The Michigan Court of Appeals is publishing People v. Westman (Case No. 243956; May 27, 2004). The court upheld the felony nonsupport law against an ex post facto challenge.
Judge Neff writes (excerpt):
Defendant appeals as of right from his guilty-plea conviction of felony failure to pay child support, MCL 750.165, and to being an habitual offender, third-offense, MCL 769.11.1 The trial court sentenced him to thirty-five to seventy-two months’ imprisonment. We affirm.
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Before November 3, 1999, the elements of felony failure to pay child support were (1) a court has ordered an individual to pay child support; (2) the individual refused or neglected to pay child support, and (3) the individual left the state of Michigan. People v Ditton, 78 Mich App 610, 612-614; 261 NW2d 182 (1977). Under the post-amendment version of MCL 750.165, evidence that an individual refused or neglected to pay child support and left the state, is no longer necessary to establish felony failure to pay child support. People v Adams, ___ Mich App ___; ___ NW2d ___ (Docket No. 251213, issued May 18, 2004). The amended statute provides:
(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. [MCL 750.165.]
Defendant was charged and convicted in August 2002, under the amended statute, and, accordingly, there was no showing that defendant left the state. Nonetheless, these circumstances evince no violation of the constitutional prohibition against ex post facto laws.
Defendant’s failure to pay child support began in 1993, but continued through 2002. His offense was a continuing offense that occurred after the effective date of the act’s amendment. Because defendant’s conduct began before but continued after the statute’s amendment, changes effected by the statute did not operate retroactively with respect to defendant. We concur with the holding of the California courts on this issue: “‘Where an offense is of a continuing nature, and the conduct continues after the enactment of a statute, that statute may be applied without violating the ex post facto prohibition.’” People v Grant, 20 Cal 4th 150, 159; 973 P2d 72 (1999), quoting People v Palacios, 56 Cal App 4th 252, 257; 65 Cal Rptr 2d 318 (1997).
The MCLA 750.165 has been selectively used throughout Michigan to bypass the affirmative defense(s) afforded to an individual within the proceedings of civil contempt. That rationale for the courts in this case defies reality, in a society where there are even affirmative defenses in a crime involving the death of an individual. Further in People v. Adams it states “To require the Prosecutor to produce evidence to counter a defense of inability to pay would be contrary to the clear reading of the statute. In addition, it would be overly burdensome on the Prosecutor to do so especially when the defendant could have simply sought to modify the original order before making himself vulnerable to criminal prosecution.” By the clear reading of the statute, it doesn’t matter if he sought to reduce the payments because he could still have been held for a conviction under the felony statute because it is so vague and is so selectively enforced.