Judge will rule on Dail support lawsuit
By Matthew Whittle
Published in News on November 29, 2007 1:46 PM
Much to Dwayne Dail's chagrin, no decision was rendered Wednesday on his request to dismiss his former girlfriend's child support suit.
"I'm mad. This is exactly what's wrong with the court system," he exclaimed before storming out of the courthouse after the hearing, angry at the proceedings and how he felt he was portrayed by Lorraine Michaels' attorney.
But, Judge David Brantley said that he would take the arguments of both sides into account, and indicated that a ruling would soon be forthcoming.
The hearing, which was held in Wayne County's family courtroom Wednesday afternoon, was only the latest chapter in a story that has gone on for more than 20 years.
At issue is Ms. Michaels' contention that Dail owes her back child support for the time she spent raising their son Christopher Michaels -- time he spent being wrongly held in state prison for a 1987 rape he didn't commit.
During that time, Dail missed all of Christopher's life, from before he was born until nearly two months before his 18th birthday.
And, while acknowledging that Chris was raised under the sole custody of Ms. Michaels, Dail's attorney, Shelby Benton, explained to the judge that state law specifically prohibits the collection of back child support payments while a defendant is incarcerated.
The portion she cited reads: "A child support payment or the relevant portion thereof is not past due and no arrearage accrues ... during any period when the supporting party is incarcerated, is not on work release and has no resources with which to make the payment."
"It is our contention this case should be dismissed," Ms. Benton said. "He had no ability to pay child support from before birth until August of this year. (The law) says specifically there is no support due. State law is in our favor."
Sarah Heekin, Ms. Michael's attorney, disagreed.
Her point was that there has never been a case such as Dail's, and that the normal reading of the law is inadequate.
She explained that part of the basis for their suit is the portion of the law referring to "resources with which to make the payment," and the fact that Dail is now capable of obtaining those -- especially as he is entitled to request slightly more than $360,000 from the state, as compensation for the years he spent in prison.
Ms. Heekin also contended that the normal three-year statute of limitations on back child support should be lifted because this is not a case of a woman neglecting to exercise her rights in a timely manner, but rather one of a woman not knowing she would ever have that option.
"Nobody had any reason to believe this situation would arise," Ms. Heekin said. "As there is no case law, we have to look at legislative intent, and the General Assembly clearly intended that people with resources not be exempt, even if incarcerated."
But, she continued, the bottom line is that had Dail not been in prison, he would have been required to be involved in Chris' upbringing in some fashion -- possibly through child support payments -- and that Ms. Michaels shouldn't have to suffer the consequences of Dail's wrongful imprisonment.
"Through no wrongful action of her own, she was denied that support," Ms. Heekin said. "If he is entitled to recompense from the state ... she's entitled to compensation for that same period of time."
And, while Dail agreed that it was unfortunate that other people's lives were affected by the injustice inflicted upon him, he didn't think he should be the one to pay for that.
"There is a point there," he said. "I got robbed of my son's life and my son's childhood. And I'm being robbed again by having to be here in this town and in this courthouse as a defendant. Yes, my son got cheated and Lorraine got cheated, too, but not by me."
Since he was released in August after being exonerated by newly found DNA evidence, Dail has worked to re-integrate himself into his son's life, and in October, shortly before his 18th birthday, Chris moved to Fort Myers, Fla., to live with him.
"My son is home with me," Dail said. "And he is loved, and he is wanted."
And, he continued, he plans to use that $320,000 to help pay for a home and for his and his son's education.
He even said that had she come to him, he would have been willing to help Ms. Michaels out.
"She could have asked, and I would have helped her any way I could," he said. "I just haven't had time to catch up yet."
But now it's up to the judge whether the suit will move forward or not.
"This is a very preliminary stage of the process," Ms. Heekin said. "It's a somewhat complicated legal issue. At some point the judge will make his decision."
But in the meantime, she added, if Dail is serious about being willing to voluntarily help Ms. Michaels then that possibility still exists.
"If (he) would like to make an offer, we would certainly consider it," she said.
Adding to the drama surrounding the case is the fact that Ms. Benton was Dail's public defender during his original trial in 1989, and that Ms. Heekin is currently a partner in the same firm as former assistant district attorney Don Strickland, who prosecuted Dail.
Also with Dail Wednesday was Chris Mumma, the director of the N.C. Center for Actual Innocence. Ms. Michaels was not present at the hearing.
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