PEOPLE OF MI V VITO MONACO
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED FEBRUARY 1, 2006
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 126852
VITO MONACO,
Defendant-Appellant.
_______________________________
PER CURIAM.
In this case, we are asked to decide
whether a violation of the statute that makes it a felony to
refuse to pay court-ordered support for a former or current
spouse or for a child, MCL 750.165(1), is subject to the
ten-year period of limitations in MCL 600.5809(4) or the
six-year “catch-all” period of limitations in MCL 767.24(5).
We are also asked to decide whether a violation of this
statute constitutes a continuing offense.
We affirm the Court of Appeals conclusion that a charge
of felony nonsupport is subject to the six-year period of
limitations
1
the
of
MCL
767.24(5).1
We
reject
the
Court
of
The Court of Appeals opinion cites MCL 767.24(4) as
“catch-all” provision.
In 2004, the Legislature
Appeals conclusion that a violation of MCL 750.165(1) is a
continuing offense.
We thus overrule People v Westman, 262
Mich App 184; 685 NW2d 423 (2004),2 to the extent that it is
inconsistent with our decision in this case.
Defendant
was
charged
with
criminal
nonsupport
after the six-year limitations period expired.
well
The Court of
Appeals thus erred in affirming the trial court’s denial of
defendant’s motion to dismiss the charge.
Accordingly, we
affirm in part and reverse in part the Court of Appeals
judgment.
(2004).
People v Monaco, 262 Mich App 596; 686 NW2d 790
We remand this case to the trial court for entry of
an order granting defendant’s motion to dismiss the charge.
I
On August 20, 1984, defendant was ordered to pay child
support for his two minor children under a default judgment
of divorce.
The order required
that the Defendant shall pay to the Friend of the
Court for the County of Macomb to be transmitted
to the Plaintiff for the support and maintenance
of the minor children of the parties, the sum of
$43.44 per week per child, for each of the two (2)
minor children . . . until each of the said
children have attained the age of eighteen or
until further Order of this Court.
redesignated subsections 4, 5, and 6.
MCL 767.24(5) now
provides the catchall limitations period.
2
In Westman, supra at 188-189, the Court of Appeals
held that a violation of MCL 750.165 is a continuing
offense.
The defendant in Westman did not file an
application for leave to appeal in this Court.
2
Defendant’s
1994.
In
youngest
December
child
2002,
turned
eighteen
defendant
March
charged
was
in
with
violating MCL 750.165(1), which provides3:
If the court orders an individual to pay
support for the individual’s former or current
spouse, or for a child of the individual, and the
individual does not pay the support in the amount
or at the time stated in the order, the individual
is guilty of a felony punishable by imprisonment
for not more than 4 years or by a fine of not more
than $2,000.00, or both. [Emphasis supplied.]
The
statute
does
not
contain
an
express
limitation
of
actions provision.
At defendant’s preliminary examination, the prosecution
presented testimony that defendant’s child support arrearage
amounted
to
$57,556.31,
and
that
defendant
had
made
no
payments on the account since November 2001.
Defendant’s
arrearage
and
included
both
unpaid
child
Independence Agency (FIA) surcharges.
1996,
a
biannual
surcharge
delinquent account.
also
support
Family
Commencing in January
attached
to
defendant’s
The trial court bound defendant over,
concluding that the judgment was “subject to the enforcement
of the criminal sanctions.”
3
MCL 750.165(1) was amended by the Legislature
effective November 3, 1999. “Under the amended version of
MCL 750.165, evidence that an individual refused or
neglected to pay child support and left the state is no
longer necessary to establish felony failure to pay child
support.” Westman, supra at 187.
3
Defendant moved to dismiss the charge or quash the
bindover, arguing that the criminal nonsupport charge was
time-barred under the six-year limitations period contained
in MCL 767.24(5), the catchall statute of limitations for
crimes
767.24.
not
otherwise
specifically
provided
for
in
MCL
Defendant also argued that his prosecution under
the amended statute violates the ex post facto clauses of
the United States and Michigan constitutions.
US Const, art
I, § 10, cl 1; Const 1963, art 1, § 10.
The trial court denied defendant’s motion.
The court
ruled that the charge was not time-barred, relying on the
ten-year period of limitations in MCL 600.5809(4).
