Opinion
No. 349493
08-13-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MARIO MARIEU DUT, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Ingham Circuit Court
LC No. 18-000955-FH Before: MURRAY, C.J., and CAVANAGH and SWARTZLE, JJ. PER CURIAM.
Defendant appeals as of right his conviction of failure to pay child support, MCL 750.165(1). Defendant was convicted after a jury trial, and was sentenced as a second-offense habitual offender, MCL 769.10, to serve 365 days in jail and five years' probation. Defendant argues that his conviction should be reversed because insufficient evidence was submitted to show that he was personally served notice, and because he had a good-faith belief that he was meeting his child support obligations. We affirm. This appeal is being decided without oral argument under MCR 7.214(E)(1).
Defendant was charged with failing to pay child support to the mother of two of his children between the dates of April 1, 2010, and April 1, 2016. Defendant last had contact with the children's mother approximately 10 years before trial. Orders of filiation established defendant as the father of both children, and ordered monthly child support payments. In the most recent modification, defendant was to pay a total of $319 per month. At the time of trial, defendant was $32,537.93 in arrears on this child support obligation. Defendant had other child support obligations for three additional children with different mothers, and he testified that he was making payments to agencies in Washington, Wisconsin, and Michigan. Defendant testified that he did not specifically know which children or states were receiving the child support.
On appeal, defendant argues that his conviction should be reversed because no evidence was presented regarding notice by personal service, and the fact that he had knowledge of the case and orders does not mean that he had notice of the felony nonpayment of support action that had been commenced against him. Defendant also argues that he believed in good faith that he was meeting his child support obligations.
This Court reviews a defendant's challenge to the sufficiency of the evidence de novo. People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). "We view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the crime to have been proved beyond a reasonable doubt." Id. "[A] reviewing court 'must consider not whether there was any evidence to support the conviction but whether there was sufficient evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt.' " People v Wolfe, 440 Mich 508, 513-514; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992) (citation omitted).
This case arises from defendant's failure to pay child support from April 1, 2010, to April 1, 2016. The version of MCL 750.165 that was in effect until March 17, 2015, provided, in pertinent 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 $2,000.00, or both.This statute was amended by 2014 PA 377, effective March 17, 2015, replacing subsection (2) as follows:
(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.
(2) This section does not apply unless the court in which the support order was issued had personal jurisdiction over the individual ordered to pay support.
Defendant's argument is limited to the sufficiency of the evidence to support his conviction under the version of MCL 750.165 that was in effect until March 17, 2015, which includes the since-stricken appearance-or-personal-service requirement. Accordingly, we do not address the application of MCL 750.165 as amended by 2014 PA 377, except to note that defendant does not dispute that the court in which the support orders were entered lacked jurisdiction over him. --------
Applying the former version of the statute, this Court held that the elements of failing to pay child support were "(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 Herrick, 277 Mich App 255, 257; 744 NW2d 370 (2007) (quotation marks, citation, and emphasis omitted). There is no dispute that elements (1) and (3) are satisfied, as defendant was ordered to pay child support under two separate orders of filiation, defendant did not pay as ordered, and he was $32,765.93 in arrears. For this reason, defendant's focus is exclusively on the second element.
Defendant argues that his conviction should be reversed because the prosecution could not prove that he was personally served in the support action. The prosecution does not contest that defendant was not personally served. However, MCL 750.165(2) offers another option: defendant must have "appeared in or received notice by personal service of, the action in which the support order was issued in." (Emphasis added). "The overriding goal of statutory interpretation is to ascertain and give effect to the Legislature's intent." People v Flick, 487 Mich 1, 10; 790 NW2d 295 (2010). "The words of a statute provide the most reliable indicator of the Legislature's intent and should be interpreted on the basis of their ordinary meaning and the overall context in which they are used." Id. at 10-11. The use of the word "or" generally refers to a choice or alternative; the term is " 'used to connect words, phrases, or clauses representing alternatives.' " People v Williams, 288 Mich App 67, 75; 792 NW2d 384 (2010), aff'd 491 Mich 164 (2012), quoting Random House Webster's College Dictionary (1997) (defining "or"). Therefore, this element can be satisfied by defendant's appearance in the absence of personal service. This Court has defined "appearance" as "any act of a party acknowledging jurisdiction of a court or invoking court action on his behalf[.]" Deeb v Berri, 118 Mich App 556, 563-564; 325 NW2d 493 (1982). "Two requirements must be met to render an act adequate to support the inference that it is an appearance: (1) knowledge of the pending proceedings and (2) an intention to appear." Id. at 564.
There is sufficient evidence in the record for a jury to conclude that defendant appeared in the action against him. Defendant entered the Ingham County courthouse for proceedings related to his child support case, and was arrested five times on bench warrants related to nonpayment of support. He appeared before Friend of the Court (FOC) hearing referees for arraignment, and appeared at the FOC window with questions related to his case in 2006 and 2009. All of these actions indicate knowledge of the pending proceedings. With the possible exception of the arrests, these actions also indicate an intention to appear. Given these circumstances, the jury properly found that defendant's appearances in court satisfied the requirement of MCL 750.165(2). Viewing the evidence in the light most favorable to the prosecution, the jury had sufficient evidence to find beyond a reasonable doubt that defendant was guilty of failure to pay child support.
Defendant also argues that his conviction should be reversed because he had a good-faith belief that he was meeting his support obligations. However, this position is inconsistent with the statute's requirements. MCL 750.165 imposes strict liability for failure to pay child support. People v Likine, 492 Mich 367, 391; 823 NW2d 50 (2012). "[T]he . . . 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.' " Id. at 392 (second alteration and second ellipsis in original). A conviction of failure to pay child support stands on the three elements discussed in Herrick, which do not consider the intent of the defendant. See Herrick, 277 Mich App at 257.
Affirmed.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Brock A. Swartzle