CHILD SUPPORT RAPPER NAS, JUSTICE, AND A MICHIGAN CASE

Flint Divorce Lawyer Terry Bankert discusses Domestic Issues that Could be found in Genesee County Family Court or Your Court:




DID YOU KNOW :
... Arrearages and Civil Contempt A system in which child support awards are commonly set beyond the parent's ability to pay, modification procedures are neither realistically available nor likely to address inequities, and retroactive correction is disallowed, inevitably results in the accrual by many parents of large and unpayable arrearages. [3]



DID YOU KNOW… in contempt, the low-income obligor is rarely a candidate for civil incarceration because of the likelihood that he or she is unable to pay the hefty sum represented by the accumulated arrearages, or even a portion thereof that may be set by the court as the purge amount. [3]



DID YOU KNOW... Indigents are especially unlikely to appeal civil contempt orders, given their lack of access to appellate counsel in most states and the brevity of the typical contempt sentence.[3]



DID YOU KNOW ... In civil contempt proceedings, unlike those for criminal contempt, absence of willfulness is treated as a defense, and the initial burden is on the contemnor to plead and present evidence of his or her inability to comply with the order. ... [3]

IF CONTEMPT OF COURT WITH POSSIBLE JAIL CAN FACE A CELEBRITY IT COULD HAPPEN TO YOU.



Born Nasir Jones Rapper Nas was cleared of a civil contempt charge on Monday in connection with his divorce from Kelis. According to a statement from his spokesperson released on Wednesday, "The contempt charges that were filed against Nas earlier this year in conjunction with his ongoing custody battle were thrown out yesterday by Judge David Cunningham III presiding over the case. [4]



Nas has paid all of the child support owed in full. His legal counsel today also settled on additional undisclosed financial terms, which included attorneys' fees and spousal support." The contempt charges were dismissed after Nas paid nearly $50,000 in child support to estranged wife Kelis,[4]



ISSUES DISCUSSED IN THE ARTICLE BELOW:



Conviction for failing to pay child support (MCL 750.165); Exclusion of evidence the defendant was unable to pay the court-ordered child support; People v. Adams; Due process; City of Port Huron v. Jenkinson;



Whether defendant was entitled to a new trial on the basis her rights under Michigan's Due Process Clause were denied by the trial court's order prohibiting her from presenting inability to pay as a defense;



Constitutionality of MCL 750.165;



Ineffective assistance of counsel; People v. Mack; Impermissible collateral attack on the underlying support order; People v. Howard; MCL 600.1021;



The Support & Parenting Time Enforcement Act (MCL 552.601-.650); MCL 552.16(1); MCL 552.605; MCL 552.603(2); MCR 3.205(C); The actus reus element of the crime; People v. Monaco; Right to present a defense; People v. Kurr; People v. Hayes; People v. Hackett; Relevant evidence (MRE 401);



Prosecutorial misconduct; People v. Dobek; People v. Unger; People v. Thomas; People v. Rodriguez; People v. McLaughlin; People v. Watson;



"Plain error" review; People v. Brown

[1]Court: Michigan Court of Appeals (Unpublished 4/20/2010)

Case Name: People v. (L), No. 290218, Oakland County Circuit Court, LC No. 2008-220669-FH

e-Journal Number: 45583

Judge(s): Per Curiam - Fitzgerald, Cavanagh, and Davis

Concluding the defendant's reliance on Jenkinson was misplaced because unlike the defendant in Jenkinson, she was prosecuted for failing to comply with a court order entered after a judicial determination was made she had the financial means to comply with the court order, the court rejected her claim MCL 750.165 was unconstitutional and affirmed her conviction for failing to pay child support.



MOTHER IN FAMILY COURT WAS ORDERED TO PAY CHILD SUPPORT HERE IN CIRCUIT COURT SHE IS BEING PUNISHED FOR NOT PAYING



Mother who is the Defendant was ordered to pay her ex-husband (E) child support after their divorce because he was awarded custody of their three minor children. The child support was initially set at $54 a month. Later, husband sought an increase after he learned mother had purchased a home worth about $500,000 by securing 2 mortgages in her name, for $2,000 a month and $1,000 a month, respectively. She also purchased a new vehicle. After hearings on the matter, the FOC recommended income of $5,000 a month be imputed to defendant consistent with her standard of living and her child support obligation be increased to $1,131 a month, retroactive to June 1, 2005. [1]



The Oakland County Circuit Court trial court in the child support case adopted the recommendation after holding a hearing. [1]



Mothers payment history was very sporadic. She paid nothing in 2006 and $488.85 in 2007. The amount of arrearage as of February 29, 2008 was $40,182.71. [1]



