*1 Wisconsin, Plaintiff-Appellant, STATE of
v. DUPREY, Defendant-Respondent. S. Craig Appeals
Court of February 88-2120-CR. Submitted No. briefs 1989. March 1989. Decided (Also 837.) reported in 439 N.W.2d there were briefs Steven plaintiff-appellant For Madsen, Bay. Green J. defendant-respondent
For there was a brief first Lukoff, public defender, Mark assistant *2 Milwaukee. Cane, P.J., LaRocque Myse,
Before JJ. CANE, was ordered to Craig Duprey P.J. S. of his income as child and failed make 25% years. The any payment for more than two issue order, whether, by percentage virtue of the presented required prove Duprey had earned the state for 120 consecutive in order to be bound income charges felony nonsupport, sec. over for trial 940.27(2), Stats. Because the state is not income in a case where an order determines the basis, obligation amount of on a the we reverse and remand the cause with directions to rein- felony the charge.
The material facts are undisputed. parties 1985, were May, divorced in and the divorce decree Duprey ordered 25% gross of his income for support of his two minor children. Duprey’s former wife, Amy Lemmen, March, testified 1986, that since Duprey had told her that he was running tavern, a odd doing jobs, and painting for a friend. Duprey made no support payments March, 1986, from through July, July, 1988, 1988. Effective order was modified to require Duprey per $100 month. Duprey payments made in August, amounting to At completion $90. preliminary hearing, probable found cause to felony believe a for nonsupport had been committed and Duprey bound over another court for trial.
Subsequently, on Duprey’s motion, the trial court ordered that the charges felony nonsupport reduced to misdemeanor nonsupport because the state had failed to prove that Duprey had earned income for days. acknowledged The court
120 consecutive presented prelimi- evidence at the sufficient there was intermittently nary hearing was to show that during employed some income at various times and had period twenty-seven no was month when paid. 'Nevertheless, it ruled that because the state failed Duprey had earned income for 120 consecu- to show the days, felony no was committed. The trial court tive nonsupport, charges to misdemeanor amended appeals. the state requires application of
This case a statute to question presenting particular facts, set of thus law without deference to the trial court’s to be reviewed Bucyrus-Erie DILHR, Co. v. 90 Wis. 2d decision. See (1979). Duprey 408, 417, 146-47 was 280 N.W.2d *3 support charged 19, to between March with failure pursuant August 9, 1988, 1986, to sec. 940.27 (1985-86), part: which states (1) support. to In this section:
Failure (a) support” amount “Child means an 49.90, obligated provide s. person legally to under is or 767.51. 767.25
(2) 1, 1990, January any person Before who days intentionally more consecutive fails for 120 or provide spousal, grandchild or child to reasonably should know person or which the knows provide guilty of obligated to is person legally is felony. E a Class 1990, 1, any person who
(3) January Before 120 consecutive intentionally fails for less than provide spousal, grandchild or reasonably should know person knows or which the provide guilty of obligated is person legally is A a Class misdemeanor. secton, 1990, 1, January this
(4) under Before prima following facie evidence of intentional child, provide grandchild spousal or failure support: ( n ) 1, 1990, January person Before for a sub- child, ject requiring grandchild a court order or spousal support payments, child, pay any failure to grandchild spousal support payment required or under the order.
( n ) January secton, Before under this affirmative defenses include but are not limited to child, inability provide grandchild spousal or support. person may inability A not demonstrate provide child, grandchild spousal support or if the but, person employable without reasonable ex- cuse, diligently employment, either fails to seek employment terminates or reduces his or her earn- ings or assets. speaks
Section 940.27 in terms of child as legally obligated provide an amount one is under 49.40, 767.51, secs. 767.25 or Stats. It is a specific amount, the obligation rather prove. parent’s legal that the state must A obligation to meet their human responsibility support- and social will, ing they, children which of their own free bring society regardless into this exists of a *4 49.90(lm), example, Sec. Stats. For setting an amount. support unmarried father’s legal obligation an to a child may paternity not exist until On established. the hand, legal other a married father’s to obligation support is evident for children born to marriage. the support
The order does not create the obligation, merely but rather reaffirms it and sets a
658 , paid. specific The the order is sum to be fact that percentage basis, of a sum in terms of a instead couched obligations to his certain, not relieve one of or does respective change parties’ children, nor her does permits proof. A burdens ability pay, it does to fluctuate with to amount recognizes duty altogether. of his her It relieve one or support may at be uncollectible times. that child duty Nonetheless, constant. to remains proving all Here, its burden the state met sec. show a violation of 940.27. elements Duprey that had been mar- The evidence established minors, ried, children who were fathered two duty reasonably his should have known of therefore dispute is no that failed to them. There payment years. These more than facts make for two Duprey intentionally prima case that facie or for 120 more consecutive failed reasonably obligated he knew he was
provide.