That
statute provides:
For an action to enforce a support order that
is enforceable under the support and parenting
time enforcement act, Act No. 295 of the Public
Acts of 1982, being sections 552.601 to 552.650 of
the
Michigan
Compiled
Laws,
the
period
of
limitations is 10 years from the date that the
last support payment is due under the support
order regardless of whether or not the last
payment is made.
The
Court
of
Appeals
affirmed
decision on different grounds.
the
trial
court’s
The panel held that the
trial court erred in concluding that the matter was governed
by the ten-year limitations period found in MCL 600.5809(4)
because
that
statute
pertains
to
civil
actions
for
collection on monetary obligations, not to criminal actions.
Instead,
the
panel
concluded
4
that
the
crime
of
felony
nonsupport is subject to the six-year period of limitations
found in MCL 767.24(5).
The panel then held that defendant’s failure to pay the
arrearage of his court-ordered child support constitutes a
continuing violation of MCL 750.165(1), because the courtordered amount is both increased and reaffirmed every six
months when the surcharge for nonpayment is added to the
support arrearage.
Expanding on the ruling in Westman,
supra, in which the Court held that a violation of MCL
750.165(1) constitutes a continuing crime, the panel held:
[A] violation may be continuing under either
the “amount owed theory” or the “time ordered
theory.”
Under the “amount owed theory,” the
violation continues as long as an ordered support
goes unpaid.
The amount ordered is at the same
time increased and reaffirmed each time the
surcharge is added.
For this reason, an “amount
owed” violation may continue even beyond the
child's eighteenth birthday.
Under the “time
ordered theory,” the defendant violates MCL
750.165 when he fails to make the weekly support
payment. The defendant also violates MCL 750.165
at the time each surcharge is added to the account
and, at the same time, becomes due and owing.
[Monaco, supra at 606-607.]
Applying an “amount owed” continuing violation theory,
the
Court
limitations
defendant
arrearage.
of
of
Appeals
on
never
the
began
held
that
the
statutory
felony-nonsupport
to
run
because
period
charge
of
of
against
defendant’s
The panel thus affirmed the trial court’s denial
defendant’s
motion
to
dismiss
charge or quash the bindover.
5
the
felony-nonsupport
II
“In reviewing a district court’s decision to bind over
a defendant, the lower court’s determination regarding the
sufficiency of the evidence is reviewed for an abuse of
discretion, but the lower court’s rulings based on questions
of law are reviewed de novo.”
People v Schaefer, 473 Mich
418, 427; 703 NW2d 774 (2005).
III
The first issue is the limitations period applicable to
violations of MCL 750.165(1).
Appeals
that
the
We concur with the Court of
appropriate
limitations
period
for
violations of MCL 750.165 is contained in MCL 767.24(5)4 and
adopt its analysis appearing at 262 Mich App 601-603:
MCL 600.5809(4) more specifically addresses
support orders:
“For an action to enforce a support order
that
is
enforceable
under
the
support
and
parenting time enforcement act, Act No. 295 of the
Public Acts of 1982, being sections 552.601 to
552.650 of the Michigan Compiled Laws, the period
of limitations is 10 years from the date that the
last support payment is due under the support
order regardless of whether or not the last
payment is made.”
But the statute as a whole clearly applies
only to civil actions, not criminal charges.
If
4
Our
conclusion
that
the
six-year
period
of
limitations in MCL 767.24(5) applies to violations of MCL
750.165 is in no way intended to alter or weaken the tenyear period of limitations in MCL 600.5809(4), because, as
stated, the latter statute applies to civil claims for
collection on monetary obligations, not to criminal actions.
6
the language of a statute is clear, no further
analysis is necessary or allowed to expand what
the Legislature clearly intended to cover. People
v Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002).
MCL 600.5809 sets forth a ten-year period of
limitations for civil claims seeking enforcement
and
collection
of
a
noncontractual
money
obligation.
It does not identify any criminal
charges whatsoever.
Even MCL 600.5809(2), which
applies in the criminal context, applies only to
civil forfeiture actions based on a penal statute.
MCL 600.5809(4) clearly identifies actions brought
under the support and parenting time act and makes
no reference at all to criminal charges, let alone
the charge of felony nonsupport.
Further,
although the felony-nonsupport charge is related
to an order of support pursuant to the support and
parenting time act, it is a distinct criminal
action that is not covered by MCL 600.5809.
The appropriate statutory limitations period
is set forth in MCL 767.24[(5)].
