                                                                 Michigan Supreme Court
                                                                       Lansing, Michigan
                                            Chief Justice:         Justices:



Opinion                                     Robert P. Young, Jr. Michael F. Cavanagh
                                                                 Marilyn Kelly
                                                                 Stephen J. Markman
                                                                 Diane M. Hathaway
                                                                 Mary Beth Kelly
                                                                 Brian K. Zahra

                                                             FILED JULY 31, 2012

                       STATE OF MICHIGAN

                                SUPREME COURT


 PEOPLE OF THE STATE OF MICHIGAN,

          Plaintiff-Appellee,

 v                                                   No. 141154

 SELESA ARROSIEUR LIKINE,

          Defendant-Appellant.


 PEOPLE OF THE STATE OF MICHIGAN,

          Plaintiff-Appellee,

 v                                                   No. 141181

 MICHAEL JOSEPH PARKS,

          Defendant-Appellant.


 PEOPLE OF THE STATE OF MICHIGAN,

          Plaintiff-Appellee,

 v                                                   No. 141513

 SCOTT BENNETT HARRIS,
                 Defendant-Appellant.


BEFORE THE ENTIRE BENCH

MARY BETH KELLY, J.
        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

1
    People v Adams, 262 Mich App 89; 683 NW2d 729 (2004).



                                            2
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




                                             3
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




2
 Testimony at trial would later reveal that during the period when Likine’s child support
obligation was $181 a month, “[t]here was only one month in which the current support
plus a little bit of arrears was paid.” Likine paid no child support in 2006, and paid
$488.85 in 2007. From January through March 2008, she paid a total of $100.
According to Likine, she had been unemployed since September 2005, after being
hospitalized; she had earned, at most, $19,000 a year; after January 2006, she subsisted
on social security disability payments of about $600 a month.
3
  The referee noted that Likine was “very evasive[,] as she [had] been in past hearings,
about the nature and source of her income.” Likine also indicated that she had financed
her lifestyle using credit cards and did not believe that her child support should be
increased “for her poor financial decisions.”
4
  MCL 552.519 establishes the state Friend of the Court Bureau and charges it with
developing and providing “[g]uidelines for imputing income for the calculation of child
support” by the Office of the Friend of the Court. MCL 552.519(3)(k)(iii). MCL
552.517b, which pertains to review of child support orders, specifies that “[t]he friend of
the court office may impute income to a party who fails or refuses to provide
information” to the FOC, MCL 552.17b(6)(b), and provides that “[i]f income is imputed,
the recommendation shall recite all factual assumptions upon which the imputed income
is based,” MCL 552.517b(6)(a).



                                            4
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


5
    The referee concluded that Likine

         either has far more income than she is trying to convince the Court she has,
         or, she has other sources with which to pay her living expenses. Either
         way, it would be patently unfair not to base child support on the income
         [Likine] sees fit to believe she is entitled to live on.

6
  Likine applied for leave to appeal that ruling, but the Court of Appeals denied leave “for
failure to persuade the Court of the need for immediate appellate review.” Likine v Likine,
unpublished order of the Court of Appeals, entered March 14, 2008 (Docket No.
280148).



                                              5
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



7
    Adams, 262 Mich App at 89.



                                              6
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


8
 Likine also informed the court that another motion to modify was pending before the
FOC referee who had issued the April 2006 report.
9
  Elive also testified that Likine had purchased a new vehicle around the time that she
bought the house. Likine testified that she had turned in a leased vehicle and acquired
another leased vehicle.



                                            7
       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




                                              8
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


10
   Likine’s motion for a new trial characterized her argument as pertaining to an “ability
to pay” defense. However, the motion itself, and her brief in support of the motion, cite
this Court’s ruling in Port Huron v Jenkinson, 77 Mich 414; 43 NW 923 (1889), and
assert that it was “impossible” for her to fulfill her support obligation.
11
     Adams, 262 Mich App at 99-100.
12
     People v Likine, 288 Mich App 648, 654; 794 NW2d 85 (2010).
13
     People v Likine, 488 Mich 955; 790 NW2d 689 (2010).



                                               9
$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


14
   While the prosecutor argued that inability to pay was not a defense pursuant to Adams,
the trial court did not curtail Parks’s testimony, indicating that because it was a bench
trial and the judge understood the law, Parks’s testimony regarding his improperly
imputed income made no difference.



                                            10
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



15
   Defense counsel admitted into evidence a March 2005 order of the United States
District Court for the Western District of Michigan amending Parks’s 2003 judgment in a
criminal case. The amended judgment sentenced Parks to 90 days’ imprisonment for
violating the terms of his federal probation that required him to “pay child support in
accordance with his court-ordered schedule of payments” and to “support his dependents
and meet other family responsibilities.” In addition to serving 90 days’ imprisonment,
Parks was required to pay restitution in the amount of $28,623.34 to the Ingham County
Friend of the Court within six months after the date of the amended judgment.
16
   According to a motion Parks filed in the Court of Appeals, he suffers from carpal
tunnel syndrome in both hands.



                                           11
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


17
  People v Parks, unpublished opinion per curiam of the Court of Appeals, issued April
20, 2010 (Docket No. 291011).



                                            12
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

18
     People v Parks, 488 Mich 955 (2010).
19
     People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).



                                            13
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.




                                            14
         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


20
  In addition, the circuit court concluded that it was not improper for that court to adopt
the arrearage as the restitution amount and requested supplemental briefing on Harris’s
challenge to the scoring of offense variable 9 (number of victims). The circuit court
upheld the scoring in an opinion and order dated December 2, 2009. Harris filed a
motion for rehearing, which the circuit court denied on March 5, 2010.
21
  People v Harris, unpublished order of the Court of Appeals, entered June 4, 2010
(Docket No. 297182).
22
     People v Harris, 488 Mich 955 (2010).



                                             15
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.




23
     In re MCI Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999).
24
     See Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993).
25
     House Speaker v State Admin Bd, 441 Mich 547, 567; 495 NW2d 539 (1993).
26
     Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992).
27
     Sidun v Wayne Co Treasurer, 481 Mich 503, 508; 751 NW2d 453 (2008).



                                              16
                                         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

28
     The statute provides, in its entirety:

                 (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.
                 (3) Unless the individual deposits a cash bond of not less than
          $500.00 or 25% of the arrearage, whichever is greater, upon arrest for a
          violation of this section, the individual shall remain in custody until the
          arraignment. If the individual remains in custody, the court shall address
          the amount of the cash bond at the arraignment and at the preliminary
          examination and, except for good cause shown on the record, shall order
          the bond to be continued at not less than $500.00 or 25% of the arrearage,
          whichever is greater. At the court’s discretion, the court may set the cash
          bond at an amount not more than 100% of the arrearage and add to that
          amount the amount of the costs that the court may require under section
          31(3) of the support and parenting time enforcement act, 1982 PA 295,
          MCL 552.631. The court shall specify that the cash bond amount be entered
          into the L.E.I.N. If a bench warrant under section 31 of the support and
          parenting time enforcement act, 1982 PA 295, MCL 552.631, is
          outstanding for an individual when the individual is arrested for a violation
          of this section, the court shall notify the court handling the civil support
          case under the support and parenting time enforcement act, 1982 PA 295,
          MCL 552.601 to 552.650, that the bench warrant may be recalled.

                 (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


                                               17
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

        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. The court shall order a
        support amount enforced under this section to be paid to the clerk or friend
        of the court or to the state disbursement unit.

              (5) As used in this section, “state disbursement unit” or “SDU”
        means the entity established in section 6 of the office of child support act,
        1971 PA 174, MCL 400.236. [MCL 750.165 (emphasis added).]
29
     MCL 750.165(1).
30
   After Adams was decided, 2004 PA 570 further amended MCL 750.165 to add
subsection (3), which concerned cash bonds deposited by a defendant, see note 28 of this
opinion, but that amendment would not have affected the Adams analysis and does not
affect our analysis here.



                                                 18
         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

31
     MCL 750.165, as amended by 1939 PA 89 (emphasis added).
32
  Adams, 262 Mich App at 93. The Court listed “numerous factors that may be
considered in deciphering this intent,” including:

                (1) whether the statute is a codification of common law; (2) the
         statute’s legislative history or its title; (3) guidance to interpretation
         provided by other statutes; (4) the severity of the punishment provided; (5)
         whether the statute defines a public-welfare offense, and the severity of
         potential harm to the public; (6) the opportunity to ascertain the true facts;
         and (7) the difficulty encountered by prosecuting officials in proving a
         mental state. [Id. at 93-94 (citations omitted).]
33
     Id. at 94-98.
34
     Id. at 96, discussing People v Ditton, 78 Mich App 610; 261 NW2d 182 (1977).



                                              19
          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


35
     Adams, 262 Mich App at 96.
36
     Id. at 99.
37
  See Lambert v California, 355 US 225; 78 S Ct 240; 2 L Ed 2d 228 (1957); see also
Smith v California, 361 US 147, 150; 80 S Ct 215; 4 L Ed 2d 205 (1959), and People v
Rice, 161 Mich 657, 664; 126 NW 981 (1910).
38
     People v Quinn, 440 Mich 178, 187; 487 NW2d 194 (1992).
39
     See Black’s Law Dictionary (7th ed).



