PEOPLE v MONACO
Docket No. 126852
Supreme Court of Michigan
February 1, 2006
Rehearing denied 475 Mich 1222.
474 MICH 48
Vito Monaco was charged in the Macomb Circuit Court with the felony of failing to pay court-ordered child support more than eight years after his support obligation ended.
In an opinion per curiam, signed by Chief Justice TAYLOR and Justices CAVANAGH, CORRIGAN, YOUNG, and MARKMAN, the Supreme Court held:
The Court of Appeals properly found that the felony-nonsupport charge is subject to the six-year period of limitations in
MCL 767.24 generally identifies different limitations periods for different crime categories. Because a violation ofMCL 750.165(1) is not identified in the other subsections ofMCL , it necessarily falls under subsection 5, the catchall subsection providing a six-year period of limitations.767.24 - The Legislature did not intend a violation of
MCL 750.165(1) to be an offense that continues until an individual‘s monetary support obligation is fully discharged. Under the plain language ofMCL 750.165(1) , the crime of felony nonsupport is complete when an individual fails to pay support in the amount ordered at the time ordered. An individual may be guilty of felony nonsupport if the individual either pays the full ordered amount after the due date or pays an amount less than the ordered amount before the due date and the due date passes without the individual making full payment. Anyone who fails to pay the full ordered amount at the time ordered may be prosecuted even if that individual later becomes current on the obligation. The Legislature did not specify having a support arrearage as a way in which an individual can violateMCL 750.165(1) . - The opinion of the Court of Appeals in People v Westman, 262 Mich App 184 (2004), which held that a violation of
MCL 750.165 is a continuing offense, must be overruled to the extent that it is inconsistent with this decision.
Justice KELLY, joined by Justice WEAVER, concurring in part and dissenting in part, concurred with the majority‘s affirmance of the Court of Appeals holding that the appropriate period of limitations applicable to a violation of
Affirmed in part, reversed in part, and remanded to the circuit court for entry of an order of dismissal.
1. CRIMINAL LAW - LIMITATION OF ACTIONS - FAILURE TO PAY COURT-ORDERED SUPPORT.
A charge of felony nonsupport of a former or current spouse or of a child is subject to a six-year period of limitations (
2. CRIMINAL LAW - FAILURE TO PAY COURT-ORDERED SUPPORT.
The crime of nonsupport of a former or current spouse or of a child is complete at the time that an individual fails to pay support in the amount ordered at the time ordered; a violation of the statute does not constitute an offense that continues until an individual‘s monetary support obligation is fully discharged (
Law Offices of James T. Simmons, P.C. (by James T. Simmons), for the defendant.
PER CURIAM. In this case, we are asked to decide whether a violation of the statute that makes it a felony to refuse to pay court-ordered support for a former or current spouse or for a child,
We affirm the Court of Appeals conclusion that a charge of felony nonsupport is subject to the six-year period of limitations of
Defendant was charged with criminal nonsupport well after the six-year limitations period expired. The Court of Appeals thus erred in affirming the trial court‘s denial of defendant‘s motion to dismiss the
I
On August 20, 1984, defendant was ordered to pay child support for his two minor children under a default judgment of divorce. The order required
that the Defendant shall pay to the Friend of the Court for the County of Macomb to be transmitted to the Plaintiff for the support and maintenance of the minor children of the parties, the sum of $43.44 per week per child, for each of the two (2) minor children... until each of the said children have attained the age of eighteen or until further Order of this Court.
Defendant‘s youngest child turned eighteen in March 1994. In December 2002, defendant was charged with violating
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. [Emphasis supplied.]
The statute does not contain an express limitation of actions provision.
At defendant‘s preliminary examination, the pros-
Defendant moved to dismiss the charge or quash the bindover, arguing that the criminal nonsupport charge was time-barred under the six-year limitations period contained in
The trial court denied defendant‘s motion. The court ruled that the charge was not time-barred, relying on the ten-year period of limitations in
For an action to enforce a support order that is enforceable under the support and parenting time enforcement act, Act No. 295 of the Public Acts of 1982, being sections 552.601 to 552.650 of the Michigan Compiled Laws, the period of limitations is 10 years from the date that the last support payment is due under the support order regardless of whether or not the last payment is made.
