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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v

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

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 of MCL 767.24(5).1 We reject the Court of

1

the

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 well

after the six-year limitations period expired.

The Court of

Appeals thus erred in affirming the trial court's denial of defendant's motion to dismiss the 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. 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
2

Defendant's 1994. In

youngest

child

turned

eighteen was

in

March with

December

2002,

defendant

charged

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. arrearage included both unpaid child support

Defendant's and Family

Independence Agency (FIA) surcharges. 1996, a biannual surcharge also

Commencing in January to defendant's

attached

delinquent account.

The trial court bound defendant over,

concluding that the judgment was "subject to the enforcement of the criminal sanctions."

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

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. I,

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Michigan Law