                                            20
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

40
  People v Kowalski, 489 Mich 488, 499 n 12; 803 NW2d 200 (2011), citing People v
Tombs, 472 Mich 446, 452-456; 697 NW2d 494 (2005); United States v X-Citement
Video, Inc, 513 US 64; 115 S Ct 464; 130 L Ed 2d 372 (1994); Staples v United States,
511 US 600; 114 S Ct 1793; 128 L Ed 2d 608 (1994); and Morissette v United States, 342
US 246; 72 S Ct 240; 96 L Ed 288 (1952).
41
   However, we note that legal commentators have specifically discussed Adams,
emphasizing the voluntary-act requirement in criminal law and the requisite possibility of
performance in crimes of omission:

             It is axiomatic that crimes consist of a mental part (mens rea) and a
       physical part (the requirement of a voluntary act, or a failure to act when
       there was a duty to do so). It is possible, however, for a legislature to
       dispense with a mens rea requirement. . . .

              Nonetheless, [Adams] is more correctly framed as a voluntary act
       case rather than a mens rea case. An involuntary act—or an involuntary
       failure to act when there was a duty to do so—has never before been
       subject to punishment in American law. Indeed, more than 100 years ago


                                              21
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

         the Michigan Supreme Court addressed this very issue, and concluded
         possibility of performance is an essential element in a failure-to-act offense.
         No one can be held criminally liable because of a bodily movement which
         is involuntary. Nor can one be held criminally liable for failing to perform
         an act which one is incapable of performing. [Apol & Studnicki, Criminal
         law, 51 Wayne L R 653, 673-674 (2005), citing Jenkinson, 77 Mich 414
         (1889).]
42
   See, e.g., Morissette, 342 US at 251 (noting American courts’ early recognition of
crime “as a compound concept, generally constituted only from concurrence of an evil-
meaning mind with an evil-doing hand”); see also 4 Blackstone, Commentaries on the
Laws of England, p *20, (stating that “to constitute a crime against human laws, there
must be, first, a vicious will, and secondly, an unlawful act consequent upon such vicious
will”).
43
   The actus reus is “[t]he wrongful deed that comprises the physical components of a
crime and that generally must be coupled with mens rea to establish criminal liability[.]
Black’s Law Dictionary (8th ed).
44
     Quinn, 440 Mich at 188.
45
  See, e.g., People v Freeman, 61 Cal App 2d 110; 142 P2d 435 (1943) (finding no
voluntary act when the defendant, after experiencing an epileptic seizure, became
unconscious while driving, causing a fatal collision); State v Hinkle, 200 W Va 280, 282,
285-286; 489 SE2d 257 (1996) (finding no voluntary act when defendant lost


                                               22
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



consciousness while driving because of an undiagnosed brain disorder, causing a
collision).
46
  See People v Newton, 8 Cal App 3d 359, 373; 87 Cal Rptr 394 (1970) (discussing loss
of consciousness and “reflex shock condition” after the defendant sustained an abdominal
gunshot wound).
47
  See, e.g., State v Welsh, 8 Wash App 719, 722-723; 508 P2d 1041 (1973) (stating, with
regard to the element of intent, that there is no criminal liability for an unconscious act
and explaining that “during a psychomotor seizure, a person is not conscious of his
behavior; his actions are automatic”).
48
  See 1 LaFave & Scott, Substantive Criminal Law, 2d ed, § 6.1(c), p 429; State v
Mishne, 427 A2d 450, 455-57 (Me, 1981) (construing an intentional act as requiring
awareness and consciousness); cf. People v Decina, 2 NY2d 133, 137-140; 157 NYS2d
558; 138 NE2d 799 (1956) (finding a voluntary act when the defendant, knowing he
might, at any time, be subject to epileptic attacks and seizures, drove an automobile with
nobody accompanying him, suffered a seizure, and caused a fatal collision).
49
  See 1 LaFave & Scott, § 6.1(c), p 429; see also Simester, On the so-called requirement
for voluntary action, 1 Buff Crim L R 403, 419 (1998):
               [I]t may be helpful to consider what philosophers have had to say
       about voluntariness. In fact, there is surprisingly little analysis in the
       literature. Moreover, the existing analysis is not always of the same
       concept. One approach is to explain voluntariness as the opposite of
       involuntariness . . . . An alternative account is of voluntary behavior as
       volitional action—behavior which is intentional under some description,
       which is “done because the agent wants to do it.” [Citation omitted.]



                                            23
       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]




50
  See, e.g., Willing v United States, 4 US (4 Dall) 374, 376; 1 L Ed 872 (1804) (ruling in
favor of defendants, who had argued in the district court that “‘the law does not compel
parties to impossibilities (lex non cogit ad impossibilia)’”); Stockdale v Coulson, 3 All
ER 154 (1974) (allowing appeal and quashing conviction after finding that it was
impossible for a company’s director and secretary to comply with a statutory requirement
to attach documents that did not exist); Regina v Hogan, 169 ER 504, 505; 2 Den 277
(1851) (noting that in order to convict a parent of neglect, it must be shown that the
parent “had the means of supporting [the child].”)
51
  Recognizing the roots of impossibility in early common law, Chief Justice Edward
Coke stated in Dr Bonham’s Case, 8 Co Rep 113b, 118a; 77 Eng Rep 646 (1610), that
“when an act of parliament is against common right and reason, or repugnant, or
impossible to be performed, the common law will controul it, and adjudge such act to be
void.”
52
  Regina v Bamber, 5 QB 279, 287; 114 ER 1254 (1843) (comment by Denman, C.J.).
Judge Wightman noted that there had been “no allegation on the record that [the
defendant’s] duty [was] to keep the sea out.” Id. at 286.



                                            24
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


53
  See The Generous, 2 Dods 322, 323 (1818), in which Sir William Scott stated, “But the
law itself, and the administration of it, must yield to that to which every thing must
bend — to necessity. The law, in its most positive and peremptory injunctions, is
understood to disclaim, as it does in its general aphorisms, all intention of compelling
them to impossibilities; and the administration of law must adopt that general exception
in the consideration of all particular cases.” See also In re Bristol and N S R Co, 3 QBD
10, 13 (1877) (declining to issue a writ of mandamus to enforce a statutory duty that was
“impossible” for the railway to discharge because doing so “would be contrary to the
elementary principles of justice”) (comment of Cockburn, C.J.).
54
     Simester, 1 Buff Crim L R, p 417.
55
   1 LaFave & Scott, § 6.2(c), p 446 (recognizing the defense, but emphasizing that
“impossibility means impossibility”); see also United States v Spingola, 464 F2d 909,
911 (CA 7, 1972) (holding that “[g]enuine impossibility is a proper defense to a crime of
omission”).
56
 See Williams, Criminal Law: The General Part (2d ed), § 240, p 747 (stating that “[i]t
may be laid down as a general proposition that where the law imposes a duty to act, non-


                                              25
          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

compliance with the duty will be excused where compliance is physically impossible”).
We first recognized that impossibility is a defense to a strict-liability crime 123 years ago
in Jenkinson, 77 Mich 414, a discussion of which follows.
57
  Port Huron v Jenkinson, 77 Mich 414; 43 NW 923 (1889); see also Benton Harbor v St
Joseph & B H Street R Co, 102 Mich 386, 390-391; 60 NW 758 (1894) (recognizing
impossibility as a defense when the respondent “cannot procure funds” to pave within its
rails and the roadway, as required by ordinance; “that it is an utter impossibility to do
what it is asked to have done; that it cannot pay [its] current expenses; and . . . that a writ
of mandamus will not issue to compel the performance when it is apparent that the parties
against whom it is to be directed have no power to comply therewith”).



                                                26
          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



58
     Jenkinson, 77 Mich at 419-420 (emphasis added).
59
     Id. at 419.
60
   The Michigan Constitution provides that “[t]he common law and the statute laws now
in force, not repugnant to this constitution, shall remain in force until they expire by their
own limitations, or are changed, amended or repealed.” Const 1963, art 3, § 7.

61
   People v Dupree, 486 Mich 693, 705-706; 788 NW2d 399 (2010). The operative
language of MCL 750.165(1), which states 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,” reflects no intent to abrogate the traditional common-
law defense of impossibility. Our decision in Jenkinson and the common-law principles
recognizing the defense of impossibility form the matrix within which the Legislature
enacted MCL 750.165 given that “‘the Legislature is presumed to be aware of judicial
interpretations of existing law when passing legislation.’” People v Lowe, 484 Mich 718,
729; 773 NW2d 1 (2009), quoting Ford Motor Co v City of Woodhaven, 475 Mich 425,
439-440; 716 NW2d 247 (2006).



                                              27
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


62
   At oral argument, the Attorney General conceded that the common-law defense of
impossibility remained available to a defendant charged with felony nonsupport but
stated that none of these defendants “come[s] even close” to establishing impossibility.
63
  Smart, Criminal responsibility for failing to do the impossible, 103 L Q R 532, 533
(1987).
64
     Bearden v Georgia, 461 US 660; 103 S Ct 2064; 76 L Ed 2d 221 (1983).



