony nonsupport. Only Likine explicitly equated her alleged inability to pay with a claim of impossibility.

A. MCL 750.165

To evaluate defendants' arguments, we must first consider the relevant statute, MCL 750.165.²⁸ The operative language of the statute provides that “[i]f the court orders an individual to pay support ․ for a child of the individual, and the individual does not pay the support ․, the individual is guilty of a felony․”²⁹

B. PEOPLE v. ADAMS AND MCL 750.165

In People v. Adams, the defendant father, charged with felony nonsupport under MCL 750.165, sought to introduce evidence of his inability to pay as a defense to the charge. The circuit court permitted the defense, but the Court of Appeals reversed, holding that inability to pay is not a defense to felony nonsupport. To reach this conclusion, the Court of Appeals compared the current statutory language of MCL 750.165 with the statute's language before its amendment in 1999.³⁰ Before this amendment, the statute provided in relevant part:

Where in any decree of divorce ․ the court shall order [a] husband to pay any amount to the clerk or friend of the court for the support of any wife or former wife ․ or father to pay any amount to the clerk or friend of the court for the support of [a] minor child or children, and said husband or father shall refuse or neglect to pay such amount at the time stated in such order and shall leave the state of Michigan, said husband or father shall be guilty of a felony ․ [31]

Comparing the two versions of the statute, the Court of Appeals concluded that the current version of MCL 750.165, which did not have the language “shall refuse or neglect,” contains no fault or intent element. Noting that the omission of language expressly requiring fault as an element did not end the court's inquiry, the Adams Court focused on whether the Legislature intended to require fault as a predicate to guilt.³² Examining caselaw recognizing inability to pay as a defense to a charge under the earlier version of the statute,³³ the Court noted that the cases had “implied a criminal intent requirement into the statute.”³⁴ The Adams Court rejected the applicability of that analysis to the language of the current statute:

[I]n the current amended statute, in addition to deleting gender-specific references such as “husband” and “father” and the requirement that the person leave the state, the Legislature removed any reference to the individual's refusal or neglect to pay the support. Given the Legislature's deletion of language relating to refusal or neglect, there is no longer wording in the statute that could be used to support a construction that would include a mens rea requirement․ Thus, an intent requirement cannot be implied in the absence of any language supporting such an interpretation.[35]

Adams recognized that the current version of the statute imposes criminal liability regardless of intent with the goal of ensuring protection of the public welfare, stating: “Criminal nonsupport is the type of crime that generally falls within the class of crimes for which no criminal intent is necessary. A law that requires a parent to support his child benefits not only the child but also the well-being of the community at large.”³⁶

We agree with the Court of Appeals' conclusion in Adams that MCL 750.165 imposes strict liability. Although strict-liability offenses are disfavored, there is no question that the Legislature may create such offenses without running afoul of constitutional concerns.³⁷ Consistently with Adams, we have stated that strict-liability crimes “regulate[ ] conduct under the state's police power to promote the social good, a course the Legislature may elect without requiring mens rea,”³⁸ which is a particular state of mind that the prosecution must prove the defendant had in order to secure a conviction.³⁹ In addition, we have recognized that “courts will infer an element of criminal intent when an offense is silent regarding mens rea unless the statute contains an express or implied indication that the legislative body intended that strict criminal liability be imposed.”⁴⁰ We agree with the holding in Adams that the revised language of MCL 750.165 evinces a clear legislative intent to dispense with the mens rea element and impose strict liability by eliminating the language regarding a defendant's “refus[al] or neglect” to pay the ordered support, and instead providing simply that if “the individual does not pay the support ․ the individual is guilty of a felony.”

C. COMMON–LAW DEFENSE OF IMPOSSIBILITY

Concluding that MCL 750.165 is a strict-liability offense, however, does not end our analysis. The Adams Court only addressed the defense of inability to pay and did not address the common-law defense of impossibility, which if proven negates the actus reus of a crime.⁴¹ Generally, the commission of a crime requires both an actus reus and a mens rea.⁴² Though a strict-liability crime includes no mens rea element, the actus reus, or wrongful act, remains an element of the crime .⁴³ Specifically, a strict-liability offense requires the prosecution to prove beyond a reasonable doubt that the defendant committed the prohibited act, regardless of the defendant's intent and regardless of what the defendant actually knew or did not know.⁴⁴

A defendant might defend against a strict-liability crime by submitting proofs either that the act never occurred or that the defendant was not the wrongdoer. Additionally, at common law, a defendant could admit that he committed the act, but defend on the basis that the act was committed involuntarily.⁴⁵ Examples of involuntary acts that, if proved, provide a defense against the actus reus element of a crime include reflexive actions,⁴⁶ spasms, seizures or convulsions,⁴⁷ and bodily movements occurring while the actor is unconscious or asleep.⁴⁸ The common thread running through these “involuntariness” defenses is that the act does not occur under the defendant's control, and thus the defendant was powerless to prevent its occurrence and cannot be held criminally liable for the act.⁴⁹

MCL 750.165, however, criminalizes an omission, or a failure to act. At common law, an established defense to a crime of omission is impossibility.⁵⁰ Like its counterpart, involuntariness, the centuries-old defense of impossibility derives from the English common-law courts.⁵¹ For example, in 1843, the Queen's Bench considered a defendant's liability for failing to repair a portion of highway that had been rendered impassable when the surrounding sea encroached. The Chief Judge stated:

Both the road which the defendant is charged with liability to repair, and the land over which it passes, are washed away by the sea. To restore the road, as [the defendant] is required to do, he must create a part of the earth anew ․ here all the material of which a road could be made have been swept away by the act of God. Under those circumstances can the defendant be liable for not repairing the road? We want an authority for such a proposition; and none has been found.[52]

The Queen's Bench, then, recognized impossibility of performance as a defense to a charge involving an omission.⁵³ Like the involuntariness defense to crimes that penalize an affirmative act, the defense of impossibility to crimes that penalize an act of omission must be based on something outside the defendant's control:

Obviously, the involuntariness of omissions cannot be explained in precisely the same way as for actions. It would be odd indeed to talk of a reflex or convulsive omission. Nonetheless, even for omissions the criminal law requires that [a defendant] must be responsible for her behavior before she commits the actus reus of a crime. [The defendant's] omission is involuntary, and her responsibility for the actus reus is negated, when she fails to discharge a duty to intervene because it was impossible for her to do so.[54]