Duprey is to show as an affirmative entitled support. he income to had insufficient defense 940.27(6), exculpa- is an Stats. Insufficient income Sec. tory on makes his conduct excusable circumstance that parties, positions policy grounds. The relative prove respect inabili- information needed to with ty placing pay, compelling reason for this burden is a Duprey. Barber, v. 853 F.2d As in Davis stated 1988): (7th Cir. proving upon place the burden of the state To Much is unreasonable. is able the defendant need to the state would the information which protected ability either such privacy protected his Amendment laws or Fifth appellant right against him- self-incrimination. *5 worked, knowledge self has of where and when he earned, property, how much he the extent of his expenses fairly what other he He had. can to adduce such evidence to an ability pay. defense of lack affirmative Allocating imper- this burden to does not missibly proving shift the burden of an element of the upheld Davis, crime. In nonsupport the court a conviction for an Indiana under statute that made inabil- ity an affirmative defense. The defendant impermissibly claimed that the statute shifted the proof rights burden of him violation of his to due process. process requires The due clause the state to prove all elements included in the definition of the may require offense. Id. at 1421. A state a defendant to provided an affirmative defense it does not serve negate any elements crime that the state is to prove in order to convict. Id. proof
The seventh circuit concluded that of one’s ability offense, is not an element of the constitutionally permissible require therefore it was prove inability the defendant to anas affirmative doing so, defense. In it observed: Physical inability perform duty an affirmative statutorily recognized negates as a defense which responsibility. “justification” criminal Since de- fenses are not based on the nonexistence of offense, essential element of the rather on which make circumstances the accused’s conduct policy grounds, excusable on such defenses should be treated as affirmative defenses which the accused preponderance must establish of evidence. ... Nevertheless, logical there is a distinction between actually those defenses which defeat an essential element of the offense and those defenses which *6 cul- exculpatory that defeat
present circumstances proof beyond despite a reason- pability the state’s of elements. doubt all essential able omitted). (citations n. 3 Id. at Although a child order Davis involves upon percentage a rather than of a sum certain based reasoning payor’s that income, are we convinced equally persuasive Thus, that here. we conclude even is set in terms of the child order in a case where interpret income, of sec. 940.27 a one’s inability require the to show his defendant unconstitutionally not shift the does child Accordingly, the order and to him. we reverse burden to reinstate the to the trial court with directions remand felony charge.
By and cause remanded the Court.—Order reversed with directions. separately (concurring). I because
MYSE, J. write my conclusions on have reached I believe brethren put have of the case and not raised facts issues general proposition it creates more law a of so forth problems purports resolve. than it prosecution of of a violation
This involved the case prelimi- complaint and the court order. criminal alleged nary hearing of violation all around revolved requiring order the defendant a court gross income. his 25% of in the amount may that an be true in some sense While abstract payments even to make individual who fails prosecuted may under this be without a court order us, we before section, is not such a fact situation To need address it. address it here is both unwise unnecessary. The evidence disclosed that the defendant had during period some nominal income in question tavern, doing jobs, running from odd and painting for a friend. This is sufficient evidence to demonstrate that he violated the was since it uncontested no payment during amount was received period this of time. That is all that for the proceed a felony prosecution. with The defense inability pay may raised the defendant since earnings he contends that the from these activities were him to the required insufficient allow make pay- *7 ments.
The trial read the require court statute to court each violated month for 120 consecutive days only and that such violation could occur if he employment. agree had I with majority court erred its construction statute. be interpreted The statute should that a order, of a violation even if involves only one month of nonpayment, persists for 120 days, is nonpayment sufficient for charged to be as felony.