                                             28
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]


65
     Id. at 662.
66
     Id. at 662-663.
67
     Id. at 667-668.
68
     Id. at 665.
69
     Id. at 668, 672.
70
     Id. at 668-669 (emphasis added; citations omitted).



                                               29
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

71
     Id. at 668.
72
  The formulation articulated in Bearden is largely consistent with The Generous, 2
Dods at 323-324:

                 [T]he nature of the necessity pleaded [must] be such as the law itself
          would respect; for there may be a necessity which it would not. A necessity
          created by a man’s own act, with a fair previous knowledge of the
          consequences that would follow, and under circumstances which he had
          then a power of controuling, is of that nature.

Moreover,

          the party who was so placed [must have] used all practicable endeavours to
          surmount the difficulties which already formed that necessity, and which on
          fair trial he found insurmountable. I do not mean all the endeavours which
          the wit of man, as it exists in the acutest understanding, might suggest, but
          such as may reasonably be expected from a fair degree of discretion and an
          ordinary knowledge of business. [Id. at 324.]



                                               30
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

73
     Id.
74
   Relevant to this inquiry is the defendant’s conduct at the family court proceedings,
including providing appropriate documentation, and compliance with the family court’s
order, which we will discuss later in this opinion.



                                               31
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

75
  This list is not intended to be exhaustive or exclusive, but instead sets forth factors that
courts may use to consider whether a defendant charged under MCL 750.165 has
presented evidence that might demonstrate genuine impossibility. We emphasize that the
factfinder’s inquiry into the basis for an impossibility claim is broader in scope than that
necessitated by a mere claim of “inability to pay.” Inability to pay may be an evidentiary
factor that can be used in support of an impossibility defense, but, standing alone, it is
insufficient to show impossibility. For example, evidence that is corroborated or
documented, by whatever means may be available, that the defendant has exhausted all of
his or her monetary resources, does not possess (or has been unable to find a buyer for or
lender against) assets that could be sold or pledged to obtain the means to satisfy the
support obligation, and has made all reasonable efforts to secure employment to satisfy
the support obligation may, in the absence of persuasive contradictory evidence, satisfy
the strict requirements of the impossibility defense we recognize here.

       To provide an illustration of an extreme example, in our view, a person who was
unexpectedly hospitalized or underwent emergency surgery may be able to meet the
exacting standard of the impossibility defense if, through no fault of that person’s own,
he or she could not physically or financially make the court-ordered support payment.
See Williams, Criminal Law, § 240, p 747 (discussing physical impossibility). We
underscore, however, that this must involve some element of unexpectedness and
circumstances beyond the defendant’s control that make it truly impossible to meet the
support obligation. Thus, one who, knowing that he or she is about to undergo major
surgery that may have debilitating consequences, nevertheless takes no steps to ensure
that a known support obligation is met during a period of convalescence will be situated
differently from one who is suddenly injured or unexpectedly incapacitated. See, e.g.,
Bamber, 5 QB at 287 (referring to an “act of God” causing encroachment by the sea).
What will be sufficient to establish impossibility in a given case will depend on the
individual circumstances of the particular defendant, but passivity, neglect, or failure to
plan for parental financial obligations will not excuse neglected parental responsibility.



                                             32
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




76
     Bearden, 461 US at 668.
77
   An affirmative defense admits the crime but seeks to excuse or justify its commission.
It does not negate specific elements of the crime. People v Lemons, 454 Mich 234, 246
n 15; 562 NW2d 447 (1997); see also People v Pegenau, 447 Mich 278, 319; 523 NW2d
325 (1994) (BOYLE, J., concurring) (“[A]n affirmative defense in effect concedes the
facial criminality of the conduct and presents a claim of justification or excuse . . . .”).
78
   See Martin v Ohio, 480 US 228, 230; 107 S Ct 1098; 94 L Ed 2d 267 (1987)
(upholding Ohio statute placing the burden of producing evidence supporting an
affirmative defense on the defendant), Dupree, 486 Mich at 709-710, and Lemons, 454
Mich at 248.



                                            33
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


79
  People v Mills, 450 Mich 61, 81; 537 NW2d 909 (1995) (“A trial court is required to
give a requested instruction [for a defense theory], except where the theory is not
supported by evidence.”).
80
  At common law, the burden of proving an affirmative defense rested on the defendant.
Patterson v New York, 432 US 197, 202; 97 S Ct 2319; 53 L Ed 2d 281 (1977);
Commonwealth v York, 50 Mass 93 (1845). See 4 Blackstone, p *202:

                And all these circumstances of justification, excuse or alleviation, it
         is incumbent upon the prisoner to make out, to the satisfaction of the court
         and jury: the latter of whom are to decide whether the circumstances
         alleged are proved to have actually existed; the former, how far they extend
         to take away or mitigate the guilt.
81
   The United States Supreme Court has upheld the constitutionality of requiring a
defendant to prove an affirmative defense as long as the defendant does not have the
burden of disproving any of the elements included by the state in its definition of the
crime. See Patterson, 432 US at 210; Martin, 480 US at 232. Although the prosecution
must prove the elements of the crime beyond a reasonable doubt, the defendant bears the
burden of proving the affirmative defense by a preponderance of the evidence.
Patterson, 432 US at 206; Martin, 480 US at 232.
82
     People v Monaco, 474 Mich 48, 56-57; 710 NW2d 46 (2006).



                                              34
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


83
  See, e.g., Hicks ex rel Feiock v Feiock, 485 US 624, 627-629; 108 S Ct 1423; 99 L Ed
2d 721 (1988) (accepting the state court’s determination that ability to comply with a
court order is an affirmative defense rather than an element of the offense of contempt);
Davis v Barber, 853 F2d 1418, 1427-1428 (CA 7, 1988) (finding no violation of due
process when the state put the burden of proof on the defendant to show financial
inability in a criminal nonsupport case).



                                            35
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


84
  Michigan law does not permit the retroactive modification of support orders. MCL
552.603(2); Malone v Malone, 279 Mich App 280, 288-289; 761 NW2d 102 (2008).



                                             36
         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


85
  Stevenson v United States, 162 US 313, 314-315; 16 S Ct 839; 40 L Ed 980 (1896)
(emphasis added).
86
     Washington v Texas, 388 US 14, 19; 87 S Ct 1920; 18 L Ed 2d 1019 (1967).
87
     People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999).



                                             37
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

88
     Id. at 764-765.
89
     People v New, 427 Mich 482, 491-492; 398 NW2d 358 (1986).



                                              38
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

90
   In light of our conclusion that Harris was not entitled to withdraw his plea, our
discussion in part III(E) of the weight to be accorded to the evidentiary record in the
family court proceeding, and the absence of any persuasive argument in Harris’s brief on
appeal regarding the arrearage amount, Harris is not entitled to relief on that issue.
91
  Post at 9-10. The dissent mischaracterizes our impossibility defense, referring to it as
an “impossibility-to-pay defense.” Of course, the impossibility defense that we recognize
today, contrary to the dissent’s appellation, is the traditional, common-law impossibility
defense, which takes into account and thereby subsumes the inability-to-pay inquiry,
which is the sole consideration for the dissent. The impossibility defense is not a singular
inquiry relating only to ability or inability to pay, but instead considers several relevant
factors surrounding a particular defendant’s circumstances.
92
  See part III(C) of this opinion. The dissent also analyzes the distinction between legal
and factual impossibility, which is irrelevant and unhelpful here because this distinction
pertains only to attempt crimes.
93
   Thus, it is unclear whether the dissent’s inability-to-pay defense is its version of the
impossibility defense or whether it is an additional defense to the crime of felony
nonsupport. The dissent’s description of the inability-to-pay defense, post at 18 (“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”), is actually similar to our
description of the impossibility defense, supra at 30 (“a defendant must show that he or


                                            39
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

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”).
94
   The dissent misconstrues Jenkinson as endorsing an inability-to-pay defense. The
dissent, however, does not deny that Jenkinson recognized the defense of impossibility
and implicitly recognizes that, under Jenkinson, inability to pay is part of the analysis for
this defense. Because our impossibility standard, like that in Jenkinson, incorporates
inability to pay as a consideration of the impossibility defense, it is illogical to conclude,
as the dissent does, that our impossibility defense is unconstitutional under Jenkinson.
95
   The dissent’s observation that neither version of the nonsupport statute provides a
defense to the charge merely states the obvious and does not change our recognition of
the common-law defense of impossibility in light of the lack of any indication in the
statutory language that the Legislature intended to abrogate this defense.
96
   The dissent relies on legislative acquiescence, “‘a highly disfavored doctrine of
statutory construction,’” Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 177 n 33;
615 NW2d 702 (2000), quoting Donajkowski v Alpena Power Co, 460 Mich 243, 261;
596 NW2d 574 (1999) to support its conclusion that the “inability-to-pay” defense
remains intact after the 1999 amendment to the statute. We could just as easily apply the
doctrine of legislative acquiescence to conclude that the Legislature intended to eliminate
inability to pay as a defense to the strict-liability crime of felony nonsupport because the
Legislature took no action after the Court of Appeals’ 2004 decision in Adams. The
reason the dissent reaches the former conclusion, and not the latter, can only be attributed
to the dissent’s policy preference. Indeed, that equally plausible conclusions can be
reached by applying this doctrine demonstrates the malleable and problematic nature of
inferring legislative intent from the Legislature’s inaction. It is precisely for this reason