FELONY NON SUPPORT

Felony charges for failure to pay child support were filed against her in March 2008. The trial court granted the prosecution's motion in limine to prevent defendant MOTHER from offering any evidence related to her alleged inability to pay the ordered child support. [1]



THE FOC ASSUMED THE ABILITY TO PAY



On appeal, defendant argued, inter alia, she was entitled to a new trial because her rights under Michigan's Due Process Clause were denied by the OAKLAND COUNTY CIRCUIT trial court's order prohibiting her from presenting her inability to pay as a defense. [1]

THE FAMILY COURT SAID SHE COULD PAY IT SHE SHOULD HAVE APPEALED THERE

The court disagreed, concluding unlike the defendant in Jenkinson, the duty imposed on defendant was adjudged possible for her to perform. She was a party to civil proceedings involving the modification of her child support obligation, which gave her ample opportunity to present evidence of her ability or inability to pay an increased amount of child support. [1]

THE FAMILY COURT SAID WITH THESE BILLS YOU CAN PAY MORE SUPPORT.

In accordance with the evidence of her standard of living, she was adjudged capable of paying $1,131 in child support a month. "Thus, unlike the defendant in Jenkinson, the State did not impose upon her a duty that was impossible for her to perform." [1]



YOU HAVE TO APPEAL A COURT ORDER IN THE COURT THAT MADE THE ORDER NOT ANOTHER EQUAL OR LESSER COURT.



The court concluded her argument was actually an impermissible collateral attack on the underlying support order. Affirmed. [1]

Here, defendant was prosecuted for the criminal offense of violating MCL 750.165 which

states, in pertinent 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]



On September 29, 2008, the prosecution filed a motion in limine seeking to prevent

defendant from offering any evidence pertaining to her alleged inability to pay the ordered child support. The prosecution argued that, as this Court held in People v Adams, 262 Mich App 89; 683 NW2d 729 (2004), the failure to pay child support in violation of MCL 750.165 is a strict liability offense; thus, evidence of an alleged inability to pay is immaterial and irrelevant. The trial court agreed and granted the motion in limine, holding that “inability to pay is not a defense. Something should have been raised earlier for a modification, but it wasn’t.” A jury trial began on November 14, 2008, and defendant was convicted as charged.[1]



HIGHLIGHT: Each day in the United States thousands of persons are jailed on charges arising from failure to pay court-ordered child support. Some of them have been convicted of contempt of court, a crime based on willful defiance of the court order. However, most are incarcerated pursuant to the court's civil authority to jail contemnors as a means of coercing compliance with the order. In the case of the civil contemnor, confinement generally occurs without the procedural protections that are available as a matter of right in criminal proceedings. A finding of ability to pay the ordered support is a necessary precedent to both a finding of contempt and the penalty of coercive incarceration. Otherwise, the incarceration can only be characterized as punishment for being poor. Yet many incarcerated child support obligors are indigent, with irregular employment, limited earning potential, no real assets, and questionable ability to pay. A variety of systemic and judicial flaws have coalesced to create a fertile environment for unjustified incarcerations. Prominent among these are serious deficiencies in current civil contempt practice. Restoration of equity and due process to this area will require an array of adjustments in federal and state law, agency practice, and judicial process.[3]


Posted here by

Terry Bankert

http://www.attorneybankert.com/



see

[1]

Court: Michigan Court of Appeals (Unpublished 4/20/2010),Case Name: People v. (L), No. 290218, Oakland County Circuit Court, LC No. 2008-220669-FH,e-Journal Number: 45583,Judge(s): Per Curiam - Fitzgerald, Cavanagh, and Davis

[2] HEADLINES and cited comments by Terry Bankert A Michigan Attorney www.attorneybankert.com

[3]

NAME: Elizabeth G. Patterson*
BIO: * Professor, University of South Carolina School of Law. Professor Patterson was Director of the South Carolina Department of Social Services from 1999 through 2003.
18 Cornell J. L. & Pub. Pol'y 95



[4]

http://www.mtv.com/news/articles/1637082/20100415/nas.jhtml

DOMESTIC VIOLENCE- NO EXCUSE

Nobody has a right to hit you. But you have to act. A PPO is one way.

FLINT DIVORCE LAWYER BANKERT COMMENTS ON KIM KARDASHIAN AND DOMESTIC VIOLENCE. POINT OF VIEW:IF THIS HAPPENED IN MICHIGAN.


4/26/2010



Terry Bankert a Flint Michigan Divorce Attorney comments on the following celebrity domestic relations and the issue implications from a Michigan Family Law view.



