In March 2008, the Oakland County, Michigan Prosecutor’s Office charged 42-year-old Selesa Likine with failure to pay child support to her ex-husband for more than three years, beginning in February 2005. She was arrested and spent 48 days in jail before her bond was posted and she was released.
According to the charges, Likine was divorced in 2003 and ordered to pay $54 per month in child support to her ex-husband, Elive Likine, who had been awarded custody of their three children. The monthly amount was later raised to $181 a month.
In the spring of 2005, Elive Likine sought to increase the monthly payments after learning that Selesa had purchased a $400,000 home with a $3,000-a-month mortgage payment and had also purchased a new vehicle.
Following hearings, the Family Division of the Oakland County Circuit Court raised the monthly child support payments to $1,131 based on a calculation that her standard of living required an income of $5,000 a month.
Likine paid nothing in 2006. In 2007, she paid $488.85. When she was charged in March 2008, she had paid $100 that year. The prosecution alleged Likine owed a total of $40,182.71.
Prior to trial, the judge granted a prosecution motion that barred Likine from presenting any evidence relating to an inability to pay. The prosecution argued and the judge agreed that under Michigan law, failure to pay child support is a “strict liability” crime, which the judged interpreted to mean that evidence of inability to pay was immaterial.
As a result, Likine was unable to inform the jury that she had been unemployed since September 2005 after she was hospitalized for a mental illness, and that after January 2006, she subsisted on Social Security disability payments of about $600 a month.
Likine was convicted on November 14, 2008 after a one-day jury trial. During deliberation, the jury sent out a note asking if Likine was employed during the time in question and the judge informed them that this information was irrelevant. Likine was sentenced to one year of probation and given credit for 48 days of time served in custody.
In 2009, Likine filed an appeal, with assistance from the Michigan Innocence Clinic at the University of Michigan Law School as well as Michael Steinberg of the American Civil Liberties Union of Michigan.
In January, 2010, a Family Court judge acknowledged that Likine’s monthly payments had been erroneously increased and reduced the monthly payment by 98 percent to $25 a month. The judge recognized that the assessment was incorrectly based on imputed income, in violation of guidelines that bar such imputation for persons subsisting on disability payments.
Likine’s lawyers argued on appeal that the trial court violated her constitutional right to due process by excluding evidence of her inability to pay. In April 2010, the Michigan Court of Appeals upheld the conviction.
In July 2012, the Michigan Supreme Court reversed the conviction. The Court held that a defendant in a child support prosecution must be allowed to rebut evidence of non-payment with evidence that it was impossible for the defendant to pay because of circumstances beyond her control, including incarceration, hospitalization or a diagnosed disability. Pro-bono attorney Mark Kriger joined the defense team and began preparing for trial.
On November 14, 2012, the prosecution dismissed the case.
– Maurice Possley