                                             40
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 3½-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

that the doctrine is disfavored. “[S]ound principles of statutory construction require that
Michigan courts determine the Legislature’s intent from its words, not from its silence.”
Donajkowski, 460 Mich at 261. Consistently with this principle, our decision recognizes
the common-law impossibility defense because, as we discussed in part III(D) of this
opinion, there is no indication that the Legislature intended to abrogate this common-law
defense.
97
     See post at 19 n 52; compare Likine’s brief on appeal, pp 11-16 n 4.
98
   This point is evidenced by the fact that several of the other states’ criminal nonsupport
statutes contain elements (such as willfulness) or language (such as “without excuse”)
that are conspicuously absent from our statute. For further discussion, see note 101 of
this opinion.
99
     Painter v Commonwealth, 140 Va 459; 124 SE 431, 432 (1924) (emphasis added).
100
      See also DC Code 46-225.02(d), which states:



                                              41
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

              For purposes of this section, failure to pay child support, as ordered,
       shall constitute prima facie evidence of a willful violation. This
       presumption may be rebutted if the obligor was incarcerated, hospitalized,
       or had a disability during the period of nonsupport. These circumstances do
       not constitute an exhaustive list of circumstances that may be used to rebut
       the presumption of willfulness.

       We note that this statute enumerates factors for rebutting the willfulness element
contained in that statute that are similar to those we set forth in our decision today. It is
also apparent that at least two states referred to in the footnote actually recognize what is
more accurately characterized as an impossibility defense like the one we recognize
today. See Painter, 140 Va 459; see also Epp v State, 107 Nev 510, 514; 814 P2d 1011
(1991) (stating, in language strikingly similar to that used in Jenkinson, “[o]bviously, ‘the
law does not contemplate punishing a person for failing to do a thing which he cannot
do’”) (citation omitted).
101
   See Ariz Rev Stat Ann 25-511B (“It is an affirmative defense to a charge of [failure to
provide for one’s child] that the defendant . . . was unable to furnish reasonable
support.”); Colo Rev Stat 14-6-101 (“It shall be an affirmative defense . . . to a
prosecution [for felony nonsupport] that owing to physical incapacity or other good cause
the defendant is unable to furnish the support . . . .”); Del Code Ann tit 11, § 1113(d) (“In
any prosecution for criminal nonsupport or aggravated criminal nonsupport, it is an
affirmative defense that the accused was unable to pay or provide support . . . .”); Minn
Stat 609.375(8) (“It is an affirmative defense to criminal liability [for nonsupport of
spouse or child] if the defendant proves by a preponderance of the evidence that the
omission and failure to provide care and support were with lawful excuse.”); ND Cent
Code 12.1-37-01(4) (“It is an affirmative defense to a charge [of failure to support a
child] that the defendant suffered from a disability during the periods an unpaid child
support obligation accrued . . . .”); Ohio Rev Code Ann 2919.21(D) (“It is an affirmative
defense to a charge of failure to provide adequate support . . . that the accused was unable
to provide adequate support . . . .”); Tex Penal Code Ann 25.05(d) (“It is an affirmative
defense to prosecution [for criminal nonsupport] that the actor could not provide support
for the actor’s child.”); Utah Code Ann 76-7-201(5)(a) (“[I]t is an affirmative defense [to
criminal nonsupport charges] that the accused is unable to provide support.”); Wis Stat
948.22(6) (“[A]ffirmative defenses [to failure to support charges] include but are not
limited to inability to provide child, grandchild or spousal support.”); Wyo Stat Ann 20-
3-101(c) (“It is an affirmative defense . . . that the person was unable to provide adequate
support . . . .”). In addition, three other states, although not explicitly recognizing ability


                                              42
to pay as an affirmative defense, specifically recognize inability to pay as a defense to
nonsupport. See Ind Code 35-46-1-5(d) (providing that “[i]t is a defense [to charges of
nonsupport of a dependent child] that the accused person was unable to provide
support”); Rogers v Commonwealth, 321 SW2d 779, 781 (Ky, 1959) (stating that
“[p]hysical disability and financial inability have been recognized as defenses to a
prosecution under the child desertion statute”); La Rev Stat Ann 14:74B(1) (providing
that “[p]hysical incapacity which prevents a person from seeking any type of employment
constitutes a defense to the charge of [nonsupport]”).

        Further, the dissent includes within the footnote states that do not specifically
recognize an inability-to-pay defense, but instead consider a parent’s ability to pay within
the criminal proceeding. This is not the same as a defense of inability to pay. See Cal
Penal Code 270 (specifically considering, in language cited by the dissent, parents’
income and also whether the act or omission “is willful and without lawful excuse”);
Elam v State, 138 Ga App 432, 432; 226 SE2d 290 (1976) (considering “evidence as to
[defendant’s] financial condition which tended to negate the element of wilfulness”);
Mass Gen Laws ch 273, § 1(4) (providing that a parent is guilty of a felony for failing to
comply with a child-support order or judgment “wilfully and while having the financial
ability or earning capacity to have complied”).

        Other states explicitly include ability to pay, or willful failure to pay, as an
element of the offense. Again, this is not the same as an inability-to-pay defense.
Representative states mentioned in the footnote that do not explicitly recognize an
inability-to-pay defense but include an element of willfulness or knowledge and also
consider ability to pay as part of the criminal charge are Ala Code 13A-13-4 (imposing
liability for “intentionally fail[ing] to provide support which that person is able to
provide”); Alas Stat 11.51.120(a) (imposing liability for a “knowing[] fail[ure], without
lawful excuse, to provide support for the child”); Nelke v State, 19 Ark App 292, 294;
720 SW2d 719 (1986) (stating that “[i]n order to make out the offense, the State must
show a willful or negligent failure to provide, not a mere failure because of inability” and
noting other states’ holdings that “the inability to pay cannot be brought about
intentionally and willfully by the defaulting parent”) (citations omitted); Fla Stat
827.06(2) (imposing liability on “[a]ny person who willfully fails to provide support
which he or she has the ability to provide”); Elam, 138 Ga App at 432 (noting the
statutory requirement that the act “be done ‘wilfully and voluntarily’” to support the
imposition of liability); Hawaii Rev Stat 709-903(a) (imposing liability when a “person
knowingly and persistently fails to provide support which the person can provide”); State
v Krumroy, 22 Kan App 2d 794, 800; 923 P2d 1044 (1996) (considering Kan Stat Ann
21-3605 and noting that “[t]he issue of whether Krumroy failed to support his child
without lawful excuse or without just cause is broader than determining whether he had
sufficient income to provide support”); Md Code Ann, Fam Law 10-203(a) (stating that


                                            43
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

“[a] parent may not willfully fail to provide for the support of his or her minor child”);
Miss Code Ann 97-5-3 (imposing felony liability for “[a]ny parent who shall desert or
wilfully neglect or refuse to provide for the support and maintenance of his or her child or
children”); NH Rev Stat Ann 639:4 (stating that “[a] person is guilty of non-support if
such person knowingly fails to provide support . . . which such person can provide”); NJ
Stat Ann 2C:24-5 (providing for criminal liability for a person who “willfully fails to
provide support which he can provide and which he knows he is legally obliged to
provide”); NY Penal Law 260.05(1) (providing for criminal liability for nonsupport for a
person who “fails or refuses without lawful excuse to provide support for such child
when he or she is able to do so”); State v McMillan, 10 NC App 734, 735-736; 180 SE2d
35 (1971) (stating that “‘the failure by a defendant to provide adequate support for his
child must be wilful, that is, he intentionally and without just cause or excuse does not
provide adequate support for his child according to his means and station in life, and this
essential element of the offense must be alleged and proved’”) (citation omitted); Okla
Stat tit 21, § 852 (imposing criminal liability for a parent who “willfully omits, without
lawful excuse, to furnish . . . child support”). Clearly, consideration of a parent’s ability
to pay, or legislative prescription of ability to pay as an element of the offense, does not
equate to providing an inability-to-pay defense. An element of ability to pay, as part of
the criminal charge itself, is not the same as an affirmative defense, whether based on an
inability to pay or something else.
102
    The dissent interprets our acknowledgment that a family court considers parents’
ability to pay when it sets a support obligation as dispositive evidence that the “obligor is
able to pay.” Post at 27. This inference, and the multiple other inferences that the dissent
makes from it, are not supported by a reasonable interpretation of our decision. That a
family court considers a parent’s ability to pay when setting a support obligation does not
mean, as the dissent suggests, that the support order is entered into evidence and rubber-
stamped as proof beyond a reasonable doubt that a defendant is guilty of felony
nonsupport. Nor does the admission of the support order in the criminal proceedings
undercut the presumption of innocence or shift the burden of proof to the defendant.
Rather, we have explained in detail that “the full panoply of constitutional protections
that inhere in any criminal prosecution” apply to criminal proceedings for nonsupport.
Supra at 36.



