People of Michigan v. John G Dolschenko ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 20, 2023
Plaintiff-Appellee,
v No. 360169
Ogemaw Circuit Court
JOHN G. DOLSCHENKO, LC No. 20-005342-FH
Defendant-Appellant.
Before: GARRETT, P.J., and K. F. KELLY and HOOD, JJ.
PER CURIAM.
Defendant appeals by right his bench-trial conviction of failure to pay child support, for
which he was sentenced to 79 days in jail with credit for 79 days served, and ordered to pay
$39,254.36 in costs, fees, and restitution. Finding no errors warranting reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Defendant, John G. Dolschenko, and his former wife, Sheryle Musser, were married in
2001 and have three children. The couple separated in 2011 while living in the state of New York,
after which that state granted physical custody of the three children to Musser, and joint legal
custody to Musser and defendant. Musser and the children moved to Michigan and, on
February 15, 2015, Musser filed for divorce in Michigan and sought sole physical and legal
custody of the three children. The court entered a temporary child support order, requiring
defendant to pay $1,069 per month in child support. In January 2016, the court held a hearing, in
which defendant was present. The divorce was finalized the same month, wherein Musser was
granted sole physical and legal custody of the children, and defendant was ordered to pay $1,282
per month in child support.
Defendant failed to pay the required support from January 1, 2017, to February 1, 2019,
and was charged with one count of failure to pay child support, MCL 750.165. There was no
dispute during defendant’s bench trial that defendant failed to comply with the child support order
from January 1, 2017 to February 1, 2019. Instead, defendant argued the underlying child support
order was void because the court that issued the order did not have subject-matter jurisdiction. The
court ultimately disagreed, and defendant was convicted as noted above. This appeal followed.
-1-
II. STANDARD OF REVIEW
We review a trial court’s findings of fact for clear error and conclusions of law de novo.
People v Pennington, 323 Mich App 452, 464 n 7; 917 NW2d 720 (2018). “A finding is clearly
erroneous when, although there is evidence to support it, the reviewing court is left with a definite
and firm conviction that a mistake has been made.” People v Lanzo Constr Co, 272 Mich App
470, 473; 726 NW2d 746 (2006). This Court reviews de novo issues concerning jurisdiction.
People v Taylor, 316 Mich App 52, 54; 890 NW2d 891 (2016). Questions of statutory construction
are also reviewed de novo. People v Kern, 288 Mich App 513, 516; 794 NW2d 362 (2010).
III. ANALYSIS
On appeal, defendant contends that the trial court erred when finding him guilty of failure
to pay child support because the Michigan courts did not have subject-matter jurisdiction to order
child support in the first place. We disagree.
The felony nonsupport statute, MCL 750.165 states, in relevant 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. [MCL 750.165(1).]
In order to convict a defendant for failure to pay child support, the prosecutor must prove:
“(1) the defendant was required by a divorce order to support a child, (2) the defendant appeared
in or received notice of the action in which the order was issued, and (3) the defendant failed to
pay the required support at the time ordered or in the amount ordered.” People v Iannucci, 314
Mich App 542, 544; 887 NW2d 817 (2016). Felony nonsupport is a strict liability offense,
meaning the prosecutor is not required to show intent. People v Adams, 262 Mich App 89, 100;
683 NW2d 729 (2004).
At trial, there was no dispute defendant was ordered by the court to financially support his
children. Defendant was aware of the child support order and was present at the hearing when the
support order was entered. It is also undisputed that defendant failed to make the required child
support payments between January 1, 2017, and February 1, 2019. Defendant did not challenge
these facts during trial. Instead, defendant only contested the validity of the underlying child
support order, arguing, as he does here, that the trial court lacked subject-matter jurisdiction
because there was a pending case in the state of New York concerning the couple’s divorce at the
time Musser filed for divorce in Michigan.
In this state, the court that issues a child support order has continuing, exclusive jurisdiction
over that support order and the related proceedings. Under MCL 552.2205(1):
(1) A tribunal of this state that has issued a child-support order consistent
with the law of this state has and shall exercise continuing, exclusive jurisdiction
to modify its child-support order if the order is the controlling order and either of
the following applies:
-2-
(a) At the time of the filing of a request for modification, this state is the
residence of the obligor, the individual obligee, or the child for whose benefit the
support order is issued.
(b) Even if this state is not the residence of the obligor, the individual
obligee, or the child for whose benefit the support order is issued, the parties
consent in a record or in open court that the tribunal of this state may continue to
exercise jurisdiction to modify its order.
An impermissible collateral attack occurs “whenever challenge is made to [a] judgment in
any manner other than through a direct appeal.” Iannucci, 314 Mich App at 544-545 (quotation
marks and citation omitted; emphasis added). Defendant’s challenge to the validity of his child
support order constitutes an impermissible collateral attack on the child support order because
defendant did not challenge the support order on direct appeal, but rather sought to challenge it as
a basis for dismissing the criminal charges against him. Defendant has not provided any authority
supporting his position that he can collaterally attack the underlying support order—even on
jurisdictional grounds—in his criminal prosecution. See People v Smart, 266 Mich App 307, 316;
703 NW2d 107 (2005) (concluding the defendant abandoned argument on appeal by “fail[ing] to
cite specific supporting authority”). Accordingly, under Iannucci, defendant’s challenge to the
court’s subject-matter jurisdiction to enter the support order was an impermissible collateral attack,
and we affirm defendant’s conviction.
Even if defendant’s jurisdictional challenge to the support order was permissible in these
collateral proceedings, defendant’s argument that the Michigan court lacked jurisdiction to order
child support is meritless. Defendant contends that under MCL 552.2204, the court did not have
jurisdiction to enter the child support order because there was a pending matter in New York and
Musser did not challenge jurisdiction in that state. Defendant, however, relies on the current
version of MCL 552.2204,1 which went into effect after the trial court entered the support order.2
At the time the judgment of divorce and accompanying child support order were entered, MCL
552.2204, 2015 PA 255, stated, in relevant part:
(1) A tribunal of this state may exercise jurisdiction to establish a support
order if the petition or comparable pleading is filed after a pleading is filed in
another state or a foreign country only if 1 of the following applies:
(a) The petition or comparable pleading in this state is filed before the
expiration of the time allowed in the other state or the foreign country for filing a
1
2017 PA 36, effective May 23, 2017.
2
“Amendments of statutes are generally presumed to operate prospectively unless the Legislature
clearly manifests a contrary intent.” People v Thomas, 260 Mich App 450, 458; 678 NW2d 631(2004) (quotation marks and citation omitted).
-3-
responsive pleading challenging the exercise of jurisdiction by the other state or the
foreign country.
(b) The contesting party timely challenges the exercise of jurisdiction in the
other state or foreign country.
(c) If relevant, this state is the home state of the child.[3]
Defendant does not dispute that at the time the support order was entered, Michigan was
the home state of the children,4 satisfying subsection (1)(c) of the statute. Accordingly, under the
version of the statute in effect when the order was entered, the trial court properly exercised
jurisdiction over the matter.
Affirmed.
/s/ Kristina Robinson Garrett
/s/ Kirsten Frank Kelly
/s/ Noah P. Hood
3
Under the current version of MCL 552.2204(1), the court may exercise jurisdiction only if all
three conditions, (a)-(c), are satisfied.
4
This finding—that the children’s home state was in Michigan—was also made by the court in
New York when it dismissed the action in that state.
-4-