MCL 767.24
generally identifies . . . different limitations
periods for . . . different crime categories:
* * *
“[(5)] All other indictments shall be found
and filed within 6 years after the offense is
committed. [Emphasis added.]”
Because MCL 750.165 is not identified in
[other subsections of the statute], it necessarily
falls under subsection [5], which unambiguously
identifies “all other indictments.”
It is a
settled rule of statutory construction that,
unless otherwise defined in a statute, statutory
words or phrases are given their plain and
ordinary meanings.
MCL 8.3a; People v Libbett,
251 Mich App 353, 365-366; 650 NW2d 407 (2002).
“There is no broader classification than the word
‘all.’
In its ordinary and natural meaning, the
word ‘all’ leaves no room for exceptions.” Skotak
v Vic Tanny Int’l, Inc, 203 Mich App 616, 619; 513
NW2d 428 (1994).
IV
7
Defendant was charged with criminal nonsupport under
MCL 750.165(1) more than eight years after his court-ordered
support
obligation
ended.
Defendant’s
prosecution
is,
therefore, time-barred unless a violation of MCL 750.165(1)
constitutes an offense that continues until an individual
has fully satisfied the monetary support obligation, i.e.,
until the individual no longer has a support arrearage.
The
Court
750.165(1)
biannual
is
of
a
surcharge
Appeals
held
continuing
led
statute by defendant.
to
that
a
offense
a
violation
because
biannual
of
the
violation
MCL
FIA’s
of
the
Under the Court of Appeals reasoning,
that violation continues for as long as a payer owes any
amount.
We reject the conclusion that a violation of MCL
750.165(1) is a continuing offense.
The
relevant
question
in
this
case
is
whether
the
Legislature intended a violation of MCL 750.165 to be a
continuing offense.
We review the statutory text to discern
legislative intent.
People v Lively, 470 Mich 248, 253; 680
NW2d 878 (2004).
An individual is guilty of felony nonsupport under MCL
750.165(1) if the individual “does not pay the support in
the amount or at the time stated in the order . . . .”
The
word “or,” when read in context (“does not pay”), indicates
that the statute is violated if the individual neither pays
the ordered amount nor pays that amount when it is due.
8
Thus, the plain language of MCL 750.165(1) directs that the
crime of felony nonsupport is complete when an individual
fails to pay support in the amount ordered at the time
ordered.
In other words, an individual may be guilty of
felony nonsupport if the individual either pays the full
ordered amount after the due date or pays an amount less
than the ordered amount before the due date and the due date
passes without the individual making full payment.
Thus,
anyone who fails to pay the full ordered amount at the time
ordered may be prosecuted under MCL 750.165(1) even if that
individual later becomes current on the obligation.
The
Legislature did not specify carrying a support arrearage as
a means by which an individual could violate MCL 750.165(1).
Because a person is subject to conviction and punishment
each time the statute is violated, separate violations of
the statute cannot constitute a single continuing offense.5
5
We reject the dissent’s contention that our reading
of the statute is contrary to its plain language. Contrary
to what the dissent believes, our reading of the statute
does not ignore the word “or” or replace the word “or” with
the word “and,” but merely follows the context of the
sentence in the statute.
The dissent would ignore the
context and hold that the statute can be violated by meeting
just one of the two conditions listed in the statute. Such
an interpretation would clearly fail to comply with the
Legislature’s intent, as expressed in the unambiguous words
of the statute.
Under the dissent’s interpretation, an
individual would violate the statute by failing to pay
support in the required amount even if the payment was not
yet due.
We do not believe that the words of the statute
show an intent by the Legislature to hold an individual
9
Our
conclusion
finds
further
750.165(1) is compared to MCL 750.161.
support
when
MCL
In MCL 750.161(6),
the Legislature expressly provided:
Desertion,
abandonment,
or
refusal
or
neglect to provide necessary and proper shelter,
food, care, and clothing as provided in this
section shall be considered to be a continuing
offense and may be so set out in any complaint
or information. . . . [Emphasis supplied.]
Thus, in this statute, the Legislature expressly provided
that
these
contrast,
“Courts
acts
no
cannot
such
constitute
language
assume
that
continuing
appears
the
in
offenses.
MCL
Legislature
By
750.165(1).
inadvertently
omitted from one statute the language that it placed in
another statute . . . .”
Farrington v Total Petroleum, Inc,
442 Mich 201, 210; 501 NW2d 76 (1993).6
criminally liable for failing to pay the ordered support
amount without also considering the date the support payment
was due.