                                             44
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

103
      Post at 25.
104
    The dissent accuses the majority of relying “heav[il]y” on public policy, post at 25
n 58, but it is the dissent that has injected these policy concerns into the discussion by
asserting that our opinion is contrary to traditional notions of fairness and common sense.
Our principal analysis is not policy-based, but is based on the plain language of the
statute and the fact that there is no indication that the Legislature abrogated the common-
law defense of impossibility when it enacted the felony-nonsupport statute. Clearly, we
have tried to articulate what might have been the Legislature’s rationale for striking the
“refuse or neglect” language from the statute, not project what might constitute our own
policy preferences.
105
      Post at 24.
106
    If any explanation were needed for the Legislature’s decision to exercise its
undisputed authority to define felony nonsupport as a strict-liability crime and thereby
“regulate[] conduct under the state’s police power to promote the social good,” Quinn,
440 Mich at 187, it could be found in a report of a Michigan-based task force formed to
address “the need for better enforcement of the laws requiring parents to support their
own children . . . .” Underground Economy Task Force, The Underground Economy
(June 2010), p 8, available at <http://courts.michigan.gov/scao/resources/publications/


                                             45
       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

reports/UETF-2010.pdf> (accessed June 15, 2012). This task force, chaired by former
Justice and now Department of Human Services Director MAURA CORRIGAN, documents
“the sad truth that far too many parents now refuse to accept th[eir] inherent
responsibility to support their children.” Id. The numbers substantiating this “sad truth”
are staggering. Every year, “[f]ederal, state, territorial, and local governments spend $5.9
billion just to enforce parents’ inherent obligation to support their children.” Id. at 11. In
2010, the United States Department of Health and Human Services’ Office of Child
Support Enforcement reported that in Michigan more than 610,000 child support cases
had arrears due and calculated the total arrearage at $9.1 million. See Child Support
Enforcement FY 2010 Preliminary Report, <http://www.acf.hhs.gov/programs/cse/pubs/
2011/reports/preliminary_report_fy2010.html> (accessed June 15, 2012), Tables P-18
and P-20. Moreover, this total greatly underestimates the true arrearage because it does
not take into account how much additional child support parents would owe if they fully
and honestly disclosed their finances. See Underground Economy at 12.

      The Underground Economy Task Force report details the strain this serious social
problem places on children and the public, concluding:

              [W]hile the number of willfully neglected children has continued to
       increase, our governments’ ability to help them has declined. Those
       inversely correlated trends have created intolerable stresses for both
       children and governments. We no longer can afford—either financially or
       socially—to excuse parents who will not support their children. [Id. at 10
       (emphasis added).]

These considerations, which are completely ignored by the dissent, make clear that the
Legislature’s decision to define felony nonsupport as a strict-liability crime was perfectly
reasonable and that there is nothing remotely offensive to “traditional notions of fairness
and common sense” in the Legislature’s decision or in this Court’s exacting impossibility
defense.

107
   In light of the similarity between our language and that of the dissent, see summary in
note 93 of this opinion, it is unclear how the dissent can reasonably assert that our
impossibility standard fails to pass constitutional muster. Clearly, the dissent agrees with


                                             46
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


our conclusion that MCL 750.165 imposes strict liability. Yet the dissent asserts that
“[a]bility-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.” Post at 29.
However, ability to pay is not an element in Michigan’s nonsupport statute. Further, we
have, like the dissent, recognized that a criminal action for felony nonsupport does not
disturb the underlying support order that forms the basis of the criminal charge.
108
    We emphasize that the criminal action for felony nonsupport is not an opportunity to
revisit the terms of the underlying support order, a point with which the dissent agrees.
The amount of child support is determined in the civil proceeding, in which a parent’s
income and financial resources are considered. A parent who is honest and acts in good
faith from the outset, meets his or her support obligation, and, in the instance of changed
financial circumstances, timely moves for modification of the support order, is unlikely to
be charged with, much less found guilty of, felony nonsupport. Thus, the dissent’s
concern that the effect of our decision will be to create “debtors’ prisons” affecting those
other than the “willful, recalcitrant, obdurate, or deceitful,” post at 23, 27, is simply
unfounded. In any event, such a case is not before us today, and we need not speculate
regarding facts not presented. We have strived to provide guidance for avoiding criminal
punishment to parents whose financial circumstances change after their ability to pay has
been determined and a support order entered. Thus, the point that seems to have escaped
the dissent—that any defense to a charge of felony nonsupport must be assessed on the
basis of some consistent and articulable standard—was not overlooked by either the
legislatures that enacted the statutes the dissent cites or the defense we articulate here
today.
109
   The dissent’s view would also render meaningless a family court’s imputed potential
income determination. A child support obligation may be calculated based on imputed
income “when a parent is voluntarily unemployed or underemployed, or has an


                                             47
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.


unexercised ability to earn.” 2008 MCSF 2.01(G). Once the child support obligation is
set, and the parent chooses to continue avoiding comparable employment that he or she is
capable of performing (the very reason that income was imputed in the first place), the
parent can simply claim an “inability to pay” and escape criminal liability. The dissent’s
ill-advised scheme would have precisely the effect on children and society that the
Legislature sought to prevent by enacting a system of court-ordered parental support.
110
      Post at 25.



                                            48
                                    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.


                                                          Mary Beth Kelly
                                                          Robert P. Young, Jr.
                                                          Stephen J. Markman
                                                          Brian K. Zahra




                                              49
                           STATE OF MICHIGAN

                                   SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

             Plaintiff-Appellee,

v                                                           No. 141154

SELESA ARROSIEUR LIKINE,

             Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

             Plaintiff-Appellee,

v                                                           No. 141181

MICHAEL JOSEPH PARKS,

             Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

             Plaintiff-Appellee,

v                                                           No. 141513

SCOTT BENNETT HARRIS,

             Defendant-Appellant.


MARILYN KELLY, J. (dissenting).
      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


                                            1
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.




                                              2
        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.




1
 I find it noteworthy that those responsible for publishing Michigan’s statutes found it
appropriate to caption this provision in terms of penalizing a refusal to pay. See 2 Public
& Local Acts of Michigan (2004 Session), 2004 PA 570, p 2259 (“Refusing to support
wife or children”); see also MCLA 750.165 (“Refusal to pay support for former or
current spouse”) and MCLS 750.165 (“Refusing to support wife or children”).



                                             3
               (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.




2
    See US Const, Ams VI and XIV; Const 1963, art 1, §§ 13, 17, and 20.
3
    California v Trombetta, 467 US 479, 485; 104 S Ct 2528; 81 L Ed 2d 413 (1984).



                                               4
         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

4
    People v Ditton, 78 Mich App 610; 261 NW2d 182 (1977).
5
    When Ditton was decided, MCL 750.165 provided:

                 Where in any decree of divorce, or decree of separate maintenance
         granted in this state, or by order entered during the pendency of any such
         proceedings, if personal service is had upon the husband or upon the father
         of any minor child or children, under the age of 17 years, or such husband
         or father shall have entered an appearance in such proceedings either as
         plaintiff or defendant, the court shall order such husband to pay any amount
         to the clerk or friend of the court for the support of any wife or former wife
         who by reason of any physical or mental affliction is unable to support
         herself, or father to pay any amount to the clerk or friend of the court for
         the support of such 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: Provided, however, If at any time before sentence he shall enter into
         bond to the people of the state of Michigan, in such penal sum and with
         such surety or sureties as the court may fix, conditioned that he will comply
         with the terms of such order or decree, then the court may suspend sentence
         therein: Provided further, That upon failure of such person to comply with
         said undertaking he may be ordered to appear before the court and show
         cause why sentence should not be imposed, whereupon the court may pass
         sentence, or for good cause shown may modify the order and take a new
         undertaking and further suspend sentence as may be just and proper.
6
    Ditton, 78 Mich App at 614-615.


                                               5
         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

7
    Id. at 617, quoting Reed v Reed, 53 Mich App 625, 627; 220 NW2d 199 (1974).
8
    Id. at 617.
9
    See 1999 PA 152.