Stated differently, a defendant cannot be held criminally liable for failing to perform an act that was impossible for the defendant to perform.⁵⁵ When it is genuinely impossible for a defendant to discharge a duty imposed by law, the defendant's failure is excused.⁵⁶

Michigan common law, which has its roots in the English common law, has also long recognized impossibility as a defense to crimes of omission. In Port Huron v. Jenkinson,⁵⁷ this Court considered a city ordinance that criminalized a property owner's failure to repair sidewalks running adjacent to his or her property if the city requested the property owner to make the repair. Jenkinson recognized impossibility as a defense, holding that the defendant could not be criminally convicted of failing to perform a legally required duty when it was impossible for him to do so. The Court in Jenkinson stated:

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 a duty a crime, for which he may be punished by both fine and imprisonment. It needs no argument to convince any court or citizen, where law prevails, that this cannot be done; and yet such is the effect of the provisions of the statute and by-law under consideration. It will readily be seen that a tenant occupying a house and lot in the city of Port Huron, and so poor and indigent as to receive support from his charitable neighbors, if required by the city authorities to build or repair a sidewalk along the street in front of the premises he occupies, and fails to comply with such request, such omission becomes criminal; and, upon conviction of the offense, he may be fined and imprisoned. It is hardly necessary to say these two sections of the statute are unconstitutional and void, and that the provisions are of no force or effect. They are obnoxious to our Constitution and laws; and the two sections of the statute are a disgrace to the legislation of the State.[58]

The Court specifically held that a legislative body cannot require a person to perform an act that “is impossible for him to perform” and then impose criminal penalties for the failure to perform that act.⁵⁹ Jenkinson, then, recognized common-law impossibility as a defense to a criminal omission.

D. IMPOSSIBILITY AS A DEFENSE TO FELONY NONSUPPORT

The language of MCL 750.165 provides no indication that the Legislature intended to abrogate common-law impossibility as a defense to felony nonsupport.⁶⁰ Consistently with the Michigan Constitution and absent a clear legislative intent to abolish the common law, we thus presume that the common-law defense of impossibility remains available if supported by sufficient evidence.⁶¹ Accordingly, we hold that genuine impossibility is a defense to the charge of felony nonsupport under MCL 750.165.⁶² Just as a defendant cannot be held criminally liable for committing an act that he or she was powerless to prevent, so, too, a defendant cannot be held criminally liable for failing to perform an act that was genuinely impossible for the defendant to perform.

Although English and Michigan common law both recognize that impossibility may be raised as a defense to a crime of omission, neither provides any particularized guidance regarding the quantum of evidence necessary to establish impossibility. These common-law cases establish impossibility as a defense in cases in which a defendant was genuinely unable to perform a legally required act or, as in the English case involving restoration of a road washed away by the sea, when compliance was physically impossible. However, “it is somewhat surprising to find that if impossibility in the modern context is examined more closely, its position is confused and its function unclear.”⁶³

In considering the parameters of the impossibility defense, we find instructive the United States Supreme Court's decision in Bearden v. Georgia,⁶⁴ which considered the constitutionality of revoking a criminal defendant's probation for failure to pay a fine. In Bearden, the petitioner was ordered to pay a $500 fine and $250 in restitution as conditions of his probation.⁶⁵ He was then laid off from his job and, despite repeated efforts, was unable to find other work. When the petitioner's remaining payments were late, the state revoked his probation because he had not paid the balance. The record from the probation-revocation hearing indicated that the petitioner had been unable to find employment and had no assets or income.⁶⁶ The Court held that if a fine is determined to be the appropriate penalty for a crime, the state cannot “imprison a person solely because he lacked the resources to pay it.”⁶⁷ Rather, there must be “evidence and findings that the defendant was somehow responsible for the failure․”⁶⁸ Bearden directed sentencing courts to consider the reasons for nonpayment and carefully “inquire into the reasons for the failure to pay”:⁶⁹

This distinction, based on the reasons for nonpayment, 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. Similarly, a probationer's failure to make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution may reflect an insufficient concern for paying the debt he owes to society for his crime. In such a situation, the State is likewise justified in revoking probation and using imprisonment as an appropriate penalty for the offense.[70]

Bearden indicated that “if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically․”⁷¹ The Court held that a “lack of fault provides a ‘substantial reason which justifies or mitigates the violation’ and makes revocation inappropriate.”⁷²

We recognize that the Court in Bearden dealt with probation revocation for nonpayment of a fine, as opposed to the felony nonsupport at issue in this case, but we are guided by the Court's reasoning, which inquires into and considers an individual's efforts to make a legally required payment. Thus, we hold that to establish an impossibility defense for felony nonsupport, a defendant must show that he or she acted in good faith and made all reasonable efforts to comply with the family court order, but could not do so through no fault of his or her own. In our view, “sufficient bona fide efforts to seek employment or borrow money in order to pay” certainly are expected, but standing alone will not necessarily establish an impossibility defense to a charge under MCL 750.165. Instead, defendants charged with felony nonsupport must make all reasonable efforts, and use all resources at their disposal, to comply with their support obligations. For the payment of child support to be truly impossible, a defendant must explore and eliminate all the reasonably possible, lawful avenues of obtaining the revenue required to comply with the support order. Defendants must not only establish that they cannot pay, but that theirs are among the exceptional cases in which it was not reasonably possible to obtain the resources to pay. A defendant's failure to undertake those efforts reflects “an insufficient concern for paying the debt”⁷³ one owes to one's child, which arises from the individual's responsibility as a parent.

To determine whether a defendant has established impossibility in the context of a felony nonsupport case, we provide, for illustrative purposes only, a nonexhaustive list of factors for courts to consider.⁷⁴ These should include whether the defendant has diligently sought employment; whether the defendant can secure additional employment, such as a second job; whether the defendant has investments that can be liquidated; whether the defendant has received substantial gifts or an inheritance; whether the defendant owns a home that can be refinanced; whether the defendant has assets that can be sold or used as loan collateral; whether the defendant prioritized the payment of child support over the purchase of nonessential, luxury, or otherwise extravagant items; and whether the defendant has taken reasonable precautions to guard against financial misfortune and has arranged his or her financial affairs with future contingencies in mind, in accordance with one's parental responsibility to one's child.⁷⁵ The existence of unexplored possibilities for generating income for payment of the court-ordered support suggests that a defendant has not raised a true impossibility defense, but merely an assertion of inability to pay. A defendant's failure to explore every reasonably possible avenue in order to pay his or her support obligation not only reflects “an insufficient concern for paying the debt he owes to society,”⁷⁶ it also reflects an insufficient concern for the child. In those instances, the defendant may not invoke the shield of the impossibility defense.

