887 N.W.2d 817
Mich. Ct. App.
2016

PEOPLE v IANNUCCI

Docket No. 323604

Court of Appeals of Michigan

January 19, 2016

314 MICH APP 542

Submittеd January 5, 2016, at Detroit. Approved for publication March 8, 2016, at 9:05 a.m.

Yann Iannucci and his former wife had two children. Defendant‘s consent judgment of divorce included an оrder for child support, and there was no dispute that from August 2011 to January 2013 defendant failed to comply with the order. Defendant was convicted in the Macomb Circuit Court of failure to pay child support. He was sentenced to 60 months of probation with five days to be served in jail. The court, Matthew Switalski, J., ordered defendant to pay $21,951 in unрaid child support. Defendant appealed.

The Court of Appeals held:

Defendant‘s challenge in a criminal proceeding to the amount of child support he was ordered to pay after a civil proceeding involving the matter was an impermissible collateral attack on the validity of the underlying support order. In this case, defendant did not contest his conviction on appeal. Rather, defendant challenged the amount of child support he was ordered to pay; according to defеndant, his veteran‘s disability benefits should not have been included in his income, which was used to calculate the amount of child support he was obligated to pay. Defеndant was not denied his right to due process by the Court‘s failure to consider defendant‘s argument because defendant had more than one opportunity to present his arguments to the civil court. Defendant made only cursory reference to alleged improprieties in the civil court proceedings, none of which provided a legitimate reason for ignoring his impermissible collateral attack on the underlying support order.

Affirmed.

CHILD SUPPORT - FELONY NONSUPPORT - CHALLENGE TO AMOUNT OF CHILD SUPPORT - IMPERMISSIBLE COLLATERAL ATTACK.

A defendant engages in an impermissible collateral attack when he or she challenges a judgment in a manner other than by direct appeal; a defendant‘s challenge, in his or her appeal of a felony nonsuрport conviction, to the amount of child support he or she is obligated to pay--an amount determined in a civil proceeding--is an impermissible collatеral attack.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, R. Paul ‍‌‌​‌​​‌‌​​​‌‌‌‌‌​‌‌‌​​‌‌‌​‌‌​​​‌‌​‌​​​​​‌‌​​‌‌​‌‍Viar, Jr. and Patrick J. O‘Brien, Assistant Attorneys General, for the people.

Yann Iannucci in propria persona.

Before: SAAD, P.J., and WILDER and MURRAY, JJ.

PER CURIAM. Defendant, proceeding in propria persona, appeаls his conviction after a jury trial of failure to pay child support, MCL 750.165, for which he was sentenced to 60 months’ probation, with five days to be served in jail, and ordered to рay $21,951 in unpaid child support. For the reasons provided, we affirm.

Defendant and his former wife have two children. Their 2008 marriage ended on August 9, 2011, after the parties signed a сonsent judgment of divorce that included an order for child support, which was later modified. There is no dispute that from August 9, 2011, to January 11, 2013, defendant did not comply with the child support order. The factual basis for defendant‘s conviction--his actual failure to comply with his obligation under the child support order--is not at issue. Rather, the crux of dеfendant‘s several arguments is that, as a disabled veteran, his veteran‘s disability benefits should not have been considered as income for purposes of calculаting child support and that such an inclusion was illegal and contrary to federal law.

Defendant‘s arguments challenging the amount of child support he was ordered to рay are impermissible collateral attacks on the validity of the underlying support order. These challenges were not within the purview of the circuit court in his criminal prosecution and are not properly before this Court in defendant‘s appeal of his criminal conviction. The felony nonsupport 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....” MCL 750.165(1). The elements of this criminal оffense are simply that (1) the defendant was required by a divorce order to support a child, (2) the defendant appeared in or received notice of thе 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). Felony nonsupport is a strict liability offense. People v Adams, 262 Mich App 89, 100; 683 NW2d 729 (2004). At trial, there was no disputе that defendant had been ordered by the Macomb Circuit Court to support his children, that he was aware of the ordered support obligation, and that he failed to timely pay the amount ordered.