The Court of Appeals affirmed the trial court‘s decision on different grounds. The panel held that the trial court erred in concluding that the matter was governed
The panel then held that defendant‘s failure to pay the arrearage of his court-ordered child support constitutes a continuing violation of
[A] violation may be continuing under either the “amount owed theory” or the “time ordered theory.” Under the “amount owed theory,” the violation continues as long as an ordered support goes unpaid. The amount ordered is at the same time increased and reaffirmed each time the surcharge is added. For this reason, an “amount owed” violation may continue even beyond the child‘s eighteenth birthday. Under the “time ordered theory,” the defendant violates
MCL 750.165 when he fails to make the weekly support payment. The defendant also violatesMCL 750.165 at the time each surcharge is added to the account and, at the same time, becomes due and owing. [Monaco, supra at 606-607.]
Applying an “amount owed” continuing violation theory, the Court of Appeals held that the statutory period of limitations on the felony-nonsupport charge against defendant never began to run because of defendant‘s arrearage. The panel thus affirmed the trial court‘s denial of defendant‘s motion to dismiss the felony-nonsupport charge or quash the bindover.
“In reviewing a district court‘s decision to bind over a defendant, the lower court‘s determination regarding the sufficiency of the evidence is reviewed for an abuse of discretion, but the lower court‘s rulings based on questions of law are reviewed de novo.” People v Schaefer, 473 Mich 418, 427; 703 NW2d 774 (2005).
III
The first issue is the limitations period applicable to violations of
MCL 600.5809(4) more specifically addresses support orders:“For an action to enforce a support order that is enforceable under the support and parenting time enforcement act, Act No. 295 of the Public Acts of 1982, being sections 552.601 to 552.650 of the Michigan Compiled Laws, the period of limitations is 10 years from the date that the last support payment is due under the support order regardless of whether or not the last payment is made.”
But the statute as a whole clearly applies only to civil actions, not criminal charges. If the language of a statute is clear, no further analysis is necessary or allowed to expand what the Legislature clearly intended to cover. People v Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002).
MCL
The appropriate statutory limitations period is set forth in
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“[(5)] All other indictments shall be found and filed within 6 years after the offense is committed. [Emphasis added.]”
Because
IV
Defendant was charged with criminal nonsupport under
The Court of Appeals held that a violation of
The relevant question in this case is whether the Legislature intended a violation of
An individual is guilty of felony nonsupport under
Our conclusion finds further support when
Desertion, abandonment, or refusal or neglect to provide necessary and proper shelter, food, care, and clothing as provided in this section shall be considered to be a continuing offense and may be so set out in any complaint or information. [Emphasis supplied.]
Thus, in this statute, the Legislature expressly provided that these acts constitute continuing offenses. By con-
We conclude that the Legislature did not intend that a violation of
V
In summary, the crime of nonsupport under
Affirmed in part, reversed in part, and remanded to the trial court.
KELLY, J. (concurring in part and dissenting in part). I concur in the majority‘s affirmance of the Court of Appeals decision regarding the appropriate statute of limitations. A violation of the felony-nonsupport statute,
I dissent from part IV and the conclusion of the majority opinion because I believe that the Court of Appeals was correct when it found that felony nonsupport is a continuing violation. Consequently, I would affirm the conclusions of the Court of Appeals. Also, I would leave unmolested People v Westman, 262 Mich App 184; 685 NW2d 423 (2004), upon which the continuing violations theory relies.
CONTINUING VIOLATIONS ARE DISFAVORED
Statutes of limitations serve important purposes in our criminal justice system. Not only do they protect defendants from having to defend against stale claims, they pressure law enforcement officials to act promptly. The public is served by them in that wrongdoers are brought to justice more quickly. Also, an accused is less likely to be deprived of evidence or witnesses lost through the passage of time.
It is apparent that statutes of limitations find their base in equitable concerns. This fact has led the United States Supreme Court to direct that criminal limitations statutes “be liberally interpreted in favor of repose[.]” United States v Habig, 390 US 222, 227; 88 S Ct 926; 19 L Ed 2d 1055 (1968), quoting United States v Scharton, 285 US 518, 522; 52 S Ct 416; 76 L Ed 917 (1932) (internal quotation marks omitted).