                                              6
         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

10
     Senate Bill Analysis, HB 4826, October 12, 1999, p 1.
11
   The majority claims that I miss the point that “any defense to a charge of felony
nonsupport must be assessed on the basis of some . . . articulable standard[, which] was
not overlooked by . . . the legislatures that enacted the statutes [I] cite[] . . . .” Ante at 47
n 108 (emphasis omitted). It is unclear whether the majority is referring to (1) my
citation of every other state’s consideration of a defendant’s inability to pay in note 52 of
this opinion or (2) the current and former versions of Michigan’s statute. If the majority
is referring to every other state’s consideration of inability to pay, then it must
acknowledge that those states have decided that inability to pay is a consistent and
articulable standard. If the majority is referring to the current and former versions of
Michigan’s nonsupport statutes, then its claim is simply inaccurate. Neither the current
nor the former version of MCL 750.165 has ever expressly provided a defense to a charge
of felony nonsupport.
12
     Ford Motor Co v City of Woodhaven, 475 Mich 425, 439-440; 716 NW2d 247 (2006).
13
  The majority observes that it holds the doctrine of legislative acquiescence in disfavor.
Yet it cannot deny that the Legislature made no effort to alter Ditton’s holding for 22
years. Moreover, the doctrine of legislative acquiescence has established roots in both
United States Supreme Court and Michigan jurisprudence. See, e.g., Shepard v United
States, 544 US 13, 23; 125 S Ct 1254; 161 L Ed 2d 205 (2005); Craig v Larson, 432
Mich 346, 353; 439 NW2d 899 (1989); Wikman v City of Novi, 413 Mich 617, 638; 322
NW2d 103 (1982); In re Clayton Estate, 343 Mich 101, 106-107; 72 NW2d 1 (1955).


                                               7
          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


The majority cannot deprive the minority of the tools with which judges typically and
traditionally engage in statutory interpretation. Its preferred interpretive methods do not
bind other members of the Court. See People v Williams, 491 Mich 164, 194 n 31; 814
NW2d 270 (2012) (MARILYN KELLY, J., dissenting).
14
     People v Adams, 262 Mich App 89; 683 NW2d 729 (2004).
15
     Id. at 100.
16
   Id. at 97, citing MCL 750.165(3), now MCL 750.165(4). See 2004 PA 570. The
majority posits that my analysis would return the law to its state before the Legislature
enacted 1999 PA 152, “contrary to the Legislature’s clear intent.” Ante at 40. This
statement masks the fact that no statutory evidence exists that the Legislature intended to
remove the inability-to-pay defense that Ditton recognized. Nor is there language in
MCL 750.165 or in any other statute that supports the majority’s impossibility-to-pay
defense. By sleight of pen, the majority parlays its reading of MCL 750.165 and of the
Legislature’s intent into support for an impossibility-to-pay defense. Thus, contrary to
the majority’s claim otherwise, there can be no analysis “based on the plain language of
the statute,” ante at 45 n 104, because MCL 750.165 provides no defense to a charge of
felony nonsupport.



                                              8
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




17
   Rather than limit its discussion to the merits, the majority claims that my analysis of
the Legislature’s acquiescence to Ditton is merely my “policy preference.” Ante at 40
n 96. It argues that, after the Court of Appeals’ opinion in Adams, the doctrine of
legislative acquiescence could also lead one to conclude that the Legislature intended to
eliminate inability to pay as a defense. This is incorrect. Adams effectively precluded all
defenses to nonsupport charges, including the impossibility-to-pay defense now
sanctioned by the majority, and it is thus unconstitutional. It cannot be assumed that the
Legislature agreed with an unconstitutional decision. The doctrine of legislative
acquiescence does not fit with the Adams decision.
18
  People v Thousand, 465 Mich 149, 158; 631 NW2d 694 (2001) (citation omitted). For
example, a factual impossibility occurs when a pickpocket picks an empty pocket. See
Black’s Law Dictionary (9th ed), p 824. This type of impossibility has never been
recognized as a defense to a charge of attempt.



                                            9
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


19
  Thousand, 465 Mich at 158-159. For example, a pure legal impossibility occurs when
“a person goes hunting while erroneously believing that it is not hunting season.”
Black’s Law Dictionary (9th ed), p 824.
20
  Thousand, 465 Mich at 159. For example, a hybrid legal impossibility exists when an
individual attempts to bribe a juror, but chooses someone to bribe who is not on the jury.
21
     Id., quoting Dressler, Understanding Criminal Law (1st ed), § 27.07[B], p 349.
22
   The majority criticizes my discussion of factual and legal impossibility in which I
observe that those defenses apply only to crimes of attempt. In doing so, the majority
underscores my point: its newly fashioned impossibility-to-pay defense to a charge of
felony nonsupport could be confused with the impossibility defenses that have
historically applied in a distinctly different setting.
23
     Port Huron v Jenkinson, 77 Mich 414; 43 NW 923 (1889).



                                              10
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




24
     Id. at 419.
25
     Id. at 420 (emphasis added).



                                                11
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




26
     Id.
27
   Similarly, the majority’s reliance on ancient decisions of English courts in support of
its impossibility-to-pay defense is of questionable value. First, those decisions were
rendered centuries ago in courts having no authority over this Court. Second, they are
easily distinguishable from the case before us because they dealt with impossibility in the
truest sense of the word. See Stockdale v Coulson, 3 All ER 154 (1974) (failing to attach
documents that never existed), and Regina v Bamber, 5 QB 279, 287; 114 ER 1254
(1843) (comment by Lord Denman, C.J.) (failing to build a road where there was no
land). Regina v Hogan, 169 ER 504; 2 Den 277 (1851), is also inapposite. That case
considered a mother criminally charged with abandonment after momentarily leaving her
child in order to procure food for him. Closer scrutiny of Hogan’s holding reveals that
the defense it sanctioned is more appropriately characterized as inability to pay than
impossibility to pay. The court specifically noted that there was not an extensive inquiry
into whether the mother had the means of supporting the child—not whether it was
impossible for her to have supported him. Indeed, that opinion does not contain the word
“impossible.” In sum, none of these archaic cases furnishes a precedential basis for the
majority’s narrow impossibility-to-pay defense.



                                              12
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


28
  Ditton, 78 Mich App at 617 (finding “no meaningful distinction between [MCL
750.165] and the statute found unconstitutional in Kentucky” for lacking an inability-to-
pay defense).
29
   The majority earnestly insists that this defense would “permit parents who deliberately
refuse to pay child support to shirk their responsibilities to their children and manipulate
the criminal justice system . . . .” Ante at 47. This is utterly untrue. As in every other
jurisdiction that considers a defendant’s inability to pay, trial courts would weigh the
evidence, if any, to determine whether the defendant is able to pay. If the trier of fact
determined that the defendant was able to pay, the defense would not apply. It would not
enable a defendant to shirk his or her support obligation or otherwise manipulate the
criminal justice system. I fully agree with the majority that support obligors must be held
responsible for satisfying their obligations. This belief, however, does not undermine the
legitimacy of the inability-to-pay defense or justify the majority’s overly restrictive
standard. In every other state, those with support obligations are not able to refuse to
pay, shirk their responsibilities, or manipulate the criminal justice system simply by
raising an inability-to-pay defense.
30
     People v Jackson, 483 Mich 271; 769 NW2d 630 (2009).



                                              13
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]




31
     Id. at 275.
32
     Id.
33
     People v Music, 428 Mich 356; 408 NW2d 795 (1987).
34
     Id. at 363.
35
     MCL 750.161(1) (emphasis added).



                                                 14
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

36
     Emphasis added.
37
     Emphasis added.
38
     See, e.g., Beverly v Beverly, 112 Mich App 657, 661; 317 NW2d 213 (1981).
39
     Zablocki v Redhail, 434 US 374; 98 S Ct 673; 54 L Ed 2d 618 (1978).



                                            15
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

40
     Id. at 394 (Stewart, J., concurring).
41
     Id. at 400 (Powell, J., concurring).
42
     Id.
43
     Id. at 400-401, 403.
44
     Bearden v Georgia, 461 US 660; 103 S Ct 2064; 76 L Ed 2d 221 (1983).



                                              16
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




45
     Id. at 661-662.
46
     Id. at 672-673.
47
   Id. at 669, citing Zablocki, 434 US at 400 (Powell, J., concurring) (emphasis added).
The majority cites Bearden in support of its impossibility-to-pay defense. But nowhere
in Bearden does the word “impossible” appear, nor any derivation of it. Indeed, the
majority opinion is internally inconsistent, as it relies on Bearden’s “sufficient bona fide
efforts” standard for guidance in one place, but elsewhere suggests that “‘sufficient bona
fide efforts . . .’ [to repay a support obligation] . . . standing alone will not necessarily
establish an impossibility defense . . . .” Compare ante at 29 with ante at 30-31.
Furthermore, this Court cited Bearden in support of its implementation of an ability-to-
pay analysis in Jackson. See Jackson, 483 Mich at 279-280. In any event, when the
principles from Bearden are applied, an inability-to-pay defense would not “permit
parents who deliberately refuse to pay child support to shirk their responsibilities to their
children and manipulate the criminal justice system . . . .” Ante at 47. This is because an
inability-to-pay defense would not provide relief to a parent who “willfully refused to pay
or failed to make sufficient bona fide efforts legally to acquire the resources to pay . . . .”
Bearden, 461 US at 672.



                                              17
               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]




48
  I agree with the majority that the willful, recalcitrant, obdurate, or deceitful should not
escape felony nonsupport charges.
49
  See Bearden, 461 US at 662. I believe the United States Supreme Court wisely cast
the consideration of a defendant’s inability to pay in broad terms in recognition of the
fact that the determination will generally require a fact-specific inquiry.
50
     See Zablocki, 434 US at 400 (Powell, J., concurring).
51
  Ditton, 78 Mich App at 616, quoting Commonwealth v O’Harrah, 262 SW2d 385, 388
(Ky, 1953).



