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Can OV 16 be scored for failure to pay child support?

OV 16 cannot be scored for failure to pay child support. People v Hershey, 303 Mich App 330, 338, 340-341 (2013).

In Hershey, the Court interpreted the language of OV 16 and held that child support was not lost property nor was it unlawfully obtained property under the statutory language. Regarding lost property specifically, “OV 16 [is] to be scored when tangible property that was already possessed by a particular owner was unlawfully obtained, damaged, lost or destroyed[;] . . . [t]herefore, . . . the definition of the term ‘loss’ or ‘lost’ [as used in MCL 777.46] does not encompass a person’s loss of a right or expectation.” Hershey, 303 Mich App at 340-341 (holding that the defendant’s failure “to fulfill [his children’s] legal expectation of receiving child support because he was unable to make the [court-ordered] payments” did not support a score of five points for OV 16). Regarding unlawfully obtained property specifically, where “[t]he record [was] void of any evidence . . . to refute that defendant was unemployed and unable to pay,” his failure to make court-ordered child support payments did not support a score of five points for OV 16 on the basis that property was “obtained unlawfully” within the meaning of MCL 777.46(2)(b). Hershey, 303 Mich App at 338 (noting that “[i]f defendant did not have money, he [could not] be said to have retained or obtained money; a legal obligation to pay money [did] not translate to possession of the money owed”). The Hershey Court “save[d] for another day[] the issue of whether a defendant who actually possesses the money or means needed to pay child support and who simply elects not to do so can be considered to have ‘unlawfully obtained’ property under MCL 777.46.” Hershey, 303 Mich App at 338 n 9.

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