In Toussie v United States,2 the Supreme Court recognized that the doctrine of continuing offenses could contradict the very goals and purposes of statutes of limitations. The tension between the two is clear. Limitation statutes restrict an accused‘s exposure to legal proceedings. A continuing violation perpetuates it, decreeing that each day an accused does not eliminate his violation of a statute, he violates it again. Toussie v United States, 397 US 112, 114-115; 90 S Ct 858; 25 L Ed 2d 156 (1970).
Courts should not resolve this tension by never viewing an offense as a continuing violation. Rather, they must exercise particular diligence before deciding that the intent of the legislature was that an offense constitutes a continuing violation. The Supreme Court gave us this guidance in Toussie:
[A conclusion that a violation is a continuing violation should not be made] unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one. [Id. at 115.]
THE LEGISLATURE INTENDED A CONTINUING OFFENSE IN MCL 750.165(1)
Whether a continuing violation exists is a matter of statutory interpretation. As in all such matters, our
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. [Emphasis added.]
Here, the Legislature has created two distinct ways of committing the crime: (1) failing to pay support in the required amount or (2) failing to pay at the time stated in a court order. I believe that the “or” used in this statute is significant. The Legislature intentionally placed it there to create two separate ways of committing the offense.
Wherever possible, every word of a statute should be given meaning, and no word should be treated as surplusage or made nugatory by court interpretation. People v Warren, 462 Mich 415, 429 n 24; 615 NW2d 691 (2000). By reading
The majority has replaced the two ways to commit the offense of felony nonsupport with one. As the majority reads the statute, a person is guilty of the offense whenever that person fails to pay the full amount ordered at the time ordered. It does not matter
The majority acknowledges that the Legislature intended two separate ways to violate the statute. But its analysis strays from its acknowledgement. Because the Legislature intended two separate ways to commit the offense, “or” cannot be read out of the statute as the majority has done.
The majority‘s reading effectively replaces “or” with “and.” “[T]he individual does not pay the support in the amount and at the time stated in the order[.]” Again, I cannot agree with departing from the language of the statute as the majority has done. “And” is conjunctive. “Or” is disjunctive. They do not mean the same thing. Nothing in the text of the statute indicates that the Legislature intended “and” but inadvertently used “or” in its place. The choice appears intentional. The Legislature sought to create two means of committing felony nonsupport, and it did so by use of the disjunctive “or.”
Without good cause to conclude otherwise, we must assume that the Legislature chose the words of the statute purposely and intentionally. Detroit v Redford Twp, 253 Mich 453, 456; 235 NW 217 (1931). Because nothing in the statute contradicts the conclusion that the choice was intentional, the Court should honor the Legislature‘s use of “or” in
The first way to violate the statute is by failing to pay the amount ordered. There is no limitation in the statute on when the failure to pay must occur. Therefore, nothing prevents it from continuing past the date for payment specified in the order. In fact, an individual, such as defendant in this case, fails to pay support “in the amount” ordered not only each pay period but each day he is in arrears. In this case,
The majority points to
By enacting
By contrast, the failure to pay support is by its nature continuous. Applying Toussie and given the nature of felony nonsupport, the Legislature must assuredly have
Here, defendant did not pay court-ordered support continuing over a period of years and resulting in an accumulated arrearage of over $57,000. The Court of Appeals was right when it found that it was because of defendant‘s continuing failure to pay support that the lower court correctly bound defendant over for trial.
I do not make this finding of a continuing violation lightly. I recognize the extra scrutiny required under Toussie. But I believe that the explicit language of the substantive criminal statute compels this conclusion. Toussie, 397 US 115. In
THE EX POST FACTO CLAUSES WERE NOT VIOLATED
Defendant points out that
I agree with the Court of Appeals that no ex post facto violation of law occurred in this case. Because defendant‘s failure to pay overdue child support is an ongoing violation of
CONCLUSION
I concur in the majority‘s decision that a violation of
WEAVER, J., concurred with KELLY, J.