DOMESTIC VIOLENCE

New divorce court papers reveal Kim Kardashian's tumultuous relationship with ex-husband and music producer Damon Thomas, including the claim that Thomas punched Kardashian in the face and slammed her against the wall. [1]



DID YOU KNOW: Domestic violence happens when one household member , spouse , romantic interest or just room mate, chooses to use a pattern of physical assaults, threats of violence, and emotional abuse to maintain power and control over another.



Americas 50 states all have statutes authorizing courts to issue orders of protection to domestic violence victims.







NO POLICE CALLS, NO PPO

Why no police reports? Abject fear. "I thought about calling the police but was afraid and decided not to do so," Kardashian reported.[4]



In Michigan, a victim of domestic violence has the option of obtaining a personal protection order (PPO) to stop abusive behavior. PPOs may order a stop to specific actions, such as assaulting, attacking, beating, molesting, stalking, or wounding the petitioner. Additionaly, they may prohibit entering specific premises, usually including the petitioner’s home and place of employment. PPO’s may also prohibit the removal of minor children from the legal custodian, purchasing or possessing a firearm, and any other act that interferes with the petitioner’s personal liberty or that causes a reasonable fear of violence.





CONTROLLING

The papers also claim that Thomas gave her $3,650 to get liposuction, because he wanted her to be "perfect." [1]



During their divorce in 2004, Kim revealed in a sworn testimony that she was instructed to have liposuction, was treated like a maid and that music producer Damon had threatened to kill her.[3]



DOMINATING

"Damon decided what we would do and when we would do it. He was very much the 'King of the castle," Kardashian stated in the documents. [1]

THEATS OF VIOLENCE TO HER FAMILY

"He threatened to kill me, my family members and the guys that I am dating."

But that wasn't the only threat against her life, he repeated it at least 12 times. "At this point, I am frightened by the stories that are repeated to me." [2]



INDICATORS OF DOMESTIC VIOLENCE

Domestic violence is a pattern of behavior whose purpose is to establish power and control over another person through fear and intimidation, often including the threat or use of violence. National Coalition Against Domestic Violence, at http://www.ncadv.org.

Domestic Violence is not limited to physical violence, abusers may use many forms of control against their partners, including

isolation from friends and family;

verbal abuse (belittlement, taunting);

intimidation (destroying property, abusing pets, displaying firearms);

economic abuse (controlling access to money, preventing or interfering with employment);

coercion (threatening to commit suicide or to report incidents to protective services);

use of the children (harassment during parenting time, threatening to kidnap the children);

sexual abuse; and

stalking.





SHOULD SHE HAVE SOUGHT A PPO?



Nobody has a right to hit you. But you have to act. A PPO is one way.



PPOs have two types that may be issued, depending on the relationship between the parties. A domestic relationship PPO enjoins certain assaultive and threatening behaviors when there is a domestic relationship between the parties. A domestic relationship exists if the parties are or have been married, have had a child in common, have lived together, or have dated.



WHAT BEHAVIOR CAN A PPO STOP OR AT LEAST GIVE THE POLICE A REASON TO ARREST?

What acts may a domestic relationship PPO restrict? Petitioners may request that the court prohibit respondents from the following:

(a) Entering onto premises.

(b) Assaulting, attacking, beating, molesting, or wounding a named individual.

(c) Threatening to kill or physically injure a named individual.

(d) Removing minor children from the individual having legal custody of the children.

(e) Purchasing or possessing a firearm.

(f) Interfering with petitioner’s efforts to remove petitioner’s children or personal property from premises that are solely owned or leased by respondent.

(g) Interfering with petitioner at petitioner’s place of employment or education or engaging in conduct that impairs petitioner’s employment or educational relationship or environment.

(h) Having access to information in records concerning a minor child of both petitioner and respondent that will inform respondent about the address or telephone number of petitioner and petitioner’s minor child or about petitioner’s employment address.



(i) Engaging in conduct that is prohibited under section 411h or 411i of the Michigan penal code (stalking).

(j) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.

MCL 600.2950(1).







SHORT TERM MARRAIGE

The two were marred in Las Vegas when Kardashian was 19, Thomas 29. They divorced three years later.[1]



Posted here by

Terry Bankert

WWW.ATTORNEYBANKERT.COM







SEE



[1]

http://abcnews.go.com/Entertainment/slideshow/survivors-abuse-7057338

[2]

http://www.hindustantimes.com/Kardashian-s-bad-marriage/H1-Article1-535226.aspx

[3]

http://www.mirror.co.uk/celebs/news/2010/04/24/court-papers-reveal-kim-kardashian-s-abusive-four-year-marriage-115875-22208181/

[4]

http://www.sheknows.com/articles/814830/kim-kardashian-papers-detail-abuse-at-hands-of-ex-1