E. PROCEDURAL ASPECTS OF THE IMPOSSIBILITY DEFENSE TO FELONY NONSUPPORT

Having explored the substantive parameters of the impossibility defense, we turn to procedural considerations governing its invocation. To be entitled to a jury instruction on this affirmative defense,⁷⁷ a defendant must present prima facie evidence from which the finder of fact could conclude that it was genuinely impossible for the defendant to pay the support, as described in part III(D).⁷⁸ If, however, no reasonable trier of fact could conclude from the facts adduced that payment of the support was truly impossible, then the defendant is not entitled to the instruction.⁷⁹ Assuming a defendant has made this threshold showing and is entitled to an instruction, then the defendant may be exonerated if the trier of fact finds that the defendant has established⁸⁰ by a preponderance of the evidence⁸¹ that it was genuinely impossible for him or her to comply with the family court order for each and every violation within the relevant charging period.⁸²

Clearly, the record of the defendant's conduct and responses in the family court proceedings is relevant to determining the possibility of compliance with the support order and is relevant to evaluating the defendant's good-faith efforts. Consequently, and in addition to any other relevant evidence, both the defense and the prosecution may rely on the evidentiary record from the family court proceedings. For example, evidence that the defendant was not truthful in the family court proceeding or that the defendant hid assets, failed to provide accurate documentation of the resources and assets at his or her disposal, was voluntarily unemployed or underemployed, failed to exhaust all reasonable and lawful means of generating the income necessary to satisfy the support obligation, or failed to seek timely modification of the family court order when it became evident that it could not be performed may, singly or in combination, defeat any claim that it was impossible for the defendant to comply with the court order.

Given our description of how evidence from the family court proceedings may be used, we obviously disagree with the Attorney General's contention that the family court's determination of what amount a defendant is capable of paying precludes a defendant from asserting impossibility as a defense to felony nonsupport in the criminal proceeding. Although the criminal nonsupport charge flows from a defendant's noncompliance with the family court's support order, the criminal proceeding on a charge of felony nonsupport is separate and distinct from the family court proceeding. Therefore, the outcome of the family court proceeding simply does not preclude a defendant in a criminal proceeding for felony nonsupport from asserting impossibility as a defense.⁸³ By the same logic, the criminal proceeding does not provide a defendant with the opportunity to attack the legitimacy or accuracy of the family court's support order or the validity of its underlying findings.⁸⁴ In the family court proceeding, the amount of support ordered is determined under the “preponderance of the evidence” standard. Neither the support order nor evidence of a defendant's failure to pay introduced in family court proceedings, singly or together, establishes proof beyond a reasonable doubt that a defendant is guilty of felony nonsupport. Rather, because a charge of felony nonsupport is addressed only in a criminal proceeding, it invokes the full panoply of constitutional protections that inhere in any criminal prosecution, which are simply inapplicable in civil family court proceedings.

In a criminal proceeding, the defendant has a constitutional right to have the prosecution prove his or her guilt beyond a reasonable doubt and to have a jury determine his or her guilt or innocence, as well as the merits of the impossibility defense, if applicable, in accordance with that standard of proof. These protections are fundamental to a defendant's right to a jury trial. As the Supreme Court stated in Stevenson v. United States:

[S]o long as there is some evidence upon the subject [of whether the defendant was guilty of manslaughter rather than murder], the proper weight to be given it is for the jury to determine. If there were any evidence which tended to show such a state of facts as might [support the defense], it then became a proper question for the jury to say whether the evidence were true․ The evidence might appear to the court to be simply overwhelming to show [the defendant's guilt], and yet, so long as there was some evidence relevant to the issue of [the defense], the credibility and force of such evidence must be for the jury, and cannot be matter of law for the decision of the court.[[85]

Indeed, “the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies”⁸⁶ is equally fundamental in a prosecution for the strict-liability offense of felony nonsupport once the defendant has crossed the high evidentiary threshold required to present the affirmative defense of impossibility to the jury.

We emphasize that nothing in our opinion today undermines the validity of the family court proceeding or its role in setting the amount of child support. We simply wish to make clear that different procedural safeguards exist in family court proceedings than in the criminal proceedings that may flow from the family court's orders and that courts must be cognizant of these distinctions.

1. APPLICATION TO LIKINE

In this case, Likine raised and preserved the impossibility defense in the circuit court. Accordingly, we review this preserved claim of constitutional error to determine whether the party benefitting from the error has established that it is harmless beyond a reasonable doubt.⁸⁷

The evidence that Likine sought to introduce, which the circuit court did not allow, relates to her mental illness, incapacitation, and disability. This evidence—if submitted to, and believed by, a jury—might establish impossibility. Under the circumstances, and on the current undeveloped state of the record, we cannot conclude that the error was harmless beyond a reasonable doubt. We therefore reverse the judgment of the Court of Appeals in this case and remand Likine to the circuit court for a new trial.

2. APPLICATION TO PARKS

Parks neither asserted nor sought to assert an impossibility defense at his criminal trial for felony nonsupport. He asserted for the first time in the Court of Appeals that his inability to pay was a defense to the charge of felony nonsupport, and although he cited caselaw recognizing impossibility as a common-law defense, he failed to clearly assert an impossibility defense at his trial. Accordingly, we review this unpreserved claim of constitutional error for plain error affecting a substantial right.⁸⁸ Under the facts in this case, we cannot say that plain error occurred because Parks never claimed that it was impossible to comply with his child support obligation. Therefore, we affirm the judgment of the Court of Appeals in Parks.