Further, the dissent’s interpretation would also
allow an individual ordered to pay support to avoid
satisfying the second condition (failure to pay at the time
stated in the court order) by paying a negligible amount
before the due date.
Under such an interpretation, an
individual could pay any amount to satisfy the requirement
that payment be made at the time stated in the court order.
We believe that under the unambiguous words of the statute,
the amount of the support order must be considered together
with the date it is due in determining whether a violation
occurred.
6
We disagree with the dissent’s statement that the
Legislature did not need to include such language in MCL
750.165 because the nature of felony nonsupport is such that
the Legislature must assuredly have intended that it be
treated as a continuing offense. The plain language of MCL
750.165(1) indicates that a violation occurs as soon as the
due date passes without the individual paying the amount
10
We conclude that the Legislature did not intend that a
violation of MCL 750.165(1) continue until an individual’s
monetary support obligation is fully discharged.
V
In
summary,
the
crime
of
nonsupport
under
MCL
750.165(1) is complete at the time that an individual fails
to pay the ordered amount at the ordered time.
Under the
limitations period of MCL 767.24(5), a prosecutor has six
years from that point in which to charge such violations.
Here, because the six-year period of limitations expired
before defendant was charged with criminal nonsupport, we
need
not
reach
defendant’s
remaining
prohibitions.
Accordingly, we reverse the portion of the
Appeals
opinion
that
is
post
his
violates
of
ex
that
prosecution
Court
constitutional
argument
inconsistent
facto
with
our
ruling and remand for entry of an order granting defendant’s
motion to dismiss the charge.
Affirmed in part, reversed in part, and remanded to the
trial court.
Clifford W. Taylor
Michael F. Cavanagh
required.
Thus, each violation of the felony-nonsupport
statute has a distinct date. If the Legislature had meant
for a violation of MCL 750.165(1) to be a continuing
offense, it would have so stated.
11
Maura D. Corrigan
Robert P Young, Jr.
Stephen J. Markman
12
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 126852
VITO MONACO,
Defendant-Appellant.
_______________________________
KELLY, J. (concurring in part and dissenting in part).
I concur in the majority’s affirmance of the Court of
Appeals
decision
limitations.
regarding
the
appropriate
statute
of
A violation of the felony-nonsupport statute,
MCL 750.165(1), does not fall under the ten-year period of
limitations in MCL 600.5809(4).
Instead, as the Court of
Appeals and the majority recognized, it falls under the sixyear “catch all” provision of MCL 767.24(5).
I
dissent
from
part
IV
and
the
conclusion
of
the
majority opinion because I believe that the Court of Appeals
was
correct
continuing
when
it
violation.
found
that
felony
Consequently,
conclusions of the Court of Appeals.
I
nonsupport
would
is
affirm
a
the
Also, I would leave
unmolested
People
v
Westman,1
upon
which
the
continuing
violations theory relies.
CONTINUING VIOLATIONS
ARE
DISFAVORED
Statutes of limitations serve important purposes in our
criminal
justice
system.
Not
only
do
they
protect
defendants from having to defend against stale claims, they
pressure law enforcement officials to act promptly.
The
public is served by them in that wrongdoers are brought to
justice more quickly.
Also, an accused is less likely to be
deprived of evidence or witnesses lost through the passage
of time.
It is apparent that statutes of limitations find their
base in equitable concerns.
This fact has led the United
States Supreme Court to direct that criminal limitations
statutes “be liberally interpreted in favor of repose[.]”
United States v Habig, 390 US 222, 227; 88 S Ct 926; 19 L Ed
2d 1055 (1968), quoting United States v
Scharton, 285 US
518,
(1932)
522;
52
S
Ct
416;
76
L
Ed
917
quotation marks omitted).
1
262 Mich App 184; 685 NW2d 423 (2004).
2
(internal
In
Toussie
v
States,2
United
the
Supreme
Court
recognized that the doctrine of continuing offenses could
contradict
the
very
limitations.
The
goals
and
tension
purposes
between
of
the
statutes
two
is
of
clear.
Limitation statutes restrict an accused’s exposure to legal
proceedings.
A
continuing
violation
perpetuates
it,
decreeing that each day an accused does not eliminate his
violation of a statute, he violates it again.
Toussie v
United States, 397 US 112, 114-115; 90 S Ct 858; 25 L Ed 2d
156 (1970).
