Evidence of De Facto of Imprisonment for Debt in Michigan

Doug Dante
Friday, August 20, 2010

I am not a lawyer and this is not legal advice.

Michigan's Constitution prohibits imprisonment for debt (i.e. debtor's prison) except in the cases of
fraud or breach of trust.

"§ 21
Imprisonment for debt.
Sec. 21. No person shall be imprisoned for debt arising out of or founded
on contract, express or implied, except in cases of fraud or breach of
trust."

Michigan Constitution
www.legislature.mi.gov/documents/publications/constitution.pdf

"breach of trust: The willful misappropriation, by a trustee, of a thing

which had been lawfully delivered to him in confidence.

http://www.lectlaw.com/def/b112.htm

"The term 'fraud' is generally defined in the law as an intentional

misrepresentation of material existing fact made by one person to
another with knowledge of its falsity and for the purpose of inducing the
other person to act, and upon which the other person relies with
resulting injury or damage."

http://www.lectlaw.com/def/f079.htm

Compare to Michigan law, which reads in part:

"...The court shall specify in the bench warrant the cash performance
bond amount. The court shall set the cash performance bond at not less
than $500.00 or 25% of the arrearage, whichever is greater..."
MCL 552.631 Section 31
http://www.legislature.mi.gov/mileg.aspx?
page=getobject&objectname=mcl-552-631
 "In the absence of proofs to the contrary introduced by the payer, the
court shall presume that the payer has currently available resources
equal to 4 weeks of payments under the support order...."
MCL 552.633 Section 33
http://www.legislature.mi.gov/mileg.aspx?
page=getobject&objectname=mcl-552-633

In order to avoid debtor's prison when they honestly can't pay, a parent has to introduce "proofs to the
contrary ... that the payer has currently available resources equal to 4 weeks of payment under the
support order"

Unfortunately, court appointed lawyers may be unhelpful and fail to prepare their clients to present
sufficient proofs:

http://www.scribd.com/doc/34635954/Some-Thoughts-on-Inadequate-
Appointed-Counsel-in-Michigan

Furthermore, in practice, courts may simply reject all offered proofs as insufficient.

"Every Friday morning, around 150 people are called to the Ottawa
County Courthouse because they’re behind on child support. A good
number make payments and are free to go."

Child support: It’s pay up or auto lockdown for shirkers

By PETER DAINING
The Holland Sentinel
Posted Aug 13, 2010 @ 05:30 AM
Last update Aug 15, 2010 @ 10:39 PM
http://www.hollandsentinel.com/feature/x1422842089/Child-support-It-
s-pay-up-or-auto-lockdown-for-shirkers

The implication is that if parents don't make sufficient payments, they are imprisoned. No parent is set
free based on proofs of no currently available resources.

However, it seems to me that under the Michigan Constitution, the court must affirmatively hold that a
debtor has committed "fraud" or "breach of trust".

For example, in this RipOffReport, a mother claims that that a Friend of the Court agent threatened a
father with jail unless he agreed to let them keep the child support which rightfully belonged to her and
her children, but was in a joint checking account with her husband:
 "She took my husband ALONE downstairs and basically told him that if
he didn't sign over ALL the money out of our account, she would not lift
the bench warrant, and he would be arrested. When my husband tried to
tell her that the money wasn't his and that it was every cent we had, she
told him, "You're telling me a bunch of stuff that has nothing to do with
your kid." So basically, my husband signed off all of MY money or else
he was going to jail. Does that sound like extortion or what???"

Report: COUNTYNAME County Friend Of The Court

COUNTYNAME County Friend Of The Court rip-off! They cleaned out
my bank account for my husband's arrearage, now we are bankrupt!
CITYNAME Michigan
http://www.ripoffreport.com/Family-Services/Genesee-County-
Frien/genesee-county-friend-of-the-c-2d3dy.htm

The FOC is an agent of the court and a part of the government of the State of Michigan, and as such, is
bound by Michigan's Constitution in applying the law.

These incidences and others suggest that Michigan's Constitutionally strict prohibition on imprisoning
debtors except in cases of fraud and breach of trust is not preventing parents from being arrested for
failure to pay child support, even if the Friend of the Court or the court (for whom they work) is aware
that they don't have the resources to pay. In other words, evidence indicates that Michigan may have
de facto debtor's prisons for child support debtors. Furthermore, this evidence suggest that the offers of
proof of lack of resources may be routinely ignored by both the Friend of the Court and by the courts.

"De facto is a Latin expression that means "by [the] fact". In law, it is
meant to mean "in practice but not necessarily ordained by law" or "in
practice or actuality, but without being officially established"."

http://en.wikipedia.org/wiki/De_facto

If these accounts are correct, the motivation behind forcing child support payments, even to the extent
of seizing another child's support money to pay for a different child, may be the financial conflicts of
interest that Friend of the Court workers face. Each time a payment is made, Title IV-D funding for the
Friend of the Court increases, even if those payments are made from another child's money.

See also:

A Review of Friend of the Court Legislative Changes: Suffer the Little

Children
http://www.scribd.com/doc/29563848/A-Review-of-Friend-of-the-Court-
Legislative-Changes-Suffer-the-Little-Children

Some Thoughts on Child Support and Michigan's Friend of the Court

http://www.scribd.com/doc/458394/Michigan-Friend-of-the-Court-
Child-Support-Modification-Request

A Quick Summary of Title IV-D Funding and Incentives

http://www.scribd.com/doc/630611/A-Quick-Summary-of-Title-IVD-
Funding-and-Incentives