                                              18
        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

52
   See Ala Code 13-A-13-4 (“A man or woman commits the crime of nonsupport if he or
she intentionally fails to provide support which that person is able to provide and which
that person knows he or she is legally obligated to provide to a dependent spouse or child
less than 19 years of age.”); Alas Stat 11.51.120(a) and (f)(3) (“A person commits the
crime of criminal nonsupport if, being a person legally charged with the support of a
child the person knowingly fails, without lawful excuse, to provide support for the
child. . . . [W]ithout lawful excuse’ means having the financial ability to provide
support . . . .”); Ariz Rev Stat Ann 25-511B (“It is an affirmative defense to a charge of
[failure to provide for a child] that the defendant . . . was unable to furnish reasonable
support.”); Nelke v State, 19 Ark App 292, 294; 720 SW2d 719 (1986) (“In order to make
out the offense [of failure to support a wife or child], the State must show a willful or
negligent failure to provide, not a mere failure because of inability.”); Cal Penal Code
270 (“The court, in determining the ability of the parent to support his or her child, shall
consider all income, including social insurance benefits and gifts.”); Colo Rev Stat 14-6-
101 (“It shall be an affirmative defense . . . to a prosecution [for felony nonsupport] that
owing to physical incapacity or other good cause the defendant is unable to furnish the
support, care, and maintenance required by this section.”); Conn Gen Stat 53-304(a)
(“Any person who neglects or refuses to furnish . . . support to [a spouse or child] . . .
shall be deemed guilty of nonsupport . . . unless . . . the person is unable to furnish such
support.”); Del Code Ann tit 11, § 1113(d) (“In any prosecution for criminal nonsupport
or aggravated criminal nonsupport, it is an affirmative defense that the accused was
unable to pay or provide support . . . .”); DC Code 46-225.02(d) (“[F]ailure to pay child
support, as ordered, shall constitute prima facie evidence of a willful violation. This
presumption may be rebutted if the obligor was incarcerated, hospitalized, or had a


                                            19
disability during the period of nonsupport.”); Fla Stat 827.06(2) (“Any person who
willfully fails to provide support which he or she has the ability to provide to a child or a
spouse whom the person knows he or she is legally obligated to support commits a
misdemeanor of the first degree . . . .”); Elam v State, 138 Ga App 432, 432; 226 SE2d
290 (1976) (“[In convicting the defendant of] wilfully and voluntarily abandoning his
minor children . . . the trial court erroneously ruled out some of defendant’s evidence as
to his financial condition which tended to negate the element of willfulness . . . .”);
Hawaii Rev Stat 709-903 (“A person commits the offense of persistent nonsupport if the
person knowingly and persistently fails to provide support which the person can provide
and which the person knows the person is legally obliged to provide to a spouse, child, or
other dependent.”); State v Shaw, 96 Idaho 897, 900; 539 P2d 250 (1975) (“[W]hether the
state . . . has overcome by proof beyond a reasonable doubt his ability to provide or
support and the wilful nature of his non-support or omission, are all factual issues for
resolution by the jury.”); 750 Ill Comp Stat 16/15(a)(1) (“A person commits the offense
of failure to support when he or she . . . willfully, without any lawful excuse, refuses to
provide for the support or maintenance of his or her spouse . . . or . . . his or her child or
children . . . and the person has the ability to provide the support.”); Ind Code 35-46-1-
5(d) (“It is a defense [to charges of nonsupport of a dependent child] that the accused
person was unable to provide support.”); Iowa Code 726.5 (“A person, who being able to
do so, fails or refuses to provide support for the person’s child or ward under the age of
eighteen years for a period longer than one year or in an amount greater than five
thousand dollars commits [felony] nonsupport.”); State v Krumroy, 22 Kan App 2d 794,
800; 923 P2d 1044 (1996) (“[The defendant] would be guilty of failing to provide support
without lawful excuse if a jury concluded that he had the ability to earn a livelihood and
did not do all that he could or should have done under the circumstances.”); Rogers v
Commonwealth, 321 SW2d 779, 781 (Ky, 1959) (“Physical disability and financial
inability have been recognized as defenses to a prosecution under the child desertion
statute.”); La Rev Stat Ann 14:74B(1) (“Physical incapacity which prevents a person
from seeking any type of employment constitutes a defense to the charge of criminal
neglect of family.”); Me Rev Stat tit 17-A, § 552 (“A person is guilty of nonsupport . . . if
he knowingly fails to provide support which he is able by means of property or capacity
for labor to provide and which he knows he is legally obliged to provide to a spouse,
child or other person . . . .”); Md Code Ann, Fam Law 10-203(a) (“A parent may not
willfully fail to provide for the support of his or her minor child.”); Mass Gen Laws ch
273, § 1(4) (A spouse or parent shall be guilty of a felony if he or she “wilfully and while
having the financial ability or earning capacity to have complied, he fails to comply with
an order or judgment for support which has been entered . . . .”); Minn Stat 609.375(8)
(“It is an affirmative defense to criminal liability [for nonsupport of spouse or child] if
the defendant proves by a preponderance of the evidence that the omission and failure to
provide care and support were with lawful excuse.”); Miss Code Ann 97-5-3 (“Any
parent who shall desert or wilfully neglect or refuse to provide for the support and


                                             20
maintenance of his or her child or children . . . shall be guilty of a felony . . ..”); State v
Akers, 287 SW2d 370, 372 (Mo Ct App, 1956) (“If through no action of his own he
lacked the ability to support them, [the defendant’s] failure to do so was not without good
cause and the evidence is insufficient to sustain the conviction.”); Mont Code Ann 45-5-
621(1) (“A person commits the offense of nonsupport if the person fails to provide
support that the person can provide and that the person knows the person is legally
obliged to provide to a spouse, child, or other dependent.”); State v Bright, 238 Neb 348,
352; 470 NW2d 181 (1991) (“The determination of whether a defendant has the ability to
pay child support in order to determine whether the failure to do so was intentional is a
question of fact left to the jury.”); Epp v State, 107 Nev 510, 513-514; 814 P2d 1011
(1991) (“[T]he State could establish willfulness by showing that [the defendant] . . . had
the ability to generate income . . . . Obviously, the law does not contemplate punishing a
person for failing to do a thing which he cannot do.”) (quotation marks and citation
omitted); NH Rev Stat Ann 639:4 (“A person is guilty of non-support if such person
knowingly fails to provide support which such person is legally obliged to provide and
which such person can provide to a spouse, child or other dependent.”); NJ Stat Ann
2C:24-5 (“A person commits a crime . . . if he willfully fails to provide support which he
can provide and which he knows he is legally obliged to provide to a spouse, child or
other dependent.”); NM Stat 30-6-2 (“Abandonment of dependent consists of a person
having the ability and means to provide for his spouse or minor child’s support and
abandoning or failing to provide for the support of such dependent.”); NY Penal Law
260.05(2) (A person is guilty of nonsupport of a child when “he or she knowingly fails or
refuses without lawful excuse to provide support for such child when he or she is able to
do so . . . .”); State v McMillan, 10 NC App 734, 735-736; 180 SE2d 35 (1971) (“‘In a
prosecution [for failure to support a child,] the failure by a defendant to provide adequate
support . . . must be wilful, that is, he intentionally and without just cause or excuse does
not provide adequate support for his child according to his means and station in
life . . . .’”) (citation omitted); ND Cent Code 12.1-37-01(4) (“It is an affirmative defense
to a charge [of failure to support a child] that the defendant suffered from a disability
during the periods an unpaid child support obligation accrued . . . .”); Ohio Rev Code
Ann 2919.21(D) (“It is an affirmative defense to a charge of failure to provide adequate
support . .. that the accused was unable to provide adequate support or the established
support but did provide the support that was within the accused’s ability and means.”);
Okla Stat tit 21, § 852(A) (“[A]ny parent, guardian, or person having custody or control
of a child . . . who willfully omits, without lawful excuse, to furnish . . . child support . . .
is guilty of a misdemeanor . . . .”); State v Timmons, 75 Or App 678, 681; 706 P2d 1018
(1985) (“It is commonly understood that a ‘lawful excuse’ [for failure to pay support]
refers to some condition, not of the defendant’s own making, which prevents the
defendant from being able to provide support.”); 23 Pa Cons Stat 4354(a) (“An individual
who willfully fails to comply with a support order of a court of this Commonwealth when
the individual has the financial ability to comply with the support order commits an