3. APPLICATION TO HARRIS

Harris entered an unconditional guilty plea to the charge of felony nonsupport under MCL 750.165. An unconditional guilty plea that is knowing and intelligent waives claims of error on appeal, even claims of constitutional dimension.⁸⁹ He therefore failed to preserve the constitutional issue presented in this case, and he actually admitted the factual basis for his guilt. Accordingly, we conclude that the circuit court did not abuse its discretion by refusing to allow Harris to withdraw his plea, and he is therefore not entitled to relief.⁹⁰

IV. RESPONSE TO THE DISSENT

The dissent endorses an “inability to pay” defense to felony nonsupport and suggests that the impossibility defense we have recognized is “problematic” and “newly minted.”⁹¹ In our judgment, these assertions are belied by our reliance on caselaw dating to the seventeenth century recognizing this well-established common-law defense.⁹² Notably, although the dissent apparently dislikes this defense, it does not contest that impossibility is, in fact, a defense to MCL 750.165.⁹³ Indeed, it is beyond dispute that impossibility is a centuries-old common-law defense—recognized in Michigan at least since Jenkinson—that attacks the actus reus element of a crime of omission.⁹⁴ It is also beyond dispute that MCL 750.165 is a crime of omission and that the Legislature has not abrogated this defense.⁹⁵

Additionally, the dissent agrees that MCL 750.165 is a strict-liability offense. Yet the dissent would return the law of Michigan to the precise state that existed before the Legislature amended MCL 750.165 and made felony nonsupport a strict-liability offense, contrary to the Legislature's clear intent .⁹⁶ To further support its position, the dissent relies on out-of-state authorities, which it asserts demonstrate that Michigan is the only state that does not recognize inability to pay as a defense to a charge of felony nonsupport. In support of this assertion, the dissent provides a 31/212-page-long footnote directly replicated from Likine's brief on appeal.⁹⁷ However, the state statutes and caselaw cited in the footnote are inapposite because they involve statutes that are materially different from Michigan's felony-nonsupport statute.⁹⁸ More importantly, a closer examination makes plain that the dissent's claim that we are the only state not to recognize inability to pay as a defense to nonsupport is simply not so. For example, the footnote cites a 1924 case from Virginia in which the court indeed referred to the defendant's “absolute inability” to contribute, but then concluded that it was clearly established “that his mental and physical condition has made it impossible for him to support his wife and children ever since his first conviction․”⁹⁹ In our view, this sounds remarkably like the impossibility defense we recognize here.¹⁰⁰ Indeed, contrary to the dissent's overstatement, only 10 states explicitly provide that inability to pay is an affirmative defense to nonsupport.¹⁰¹ Moreover, under Michigan law, the family court considers parents' ability to pay when it sets the child support obligation in the first place.¹⁰²

After this flawed legal analysis, the dissent posits what appears to be its primary objection to this opinion: its claim that our impossibility standard “offends traditional notions of fairness and common sense.”¹⁰³ In our judgment, it is the dissent's view, not ours, that “offends traditional notions of fairness and common sense.” Requiring parents to provide support for their children and organize their financial affairs in such a way as to be able to do so is wholly consistent with all traditional notions of fairness and common sense of which we are aware, in particular the traditional notions that parents are expected to support their children and make their children's well-being the central priority of their lives.¹⁰⁴ Although the dissent criticizes our approach and complains that “only the rarest of persons” will be able to demonstrate impossibility,¹⁰⁵ that is exactly the point. We intend that, consistently with MCL 750.165, a parent who fails to pay court-ordered child support must meet an exacting standard to demonstrate a genuine impossibility defense.¹⁰⁶

While we have gone to great lengths to articulate the standard a defendant must meet to demonstrate a genuine impossibility defense, the dissent protests and then proceeds to describe a vague inability-to-pay defense that is described in terms that echo our impossibility defense.¹⁰⁷ However, the dissent's inability-to-pay defense lacks both the structure and breadth of view that we provide. Apparently, in the dissent's view, the relevant consideration is whether an individual charged with felony nonsupport has any money in his or her pocket on the day he or she is haled into court.¹⁰⁸ However, the dissent's rule would permit parents who deliberately refuse to pay child support to shirk their responsibilities to their children and manipulate the criminal justice system, with the result that taxpaying citizens will bear the responsibility of supporting these children, rather than the parent, who ought to be primarily responsible.¹⁰⁹ The dissent protests that under our impossibility standard, a person could be found guilty of felony nonsupport “because, although he or she is unable to pay, it might not have been utterly impossible to pay had he or she known how to manage money better.”¹¹⁰ Again, this is exactly the point. We can find nothing unfair about a defense that does not excuse parents from their inherent obligation to support their child simply because they are “unable to pay” child support on a particular day when, over the course of the child's life, they have made irresponsible, selfish financial decisions that reflect a lack of concern for their child's well-being and when, as a result of these decisions, the child is likely to become a public charge.

Unlike the dissent, our view of the question of parental responsibility and obligation leads us to endorse the impossibility defense to a charge of felony nonsupport. Our impossibility defense differs from the dissent's approach because we provide guidance regarding how the defense is to be adjudicated at the circuit court level, and although a parent's ability to pay is one factor that we consider, we also consider other factors. In sum, the ability-to-pay inquiry is subsumed within the impossibility defense. Our interpretation is consistent with centuries-old common law and with the plain language of MCL 750.165, Michigan's nonsupport statute.

V. CONCLUSION

We conclude that People v. Adams correctly held that MCL 750.165 imposes strict liability because it does not require a mens rea, and that evidence of a defendant's inability to pay, without more, is not a valid defense to a charge of felony nonsupport. However, we hold that a defendant charged with felony nonsupport may, in exceptional circumstances, on making the requisite evidentiary showing, establish impossibility as a defense to a charge of felony nonsupport.

In summary, having concluded that Likine preserved this claim of constitutional error and that the prosecution has not shown that the error was harmless, we reverse her conviction and remand the case to the circuit court for further proceedings. Because we conclude that defendant Parks is not entitled to relief, we affirm the judgment of the Court of Appeals in that case. Lastly, Harris entered an unconditional guilty plea, which affirmatively waived the defense at issue, and he is therefore not entitled to relief.