Courts should not resolve this tension by never viewing
an offense as a continuing violation.
exercise
particular
diligence
before
Rather, they must
deciding
that
the
intent of the legislature was that an offense constitutes a
continuing
violation.
The
Supreme
Court
gave
us
this
guidance in Toussie:
[A
conclusion
that
a
violation
is
a
continuing violation should not be made] unless
the explicit language of the substantive criminal
statute compels such a conclusion, or the nature
of the crime involved is such that Congress must
2
397 US 112; 90 S Ct 858; 25 L Ed 2d 156 (1970). This
case dealt with the failure to register for the draft. The
Supreme Court concluded that the failure to register is not
a continuing offense. Congress disagreed and superseded the
Court’s ruling by statute. 50 USC Appx 462(d). Under the
statute, a person who never registers can be prosecuted for
failing to register up to the age of 31. See United States
v Kerley, 838 F2d 932, 935 (CA 7, 1988).
3
assuredly have intended that it be treated as a
continuing one. [Id. at 115.]
THE LEGISLATURE INTENDED A CONTINUING OFFENSE
IN
MCL 750.165(1)
Whether a continuing violation exists is a matter of
statutory interpretation.
As in all such matters, our goal
is to give effect to the Legislature’s intent in enacting
the statute.
People v Tombs, 472 Mich 446, 451; 697 NW2d
494 (2005).
Our starting point is the language that it
chose.
MCL 750.165(1) provides:
If the court orders an individual to pay
support for the individual’s former or current
spouse, or for a child of the individual, and the
individual does not pay the support in the amount
or at the time stated in the order, the individual
is guilty of a felony punishable by imprisonment
for not more than 4 years or by a fine of not more
than $2,000.00, or both. [Emphasis added.]
Here, the Legislature has created two distinct ways of
committing the crime:
(1) failing to pay support in the
required amount or (2) failing to pay at the time stated in
a court order.
is significant.
I believe that the “or” used in this statute
The Legislature intentionally placed it
there to create two separate ways of committing the offense.
Wherever possible, every word of a statute should be
given meaning, and no word should be treated as surplusage
or made nugatory by court interpretation.
People v Warren,
462 Mich 415, 429 n 24; 615 NW2d 691 (2000).
4
By reading MCL
750.165(1)
as
not
providing
continuing
violation,
the
for
the
possibility
majority
has
rendered
Legislature’s use of the word “or” nugatory.
interprets the statute as if it reads:
of
a
the
The majority
“the individual does
not pay the support in the amount at the time stated in the
order[.]”
But this changes its meaning.
The majority has replaced the two ways to commit the
offense of felony nonsupport with one.
As the majority
reads
of
the
statute,
a
person
is
guilty
the
offense
whenever that person fails to pay the full amount ordered at
the time ordered.
It does not matter if the defendant pays
a partial amount or nothing at all.
All that matters is
that the failure to pay occurs at the time for payment
stated in the support order.
The majority acknowledges that the Legislature intended
two separate ways to violate the statute.
strays from its acknowledgement.
intended
two
separate
ways
to
But its analysis
Because the Legislature
commit
the
offense,
“or”
cannot be read out of the statute as the majority has done.
The majority’s reading effectively replaces “or” with
“and.”
“[T]he individual does not pay the support in the
amount and at the time stated in the order[.]”
Again, I
cannot agree with departing from the language of the statute
as the majority has done.
“And” is conjunctive.
5
“Or” is
disjunctive.
They do not mean the same thing.
the
the
text
of
statute
indicates
that
the
Nothing in
Legislature
intended “and” but inadvertently used “or” in its place.
The choice appears intentional.
The Legislature sought to
create two means of committing felony nonsupport, and it did
so by use of the disjunctive “or.”
Without
good
cause
to
conclude
otherwise,
we
must
assume that the Legislature chose the words of the statute
purposely and intentionally.
Detroit v Redford Twp, 253
Mich 453, 456; 235 NW 217 (1931).
statute
contradicts
the
Because nothing in the
conclusion
that
the
choice
was
intentional, the Court should honor the Legislature’s use of
“or” in MCL 750.165(1).
The first way to violate the statute is by failing to
pay the amount ordered.
There is no limitation in the
statute on when the failure to pay must occur.
nothing
prevents
it
from
continuing
payment specified in the order.
past
Therefore,
the
date
for
In fact, an individual,
such as defendant in this case, fails to pay support “in the
amount” ordered not only each pay period but each day he is
in arrears.