Pursuant to MCL 600.1021, the family division of circuit court has sole and exclusive jurisdiction over cases of divorce and ancillary matters, including those mаtters set forth in the Support and Parenting Time Enforcement Act, MCL 552.601 et seq. “[A] support order that is part of a judgment or is an order in a domestic relations matter is a judgment on and аfter the date the support amount is due ... with the full force, effect, and attributes of a judgment of this state....” MCL 552.603(2). The civil court that issues a child support order has continuing, exclusive jurisdiction over that support order and the related proceedings. MCL 552.2205(1). An impermissible “collateral attack occurs whenever challenge is made to judgment in any manner other than through a direct appeal.” People v Howard, 212 Mich App 366, 369; 538 NW2d 44 (1995). This is precisely what defendant seeks to do here. Defendant has not set forth any authority in the felony nonsupport statute, or in ‍‌‌​‌​​‌‌​​​‌‌‌‌‌​‌‌‌​​‌‌‌​‌‌​​​‌‌​‌​​​​​‌‌​​‌‌​‌‍any of the cases interpreting it, that would permit him to collaterally attack in this criminal case the underlying support order.

Furthermore, denying defеndant redress in criminal court simply because he did not obtain a favorable result in the underlying civil proceeding is not a denial of due process. Defendant had thе opportunity, and took that opportunity on more than one occasion, to make his arguments before the civil court, albeit unsuccessfully. Therefore, he was afforded due process. See Grannis v Ordean, 234 US 385, 394; 34 S Ct 779; 58 L Ed 1363 (1914) (“The fundamental requisite of due process of law is the opportunity to be heard.“); People v Herrera (On Remand), 204 Mich App 333, 339; 514 NW2d 543 (1994) (stating that one of the minimum requirements of duе process is the opportunity to be heard).

Defendant‘s additional cursory complaints about alleged improprieties surrounding the proceedings in civil court do not provide a legitimate reason for ignoring his impermissible collateral attack on the underlying support order or for considering these claims. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). “The failure to brief the merits of an allegation of error constitutes an abandonment of the issue.” People v McPherson, 263 Mich App 124, 136; 687 NW2d 370 (2004).

Defendant also asks this Court to exercise ‍‌‌​‌​​‌‌​​​‌‌‌‌‌​‌‌‌​​‌‌‌​‌‌​​​‌‌​‌​​​​​‌‌​​‌‌​‌‍its power of superintending control to, inter alia, vacate the child support order and his conviction. Defendant did not file a complaint for superintending control in the circuit court in accordance with MCR 3.302(E), nor did he file an original action for superintending control in this Court in accordance with MCR 7.206(D). Therefore, this request is not properly before this Court, and we need not review it. J & P Market, Inc v Liquor Control Comm, 199 Mich App 646, 651 n 1; 502 NW2d 374 (1993). Further, a complаint seeking superintending control may not be filed by a party who has another adequate remedy available. MCR 3.302(B); Barham v Workers’ Compensation Appeal Bd, 184 Mich App 121, 127; 457 NW2d 349 (1990). When an appeal in the Court of Appeals is аvailable, “that method of review must be used.” MCR 3.302(D)(2). Defendant has pursued an appeal of his criminal conviction. If he believed that the April 2012 modified support order was improper, he could have filed an application for leave to appeal that order. Therefore, an order of superintending control is not appropriate. See Bd of Ed of the Standish-Sterling Community ‍‌‌​‌​​‌‌​​​‌‌‌‌‌​‌‌‌​​‌‌‌​‌‌​​​‌‌​‌​​​​​‌‌​​‌‌​‌‍Sch Dist v Court of Appeals, 483 Mich 1252 (2009).

We further reject defendant‘s claims that his five-day jail sentence is unconstitutionally unusuаl under the Eighth Amendment and that confinement for failure to pay court-ordered child support creates a debtor‘s prison. Because defendant did not raise thеse claims below, these issues are unpreserved, and our review is limited to plain error affecting defendant‘s substantial rights. People v Carines, 460 Mich 750, 752-753, 764; 597 NW2d 130 (1999). Our Supreme Court has held that a party defaulting on a judgment for child support may be imprisoned because child support is not considered a debt. Toth v Toth, 242 Mich 23, 26-27; 217 NW 913 (1928). Further, defendant has abandoned any claim that a five-day cоnfinement is unconstitutionally unusual because it denies medical care to disabled veterans; defendant failed to provide any factual or relevant legal support for this claim. McPherson, 263 Mich App at 136; Kelly, 231 Mich App at 640-641.

Affirmed.

SAAD, P.J., and WILDER and MURRAY, JJ., concurred.

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