The majority advises that its view of parental responsibility and obligations leads it to adopt a new defense to the charge of felony nonsupport, the defense of impossibility to pay. I share the majority's view of the responsibilities and obligations of parents. But there is an important difference between us. It lies in our respective interpretations of what defense MCL 750.165 allows a parent facing imprisonment for failing to pay child or spousal support. For reasons I will describe, I believe that the interests of children, as well as of all other members of society, are best served by providing a more traditional defense. I propose the almost universally accepted defense of inability to pay.

At their essence, these cases are about the basic judicial task of ensuring that government functions within the scope of our state and federal constitutions. Our sister states have been conscientious in undertaking this task. Forty-nine of them and the District of Columbia provide the defense of inability to pay or consider a defendant's ability to pay as an element of the crime of felony nonsupport. Conventional wisdom suggests that the Michigan Supreme Court should adopt the same defense when it considers the question for the first time. It has not done so.

Instead, the majority rejects the national norm and bucks the trend. It concludes that inability to pay does not constitute a defense to felony nonsupport. The defendant must demonstrate impossibility to pay. Moreover, notwithstanding the majority's protestations to the contrary, the inability-to-pay defense is not subsumed within this defense of impossibility to pay. The majority will indeed consider inability to pay. But should any fault whatsoever be shown on the part of the accused, the majority's impossibility-to-pay defense will entirely disregard the strongest evidence of inability to pay. I believe that this standard, at once unique and manifestly harsh, will prove counterproductive. I also believe it is unconstitutional.

Like the majority, I wish to be faithful to the intent of the Legislature in interpreting MCL 750.165. In doing so, I am deeply concerned that we will reinstitute the wisely long-abandoned institution of debtor's prisons. The majority appears to lack this concern.

Furthermore, the majority's “analysis” supporting its impossibility-to-pay defense is flawed from the first page. In crafting it, the majority repeatedly bows to what it declares is the Legislature's expressed intent. But no expressed justification for the majority's position is to be found anywhere in any statute. For all of these reasons, I respectfully dissent.

I. ANALYSIS

A. LEGAL BACKGROUND

These cases involve the failure of three defendants to satisfy court-ordered child support obligations. MCL 750.165 criminalizes such conduct.¹ It provides, in relevant part:

(1) If the court orders an individual to pay support for the individual's former or current spouse, or for a child of the individual, and the individual does not pay the support in the amount or at the time stated in the order, the individual is guilty of a felony punishable by imprisonment for not more than 4 years or by a fine of not more than $2,000.00, or both.

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

* * *

(4) The court may suspend the sentence of an individual convicted under this section if the individual files with the court a bond in the amount and with the sureties the court requires. At a minimum, the bond must be conditioned on the individual's compliance with the support order. If the court suspends a sentence under this subsection and the individual does not comply with the support order or another condition on the bond, the court may order the individual to appear and show cause why the court should not impose the sentence and enforce the bond. After the hearing, the court may enforce the bond or impose the sentence, or both, or may permit the filing of a new bond and again suspend the sentence.

Although I agree with the majority that MCL 750.165 sets forth a strict liability offense, persons accused of felony nonsupport still have the constitutionally guaranteed right, both state and federal, to present a defense.² As the United States Supreme Court has recognized, this guarantee rests on a bedrock constitutional principle: “Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense.”³ However, the majority severely narrows an accused's constitutionally protected “complete defense” to charges of felony nonsupport. It requires a showing of impossibility to pay. It is this conclusion to which I take exception.

Thirty-five years ago in People v. Ditton,⁴ the Court of Appeals considered an earlier version of MCL 750.165.⁵ The defendant argued that his inability to pay barred his prosecution under the statute. He further argued that the trial court had erred by failing to instruct the jury that it must first find that he was able to pay the support ordered. Only then could it find that he had neglected to pay it. The Court of Appeals agreed. It concluded that MCL 750.165 did not expressly provide for the defense of inability to pay, but “[o]ther Michigan criminal nonsupport statutes [made] it necessary to show defendant's ability to pay” as a precursor to obtaining a conviction.⁶

The Court also noted that in contempt proceedings, a party charged with paying child support must be allowed to explain why the support order had not been obeyed and that only “ ‘the wilful, the recalcitrant, the obdurate or deceitful’ ․ are not excused from their legal obligations.”⁷ Therefore, the Court concluded, the trial court erred when it ruled that the defendant's ability to pay was irrelevant.⁸

The version of MCL 750.165 now in effect was enacted in 1999⁹ and is similar to the earlier version. The current version still criminalizes failure to comply with support obligations and specifically indicates the maximum penalty for violations of the statute. The legislative history indicates that the purpose of the revisions was to enact gender-neutral language and provide courts with authority to suspend a sentence under certain circumstances. The Senate Fiscal Agency's analysis stated that the revisions

would delete and reenact, with gender-neutral language, a provision of the Penal Code making refusal to pay a support order a felony. Under the bill, it would be a felony, punishable by up to four years' imprisonment, a maximum fine of $2,000, or both, for a person subject to a court order for spousal or child support, to fail to pay the support in the amount or at the time stated in the order. The felony provision would not apply unless the person ordered to pay support appeared in the action in which the support order was issued, or received notice of that action by personal service. (The proposed penalty is the same as that established in the law for a felony for which a penalty is not otherwise specified.)

The court could suspend the sentence of a person convicted under the bill if he or she filed with the court a bond in the amount and with the sureties the court required. At a minimum, the bond would have to be conditioned on the person's compliance with the support order. If the person did not comply with the support order or another condition of the bond, the court could order the person to appear and show cause why the court should not impose the sentence and enforce the bond. After the hearing, the court could enforce the bond and/or impose the sentence, or could permit the filing of a new bond and again suspend the sentence.[10]

When the Legislature enacted the current version of MCL 750.165, Ditton had permitted defendants to raise an inability-to-pay defense to felony nonsupport charges for the preceding 22 years. Yet that defense was not addressed by 1999 PA 152.¹¹ The Legislature is presumed to know the law, including decisions of our courts.¹² Its acquiescence to Ditton is consistent with the intent to continue to allow an accused to raise an inability-to-pay defense.¹³

Notwithstanding that fact, in People v. Adams,¹⁴ the Court of Appeals strayed from Ditton and held that the 1999 amendments of MCL 750.165 affirmatively precluded a defendant from raising an inability-to-pay defense. Adams opined that the revised statute does not allow that defense because felony nonsupport is a strict liability offense.¹⁵ It further reasoned that the defense would be inconsistent with the provision of MCL 750 .165 that authorizes suspension of a sentence if the defendant files a bond conditioned on compliance.¹⁶