                                               21
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


offense.”); RI Gen Laws 11-2-1.1(a) (“Every person who is obligated to pay child
support . . . and who shall willfully thereafter, having the means to do so, fail to pay . . .
shall be guilty of a felony . . . .”); SC Code Ann 63-5-20(A) (“Any able-bodied person
capable of earning a livelihood who shall, without just cause or excuse, abandon or fail to
provide reasonable support to his or her spouse or to his or her . . . child dependent upon
him or her shall be deemed guilty of a misdemeanor . . . .”); SD Codified Laws 25-7-16
(“A parent of a minor child who intentionally omits without lawful excuse to furnish . . .
[child support] is guilty of a . . . misdemeanor.”); Tenn Code Ann 39-15-101(a) (“A
person commits the crime of nonsupport who fails to provide support which that person is
able to provide and knows the person has a duty to provide to a minor child or to a child
or spouse . . ..”); Tex Penal Code Ann 25.05(d) (“It is an affirmative defense to
prosecution [for criminal nonsupport] that the actor could not provide support for the
actor’s child.”); Utah Code Ann 76-7-201(5)(a) (“[I]t is an affirmative defense [to
criminal nonsupport charges] that the accused is unable to provide support.”); State v
Thibedeau, 95 Vt 164; 113 A 873 (1921) (“Where, as here, the charge is a willful neglect
to support, the pecuniary ability of the respondent [to pay] is material.”); Painter v
Commonwealth, 140 Va 459; 124 SE 431, 432 (1924) (“That the absolute inability of the
accused to contribute anything to the support of his family should be held to bar the
prosecution, at least temporarily, is apparent from a consideration of the act in its
entirety, and its avowed purpose.”); Wash Rev Code 26.20.035 (“[A]ny person who is
able to provide support . . . and who . . . [w]illfully omits to provide necessary food,
clothing, shelter, or medical attendance to a child dependent upon him or her . . . is guilty
of the crime of family nonsupport.”); W Va Code 61-5-29(1) (“A person who . . .
[r]epeatedly and willfully fails to pay his or her court-ordered support which he or she
can reasonably provide and which he or she knows he or she has a duty to provide to a
minor . . . is guilty of a misdemeanor . . . .”); Wis Stat 948.22(6) (“[A]ffirmative defenses
[to failure-to-support charges] include but are not limited to inability to provide child,
grandchild or spousal support.”); Wyo Stat Ann 20-3-101(c) (“It is an affirmative defense
to a charge [of desertion] that the person was unable to provide adequate support but did
provide such support as was within that person’s ability and means.”). (Each emphasis
added.)
53
   Contrary to the majority’s assertion, it is inconsequential at what stage of a criminal
proceeding other states consider a defendant’s inability to pay. Some states consider it as
an affirmative defense, some as a traditional defense, and some require proof of ability to
pay as an element of a nonsupport charge. The fact remains that it is a defendant’s
inability to pay that must be accounted for—not whether it is impossible to pay. No other


                                             22
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.

state recognizes impossibility to pay or impossibility as an affirmative or traditional
defense to, or as an element of, a nonsupport charge.
54
   The United States Supreme Court has explicitly prohibited the practice of debtors’
prisons. See, e.g., Williams v Illinois, 399 US 235, 241-242; 90 S Ct 2018; 26 L Ed 2d
586 (1970) (“[O]nce the State has defined the outer limits of incarceration necessary to
satisfy its penological interests and policies, it may not then subject a certain class of
convicted defendants to a period of imprisonment beyond the statutory maximum solely
by reason of their indigency.”); Tate v Short, 401 US 395, 398; 91 S Ct 668; 28 L Ed 2d
130 (1971) (“[T]he Constitution prohibits the State from imposing a fine as a sentence
and then automatically converting it into a jail term solely because the defendant is
indigent and cannot forthwith pay the fine in full.”) (quotation marks and citation
omitted).
55
     US Const, Am XIV; Const 1963, art 1, § 2.



                                            23
       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


56
   See ante at 31 (“[A] defendant must explore and eliminate all the reasonably possible,
lawful avenues of obtaining the revenue required to comply with the support order.”);
ante at 31 (“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.”) (emphasis omitted); and ante at 32 n 75 (requiring “genuine” and
“tru[e]” impossibility); see also ante at 49 (requiring “exceptional circumstances” to
establish impossibility). The majority further injects confusion into its analysis by, at
various points, labeling the requisite level of demonstrated impossibility “genuine” or
“true.”



                                            24
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

57
  See People v Vaughn, 491 Mich ___, ___; ___ NW2d ___ (2012), issued July 9, 2012
(Docket No. 142627) (CAVANAGH, J., concurring), slip op at 9.
58
   The majority’s heavy reliance on public policy to support its impossibility-to-pay
defense is surprising given the past reluctance of two members to rely on policy
considerations when making precedent. In Hanson v Mecosta Co Rd Comm’rs, 465 Mich
492, 504; 638 NW2d 396 (2002), then Justice YOUNG and Justice MARKMAN stated that
“[the Court’s] function is not to . . . independently assess what would be most fair or just
or best public policy.”

       Assuming that public policy is relevant, the majority’s discussion raises
unanswered questions. For instance, does the majority consider the high cost borne by
taxpayers for imprisoning felons? Does it consider how those costs will increase to the
extent we imprison a greater number of those who fail to make support payments? A
recent Pew Center report shows that Michigan already has one of the nation’s highest
incarceration rates and is one of only four states to spend more on prisons than higher
education. The Pew Center on the States, Time served: The high cost, low return of
longer prison terms. June 2012. Available at: <http://www.pewstates.org/uploadedFiles/
PCS_Assets/2012/Prison_Time_Served.pdf> (accessed July 3, 2012); see also State of


                                            25
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

Michigan, Executive Budget, Fiscal Years 2013 and 2014, pp A-5, B-15. February 9,
2012. Available at: <http://www.michigan.gov/documents/budget/EB1_376247_7.pdf>
(accessed July 3, 2012). Furthermore, it is estimated that Michigan will spend more than
$37,000.00 per inmate per year housed in its prisons during 2013 and 2014. Id. at B-15.
Does the majority weigh the opportunity cost to society when those imprisoned cannot
earn wages and make some contribution toward a support obligation? Does it consider
the dismantling of family bonds that results from imprisoning a delinquent parent who
would otherwise still provide emotional support, love, or care to his or her family?
59
     Ante at 35.



                                               26
       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



60
   Patterson, Civil contempt and the indigent child support obligor: The silent return of
debtor’s prison. 18 Cornell J L & Pub Pol 95, 120-121 (2008) (quotation marks and
citations omitted).



                                           27
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.




61
  See, e.g., United States v Mandycz, 447 F3d 951, 962 (CA 6, 2006) (“Criminal cases
offer many due process protections . . . that civil proceedings . . . do not.”). The United
States Supreme Court has also recognized “the fundamental proposition that criminal
penalties may not be imposed on someone who has not been afforded the protections that
the Constitution requires of such criminal proceedings . . . .” Hicks ex rel Feiock v
Feiock, 485 US 624, 632; 108 S Ct 1423; 99 L Ed 2d 721 (1988).
62
   It also creates enormous confusion to institute an impossibility-to-pay defense in a
criminal proceeding, when, in the related civil action, the family court used an ability-to-
pay standard. See, e.g., MCL 552.23(1).
63
  See, e.g., Blue Cross Blue Shield of Mich v Governor, 422 Mich 1, 89; 367 NW2d 1
(1985) (“It is generally well established that issues of fact in civil cases are to be
determined in accordance with the preponderance of the evidence . . . .”) (citations
omitted).
64
     See 2008 MCSF 2.01(G).



                                             28
       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



65
   Sullivan v Louisiana, 508 US 275, 277-278; 113 S Ct 2078; 124 L Ed 2d 182 (1993)
(“The prosecution bears the burden of proving all elements of the offense charged and
must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to
establish each of those elements. This beyond-a-reasonable-doubt requirement . . .
applies in state as well as federal proceedings.”) (citations omitted); In re Winship, 397
US 358, 363-364; 90 S Ct 1068; 25 L Ed 2d 368 (1970) (“[A] society that values the
good name and freedom of every individual should not condemn a man for commission
of a crime when there is reasonable doubt about his guilt.”).
66
   See Waknin v Chamberlain, 467 Mich 329, 335-336; 653 NW2d 176 (2002)
(“[D]efendant was found guilty beyond a reasonable doubt—a standard of proof granting
him protection greater than the preponderance of the evidence standard in the civil
case . . . .”).
67
   This analysis does not disturb the legitimacy of the civil court’s underlying support
order. That is, a defendant cannot relitigate in a criminal case the amount of a support
order. He or she remains liable for that amount irrespective of the outcome of the
criminal proceeding.



                                            29
“[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

68
     Ante at 2.
69
     Ante at 3.
70
     Ante at 3; see also ante at 50.
71
   McCormick v Carrier, 487 Mich 180, 209; 795 NW2d 517 (2010) (“[T]he . . .
majority’s ‘interpretation’ of the plain language of MCL 500.3135(7) was a chilling
reminder that activism comes in all guises, including so-called textualism.”) (citation and
quotation marks omitted).
72
   The majority cannot rely on the child support statutes in support of its analysis. Those
statutes govern civil proceedings in which the amount of a support award is set. They are
irrelevant to criminal proceedings. MCL 750.165 is the only statute that concerns a
criminal nonsupport charge.



                                               30
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.


                                                        Marilyn Kelly
                                                        Michael F. Cavanagh
                                                        Diane M. Hathaway




73
     Reed, 53 Mich App at 627.



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