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A Better Partnership
June 09, 2010

COA Opinion: Inability to pay is not a defense to charge of felony failure to pay child support

On June 8, 2010, the Court of Appeals approved for publication its April 20, 2010 per curiam opinion in People v. Likine, No. 290218.' ' That case arose from the defendant's failure to pay' court-ordered child support.' Initial support payments were' under $200/month, but based upon hearings that revealed' the defendant's purchase of a $500,000 home and new car, were' raised to over $1,000/month.' Defendant failed to make the adjusted court-ordered payments and was eventually charged with felony failure to' pay child support.' The trial court ordered that defendant would not be permitted to' raise a defense of inability to pay, because the' charge was a strict liability offense.' The' defendant was convicted.' On appeal, she argues' that' the underlying' statute was unconstitutional based on precedent that holds' that the' Legislature cannot impose the duty to perform an act upon a person, which is impossible for that person to perform, and then make such non-performance a crime.' The Court of Appeals found that the precedent did not apply in this case, noting that' the defendant' had a full opportunity for due process' regarding the child-support amount and her ability to pay in the civil context.' In those proceedings, the civil court had determined that she did, in fact, have the ability to perform the' ordered support obligations.' Additionally,' she argued that the' trial court's' decision preventing her from raising the inability-to-pay defense was a due-process violation.' Again, the Court of Appeals disagreed, finding that the right to' present a defense is not' an absolute' right, and that the inability to pay was irrelevant to any' fact at issue in the case.' Thus, the' Court of Appeals affirmed the conviction.

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