Adams held that defendants are effectively precluded from raising a defense of any kind to felony-nonsupport charges. I believe it was wrongly decided and should be explicitly overruled. It is unclear what the majority holds with respect to Adams. When it holds that defendants may present an impossibility-to-pay defense, it suggests that Adams was wrongly decided. But it agrees with Adams's holding that, if an individual does not pay court-ordered support, he or she is automatically guilty of a felony under MCL 750.165. Adams should be unequivocally overruled.¹⁷

B. THE MAJORITY'S IMPOSSIBILITY–TO–PAY DEFENSE

I find the impossibility-to-pay defense adopted by the majority problematic for several reasons. First, the term “impossibility” has a distinct meaning in criminal law. Courts have distinguished two categories of impossibility in attempt crimes: factual and legal. Factual impossibility exists when a defendant intended to perpetrate a certain crime but failed to commit it because of factual circumstances that were unknown or beyond his or her control .¹⁸

Legal impossibility can be broken down into two subcategories: pure legal impossibility and hybrid legal impossibility. Pure legal impossibility exists when an actor engages in conduct that he or she believes is prohibited by law, but it is not.¹⁹ Hybrid legal impossibility exists when a defendant's goal is to commit an illegal act, but it is impossible to do so because of a factual mistake regarding the legal status of some factor relevant to the intended conduct.²⁰ “ ‘This version of impossibility is a “hybrid” because, as the definition implies ․, [the defendant's] impossibility claim includes both a legal and a factual aspect․’ “²¹

The cases involved here are not attempt crimes. Moreover, neither factual nor legal impossibility is involved. I discuss the terms merely to show that their use has a nuanced meaning in criminal law. They could easily be confused with the majority's newly minted “impossibility-to-pay” defense in the context of felony nonsupport charges.²²

A second problem with the majority's analysis is that it is at best marginally supported by one Michigan case decided 123 years ago—Port Huron v. Jenkinson.²³ Jenkinson dealt with a city ordinance that criminalized a property owner's failure to repair a sidewalk adjacent to his property. The Court opined that “[n]o 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 a duty a crime․”²⁴ Thus, the Court recognized that the defendant could successfully defend himself by arguing that it was impossible to comply with the ordinance. However, the Court also stated that

[i]t will readily be seen that a tenant occupying a house and lot in the city of Port Huron, and so poor and indigent as to receive support from his charitable neighbors, if required by the city authorities to build or repair a sidewalk along the street in front of the premises he occupies, and fails to comply with such request, such omission becomes criminal; and, upon conviction of the offense, he may be fined and imprisoned. It is hardly necessary to say these two sections of the statute are unconstitutional and void, and that the provisions are of no force or effect.[25]

Thus, Jenkinson recognized that when a defendant is “so poor and indigent” as to be unable to comply with the ordinance, he or she may not be criminally punished. Accordingly, even though Jenkinson used the word “impossible” once, it implicitly considered the defendant's inability to pay.

It is apparent that the majority overstates Jenkinson's use of “impossible.” Jenkinson intended a much broader use of the word, one akin to inability to pay. If it had been shown that the defendant in Jenkinson could have used the “support from his charitable neighbors”²⁶ to build a sidewalk, he would not have satisfied an impossibility defense. He could not have demonstrated that it was impossible for him to pay. But the Jenkinson Court held the ordinance unconstitutional notwithstanding the defendant's failure to apply this charitable support toward his sidewalk construction obligation. Therefore, the majority's impossibility-to-pay standard fails the constitutional test established by Jenkinson. If the defendant in that case could not have satisfied the majority's impossibility-to-pay defense, then that defense is unconstitutional.²⁷

Third, the majority ignores our Court of Appeals' decision in Ditton. Ditton held that inability to pay is a defense that must be considered for MCL 750.165 to pass constitutional muster.²⁸ The majority fails to explain why Ditton would not render its impossibility-to-pay defense unconstitutional.

C. THE INABILITY–TO–PAY DEFENSE

1. MICHIGAN

The proper defense to felony nonsupport charges, as set forth in Ditton, consists of proving that a defendant is unable to pay the court-ordered support.²⁹ Ability-to-pay determinations are commonplace in the legal system. For example, in People v. Jackson,³⁰ we considered whether a trial court may require a defendant to pay for a court-appointed attorney pursuant to MCL 769.1k without first determining the defendant's ability to pay. We unanimously held that notwithstanding the lack of statutory language providing for an assessment of a defendant's ability to pay, that determination must be made when payment is required.³¹ We further held that “once an ability-to-pay assessment is triggered, the court must consider whether the defendant remains indigent and whether repayment would cause manifest hardship.”³²

Ability-to-pay assessments are also relevant in the context of criminal restitution payments. In People v. Music,³³ this Court considered whether, in imposing restitution or costs as a part of sentence or probation, a defendant's ability to pay must be considered. The Court again unanimously held that if a defendant asserts the inability to pay restitution or costs, the court must inquire into the defendant's ability or lack of it.³⁴

Not only does caselaw suggest that a defendant's ability to pay must be considered when determining criminality or applying a penalty, but so do several statutes. MCL 750.161 criminalizes desertion or nonsupport of a spouse or children. It provides, in pertinent part:

A person who deserts and abandons his or her spouse or deserts and abandons his or her children under 17 years of age, without providing necessary and proper shelter, food, care, and clothing for them, and a person who being of sufficient ability fails, neglects, or refuses to provide necessary and proper shelter, food, care, and clothing for his or her spouse or his or her children under 17 years of age, is guilty of a felony․ [35]

Thus, a conviction under MCL 750.161 presupposes that the defendant has the ability to pay for proper shelter, food, care, and clothing for family members.

Similarly, MCL 750.168 provides that a person convicted of being “a disorderly person” is subject to varying degrees of punishment. MCL 750.167(1)(a) defines “disorderly person” as “[a] person of sufficient ability who refuses or neglects to support his or her family.”³⁶ This provision further reflects the Legislature's recognition that a defendant's ability to pay must be considered before imposing criminal punishment.

