People v. Monaco

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

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

1
The Court of Appeals opinion cites MCL 767.24(4) as
the “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. People v Monaco, 262 Mich App 596; 686 NW2d 790

(2004). 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 youngest child turned eighteen in March

1994. In December 2002, defendant was charged 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 included both unpaid child support and Family

Independence Agency (FIA) surcharges. Commencing in January

1996, a biannual surcharge also attached to defendant’s

delinquent account. 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 not otherwise specifically provided for in MCL

767.24. 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 the trial court’s

decision on different grounds. 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 that the crime of felony
4
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 court-

ordered 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 of Appeals held that the statutory period of

limitations on the felony-nonsupport charge against

defendant never began to run because of defendant’s

arrearage. The panel thus affirmed the trial court’s denial

of defendant’s motion to dismiss the felony-nonsupport

charge or quash the bindover.
5
 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). We concur with the Court of

Appeals that the 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 ten-
year 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 of Appeals held that a violation of MCL

750.165(1) is a continuing offense because the FIA’s

biannual surcharge led to a biannual violation of the

statute by defendant. 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 support when MCL

750.165(1) is compared to MCL 750.161. 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 acts constitute continuing offenses. By

contrast, no such language appears in MCL 750.165(1).

“Courts cannot assume that the Legislature 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 argument that his

prosecution violates constitutional ex post facto

prohibitions. Accordingly, we reverse the portion of the

Court of Appeals opinion that is inconsistent 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 regarding the appropriate statute of

limitations. 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 six-

year “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 when it found that felony nonsupport is a

continuing violation. Consequently, I would affirm the

conclusions of the Court of Appeals. 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, 522; 52 S Ct 416; 76 L Ed 917 (1932) (internal

quotation marks omitted).

1
262 Mich App 184; 685 NW2d 423 (2004).

2

 In Toussie v United States,2 the Supreme Court

recognized that the doctrine of continuing offenses could

contradict the very goals and purposes of statutes of

limitations. The tension between the two is 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. Rather, they must

exercise particular diligence before 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. I believe that the “or” used in this statute

is significant. 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). By reading MCL

4

750.165(1) as not providing for the possibility of a

continuing violation, the majority has rendered the

Legislature’s use of the word “or” nugatory. The majority

interprets the statute as if it reads: “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 the statute, a person is guilty of 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. But its analysis

strays from its acknowledgement. Because the Legislature

intended two separate ways to 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. “Or” is

5

disjunctive. They do not mean the same thing. Nothing in

the text of the statute indicates that the 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). Because nothing in the

statute contradicts 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. Therefore,

nothing prevents it from continuing past the date for

payment specified in the order. 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. Thus, he

continued to commit the crime of felony nonsupport.

6

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. The majority argues

that the failure to include a 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. This is despite the fact that, by their

nature, certain of the offenses could be interpreted

otherwise. For instance, without the instruction to view it

as a continuing offense, desertion4 normally would be a one-

time event. While a person may repeatedly abandon his or

her spouse or children, the act is not continuous. The

3
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, the failure to pay support is by its

nature continuous. Applying Toussie and given the nature of

felony 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 child support payment will grow because the

court periodically adds a surcharge to it. For these

reasons, the Legislature may not have seen the 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, defendant did not pay court-ordered support

continuing over a period of years and resulting in an

accumulated arrearage of over $57,000. 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 statute compels this conclusion.

Toussie, 397 US 115. 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. Hence, he

asserts, the charge should have been 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 the six-year period of

9

limitations provided in MCL 767.24(5). I dissent from its

determination that a violation of the statute does not

constitute a continuing offense. 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