In this case, defendant continuously failed to
pay the amount he owed as his arrearage mounted.
continued
to
commit
the
crime
6
of
felony
Thus, he
nonsupport.
Accordingly, the amount-owed part of MCL 750.165(1) should
be read as providing for a continuing offense.
The majority points to MCL 750.161 as evidence that the
Legislature
did
not
have
that
intention.
In
MCL
750.161(6),3 the Legislature indicates that violation of MCL
750.161(1) is a continuing offense.
that
the
failure
to
include
a
The majority argues
provision
similar
to
MCL
750.161(6) in the felony-nonsupport statute demonstrates an
intent not to create a continuing violation.
I disagree.
By enacting MCL 750.161(6), the Legislature indicated
that each and every offense contained in MCL 750.161(1) is a
continuing offense.
nature,
certain
otherwise.
of
This is despite the fact that, by their
the
offenses
could
be
interpreted
For instance, without the instruction to view it
as a continuing offense, desertion4 normally would be a onetime event.
While a person may repeatedly abandon his or
her spouse or children, the act is not continuous.
3
The
MCL 750.161(6) provides:
Desertion, abandonment, or refusal or neglect
to provide necessary and proper shelter, food,
care, and clothing as provided in this section
shall be considered to be a continuing offense and
may be so set out in any complaint or information.
[Emphasis added.]
4
Random House Webster’s College Dictionary (2001)
defines “desert” as “to leave (a person, place, etc.)
without intending to return[.]”
7
Legislature’s
inclusion
of
MCL
750.161(6)
changes
this
noncontinuous event into a continuous event.
By
contrast,
nature continuous.
felony
the
failure
to
pay
support
is
by
its
Applying Toussie and given the nature of
nonsupport,
the
Legislature
must
assuredly
have
intended that it be treated as a continuing crime.
As
correctly pointed out by the Court of Appeals, even a single
unsatisfied
court
child
periodically
reasons,
the
support
adds
payment
a
Legislature
will
surcharge
may
not
to
have
grow
it.
seen
because
For
the
the
these
need
to
include a section such as MCL 750.161(6) in order to tell us
that felony nonsupport is a continuing offense.
In any
event, the language of the “amount owed” portion of the
statute speaks for itself.
I would allow it to do so in
this case.
Here,
continuing
defendant
over
a
did
period
not
pay
of
court-ordered
years
and
accumulated arrearage of over $57,000.
support
resulting
in
an
The Court of Appeals
was right when it found that it was because of defendant’s
continuing
failure
to
pay
support
that
the
lower
court
correctly bound defendant over for trial.
I do not make this finding of a continuing violation
lightly.
I recognize the extra scrutiny required under
Toussie.
But I believe that the explicit language of the
8
substantive
criminal
Toussie, 397 US 115.
statute
compels
this
conclusion.
In MCL 750.165(1), the Legislature
explicitly and intentionally used the word “or.”
In so
doing, it created an “amount owed” offense that, by its
nature, constitutes a continuing offense.
By effectuating
the intent of the Legislature, my interpretation meets the
requirements articulated by the Supreme Court in Toussie.
THE EX POST FACTO CLAUSES WERE NOT VIOLATED
Defendant points out that MCL 750.165 was substantively
amended effective November 3, 1999, whereas his failure to
pay child support occurred between 1984 and 1994.
asserts,
the
charge
should
have
been
Hence, he
dismissed
as
a
violation of the ex post facto clauses of the state and
federal constitutions.
Const 1963, art 1, § 10; US Const,
art I, § 10.
I agree with the Court of Appeals that no ex post facto
violation of law occurred in this case.
Because defendant’s
failure to pay overdue child support is an ongoing violation
of MCL 750.165, and because it continued after November 3,
1999, the felony-nonsupport charge against defendant does
not violate ex post facto prohibitions.
CONCLUSION
I concur in the majority’s decision that a violation of
MCL
750.165(1)
is
subject
to
9
the
six-year
period
of
limitations provided in MCL 767.24(5).
determination
that
a
violation
constitute a continuing offense.
of
the
I dissent from its
statute
does
not
The Legislature evidenced
a clear intent to make the failure to pay court-ordered
support a continuing offense.
Therefore, I would affirm the
decision of the Court of Appeals.
Marilyn Kelly
Elizabeth A. Weaver
10
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