Ability-to-pay determinations also serve as the underpinning of spousal support awards, which, when violated, form the bases of criminal nonsupport charges. MCL 552.23(1) provides that in divorce and actions for separate maintenance, the court may also award spousal support “after considering the ability of either party to pay․”³⁷ This principle has been extended to child support awards.³⁸

2. THE UNITED STATES SUPREME COURT

The United States Supreme Court has also recognized that statutes that punish persons for nonpayment of debts without permitting them to present evidence of their inability to pay are repugnant to the Constitution. In Zablocki v. Redhail,³⁹ the Court struck down as unconstitutional a Wisconsin statute that prohibited men with outstanding child support obligations from marrying without first obtaining a court order granting permission. The plaintiff in that case could not obtain the requisite court order because he lacked the financial resources to meet his support obligations. The Court struck down the statute on both due process and equal protection grounds. Justice Stewart, concurring, noted that the “law makes no allowance for the truly indigent” and that “[t]o deny these people permission to marry penalizes them for failing to do that which they cannot do. Insofar as it applies to indigents, the state law is an irrational means of achieving these objectives of the State.”⁴⁰

Concurring in the Court's judgment, Justice Powell distinguished between “persons who are able to make the required support payments but simply wish to shirk their moral and legal obligation” and those “without the means to comply with child-support obligations.”⁴¹ He opined that “[t]he vice inheres, not in the collection concept, but in the failure to make provision for those without the means to comply with child-support obligations.”⁴² Thus, he agreed with his colleagues that the Wisconsin statute was unconstitutional because it failed to provide for those unable, rather than merely unwilling, to pay the child support owed.⁴³

Likewise, in Bearden v. Georgia,⁴⁴ the United States Supreme Court considered whether the Fourteenth Amendment prohibits a state from revoking an indigent defendant's probation for failure to pay a fine and restitution. The Court held that “the trial court erred in automatically revoking probation because petitioner could not pay his fine, without determining that petitioner had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist.”⁴⁵ The Court opined that to revoke probation when the petitioner, through no fault his own, could not pay the fine violated due process because it was “contrary to the fundamental fairness required by the Fourteenth Amendment.”⁴⁶ The Court approvingly cited Justice Powell's Zablocki concurrence, which emphasized the distinction between “persons who shirk their moral and legal obligation to pay ․ from those wholly unable to pay.”⁴⁷

3. APPLICATION OF THE INABILITY–TO–PAY DEFENSE

In light of the aforementioned Michigan caselaw, Michigan statutes, and United States Supreme Court precedent, I would hold that inability to pay is the proper defense to a felony nonsupport charge. To use this defense, a defendant would have to show that he or she has made all reasonable and good-faith efforts to comply with the support order, but could not.⁴⁸ In considering a defendant's inability to pay, courts should carefully examine the defendant's financial situation and determine whether the defendant has made sufficient bona fide efforts to comply.⁴⁹ However, courts must distinguish between those who willfully shirk their moral and legal obligation to pay and those who are simply unable to do so.⁵⁰ As our Court of Appeals explained in Ditton:

“A [parent] who can but will not take care of his [or her] child ought not be coddled by the law. But oppression ought not be practiced in the name of law and justice․

“The accused delinquent parent may have been ever so willing and anxious to perform his [or her] natural duty and to comply with the terms of the civil judgment but was wholly unable to do so.” [51]

To be clear, I share the majority's concern that recalcitrant parents must be held accountable. Accordingly, the inability-to-pay defense, like the impossibility-to-pay defense set forth by the majority, would not apply to parents who can but choose not to take care of their children. A willful failure to pay is not an excuse for noncompliance with a support order.

D. THE MAJORITY'S IMPOSSIBILITY–TO–PAY DEFENSE LACKS SUPPORT

With today's groundbreaking opinion, Michigan becomes the only state that does not allow a defendant's inability to pay to constitute a complete defense to a felony nonsupport charge.⁵² The majority has created an exceedingly limited defense to felony nonsupport charges not recognized by any legislature or any other court in the country.⁵³ Not a single state recognizes impossibility as the proper defense to felony nonsupport charges. The majority's decision risks being criticized as a chilling example of judicial activism.

E. THE MAJORITY'S IMPOSSIBILITY–TO–PAY DEFENSE IS UNFAIR

My deep concern about the majority's holding stems not only from the fact that it adopts an unprecedented standard without support, but also from that standard's potential for deleterious effects. More pointedly, I fear a return to an era of debtors' prisons in which indigent individuals are imprisoned simply because they cannot meet their financial obligations.⁵⁴ The majority refuses to acknowledge that, unfortunate as it is, many people experience periods in their lives when they are insolvent. This fact does not automatically render them uncaring, deadbeat parents. And it should not necessarily render them criminals. Poverty is not a criminal offense, and our federal and state constitutions guarantee the impoverished the equal protection of the laws.⁵⁵ The majority's severe narrowing of the available defense to a nonsupport charge does not adequately safeguard these principles.

In its effort to differentiate its impossibility-to-pay defense from an inability-to-pay defense, the majority paints a picture in which the only two options are at the extreme ends of the spectrum. On one end is the impossibility-to-pay defense, which is, as the majority admits, nearly impossible to meet. On the other is the inability-to-pay defense, which the majority mischaracterizes as cover for a simple refusal to pay. The majority mistakenly casts the inability-to-pay defense as one that gives carte blanche to cold-hearted parents who refuse to support their children, contrary to all moral decency. The reality is quite otherwise. As discussed earlier, in applying this defense, a court typically considers evidence of ability to pay and refusals to pay by those who could pay or could raise the money they owe.

The majority also identifies the most extreme example of a parent who would find it impossible to comply with a support obligation but is completely blameless. It posterizes this hypothetical person as the quintessential example of someone who would satisfy its new impossibility-to-pay defense. In doing so, the majority sends a clear signal to our lower courts: our impossibility-to-pay defense exists, but only the rarest of persons will qualify for it.⁵⁶ In essence, the majority has created a nearly-impossible-to-satisfy defense. The practical effect of this rule is to press a heavy thumb on the prosecutor's side of the delicate scales of justice.⁵⁷

In an effort to provide comprehensive guidance, the majority creates an impossibility standard that offends traditional notions of fairness and common sense. For example, it does not take into consideration that a defendant must have sufficient minimum resources to feed, clothe, and shelter himself or herself while satisfying a support obligation. The penniless person should not be imprisoned for lacking the capacity to prioritize his or her finances or to arrange his or her financial affairs with future contingencies in mind. Yet the majority's impossibility-to-pay defense would include that person. That person would be imprisoned because, although he or she is unable to pay, it might not have been utterly impossible to pay had he or she known how to manage money better.⁵⁸ That person would be imprisoned because, unable to pay, he or she had failed to “seek timely modification of the family court order when it became evident that it could not be performed․”⁵⁹ The majority offers no explanation why inability to pay, coupled with failure to seek modification of the order, should constitute grounds for imprisonment.

Furthermore, the majority seems not to consider the difficulty in producing sufficient evidence to mount a cognizable impossibility-to-pay defense. Proving an inability to pay, let alone satisfying the majority's impossibility-to-pay defense, is a complex and daunting legal matter. As one scholar has astutely observed:

Proving inability to comply can be factually complex, implicating the economic circumstances of the obligor, his work history and potential, his available assets, and his own subsistence needs. To meet this burden, the alleged contemnor must at the very least present evidence of his or her employment (or lack thereof), wages, expenses, and assets.

However, gauging the ability to pay may be much more complicated than this, involving issues of good faith responsibility for other obligations, voluntariness of the obligor's unemployment or underemployment, and the availability of borrowed funds or assets owned by others to satisfy the obligor's debt. There may be legal as well as factual components to these issues. The complexity of these issues puts them beyond the understanding of most indigents, who will rarely be able to effectively respond to the petitioner's case in these areas, much less present a case in chief of their own. Even the simplest “inability to pay” argument requires articulating the defense, gathering and presenting documentary and other evidence, and responding to legally significant questions from the bench—tasks which are probably awesome and perhaps insuperable undertakings to the uninitiated layperson. This is particularly true where the layperson is indigent and poorly educated.

Adding to the obligor's burden is the potential that the court will hold his or her testimony concerning inability to pay to be insufficient evidence or lacking in credibility in the absence of documentary corroboration. Retention of the necessary records among indigents is rare, particularly given the widespread instability in their employment, housing, and other aspects of their lives.[60]

Permitting only an impossibility-to-pay defense rather than an inability-to-pay defense heightens the level of evidence needed to refute a nonsupport charge. In a practical sense, it erects a barrier that will prove overwhelming to many who are not willful, recalcitrant, obdurate, or deceitful.

F. THE MAJORITY'S IMPOSSIBILITY–TO–PAY DEFENSE IS UNCONSTITUTIONAL

Finally, the majority supports its impossibility-to-pay defense by suggesting that because family courts consider ability to pay when setting support obligations, by definition a support obligor is able to pay. There is much to criticize in this logic. It must be remembered that, because family court proceedings are civil in nature, they do not require the same high level of due process as criminal proceedings. They lack certain fundamental constitutional safeguards, including the right to trial by jury, the beyond-a-reasonable-doubt standard of proof, the right to counsel, and the right to effective assistance of counsel.⁶¹ By allowing into evidence a family court's judgment regarding a defendant's ability to pay, the majority would allow evidence that has not been subjected to the constitutional rigors of a criminal trial. Doing so would threaten due process protections by undercutting the presumption of innocence and shifting onto defendants the burden of disproving the actus reus of the crime.⁶²

In civil proceedings to set child support, trial courts employ a preponderance-of-the-evidence standard to make factual findings regarding a parent's ability to pay.⁶³ These ability-to-pay determinations include findings of imputed income based on an individual's potential earning capacity.⁶⁴ Ability-to-pay determinations are thus inherently linked to the actus reus of a subsequent criminal nonsupport charge.

But it is axiomatic that all elements of a criminal charge must be proved beyond a reasonable doubt.⁶⁵ The preponderance-of-the-evidence standard used in civil courts affords less protection than the constitutionally guaranteed beyond-a-reasonable-doubt standard of proof used in criminal courts.⁶⁶ By importing into a criminal proceeding a civil court's ability-to-pay determination and shifting the burden of proof to the defendant to show impossibility to pay, the majority endangers due process. Ability-to-pay determinations made in a civil court cannot constitutionally be used as the basis for establishing that a defendant was able to pay in a criminal case. Doing so diminishes the prosecution's burden of proof to a standard below the constitutional threshold.⁶⁷

Furthermore, the majority injects principles of statutory interpretation as support for its impossibility-to-pay defense. It repeats throughout its opinion phrases such as “[c]onsistent[ ] with the Legislature's expressed intent in the child support statutes”⁶⁸ and its unsupported claim that my analysis would “undermine Michigan's legislative system․”⁶⁹ It similarly relies on its assertion that its interpretation is “consistent with the plain language of [the] statute․”⁷⁰ Frequent repetition of these concepts does not turn the majority's assertions into facts. To be sure, an “interpretation” of a statute's plain language can nonetheless lead to an activist result.⁷¹ As previously stated, there is no statutory language in MCL 750.165, express or implied, or in the child support statutes, that gives rise to an impossibility-to-pay defense.⁷²

More importantly, the Legislature's intent with respect to the constitutionally mandated defense to a charge of felony nonsupport is extraneous. It is undisputed that some defense must be made available for MCL 750.165 to survive constitutional scrutiny. However, it is not the prerogative of the Legislature to set that constitutional floor. Rather, it is this Court's duty to determine what defense, at a minimum, must be made available in order for the statute to be constitutionally applied. By allowing the purported legislative intent to dictate its outcome, the majority abdicates its duty as guardian of our citizens' constitutional protections.

II. CONCLUSION

In sum, the majority's new impossibility-to-pay defense creates a nearly insurmountable barrier to successfully defending felony nonsupport charges. As Michigan has long recognized, it is only “the willful, the recalcitrant, the obdurate or deceitful” who are imprisoned for failing to meet their financial obligations.⁷³ In light of the majority's holding, we can now add to that list those who are unable to pay and cannot obtain the resources to pay. I believe that the majority's impossibility-to-pay defense will prove grossly unjust in its application and that it is fundamentally unconstitutional. Because a defendant's inability to pay is the proper defense to a felony nonsupport charge, I respectfully dissent.

MARY BETH KELLY, J.