PUBLISHED OPINION
Case No.: 95-2469-CR
†Petition for
Review filed
Complete
Title
of
Case:STATE OF
WISCONSIN,
Plaintiff-Respondent,
v.
REUBEN GANTT,
Defendant-Appellant.†
Submitted
on Briefs: March 11, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: March 28, 1996
Opinion
Filed: March
28, 1996
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Patrick
J. Fiedler
so
indicate)
JUDGES: Eich,
C.J., Gartzke, P.J., and Sundby, J.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendant-appellant the
cause was submitted on the briefs of Patrick J. Stangl of Stangl Law
Office of Madison.
Respondent
ATTORNEYSFor the plaintiff-respondent the
cause was submitted on the brief of James E. Doyle, attorney general,
with Thomas J. Balistreri, assistant attorney general.
COURT OF
APPEALS DECISION DATED AND
RELEASED March
28, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-2469-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
REUBEN
GANTT,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: PATRICK J. FIEDLER, Judge.
Affirmed.
Before
Eich, C.J., Gartzke, P.J., and Sundby, J.
EICH,
C.J. Reuben Gantt appeals from a
judgment convicting him of failing to provide support for his minor child. He pleaded no contest to the charge,
reserving for appeal his contention that the trial court lacked jurisdiction to
entertain the prosecution because neither he nor the child resided in Wisconsin
at the time the complaint was issued.
That
is the issue he frames on appeal and we conclude, on this record, that the
trial court had jurisdiction. We
therefore affirm the judgment.
The
facts are not disputed. Gantt and his former wife had three children, including
the minor child Ratashia Gantt, born in June 1972, whose support is the subject
of this appeal. When Gantt and his wife
were divorced in 1973, the divorce judgment directed him to pay child support
of $50.00 per week. In September 1992,
a criminal complaint issued alleging that he had intentionally failed to
provide support for Ratashia for a period of 120 days or more from January 1,
1990, to June 1, 1990.[1]
Gantt
did not appear in court on the charge until mid-1994, when a preliminary
hearing was held and an information issued charging him with the offense. He moved to dismiss the information on
grounds that neither he, his former wife nor the child resided in Dane County
during the charged period.[2] The trial court denied the motion and Gantt
pled no contest to the charge.
Adjudging him guilty, the court withheld sentence and placed Gantt on
probation for 36 months on various conditions, including regular payments on
his accumulated support arrearage of $36,877.00.[3]
Relying
principally on two cases, Adams v. State, 164 Wis. 223, 159 N.W.
726 (1916), and Poole v. State, 60 Wis.2d 152, 208 N.W.2d 328
(1973), Gantt argues that, under Wisconsin law, the venue in nonsupport actions
always follows the child, and, as a result, Wisconsin courts lack jurisdiction
in all such cases where the child did not reside in the state during the
charging period.
In
Adams, the defendant was charged and convicted of nonsupport in
municipal court in Waukesha County. He
challenged the conviction on the grounds, among others, that "no offense
was committed in Waukesha county" because his children were living in
Racine County during the time charged.
The supreme court rejected the argument, stating that "[t]he
evidence clearly shows that defendant neglected and refused to support his children
while they were living at Racine as well as while they were living at
Waukesha." Adams,
164 Wis. at 226, 159 N.W. at 727. In so
concluding, the court noted, "The place where the children were, not where
the father was, during the period complained of, fixes the venue of a
prosecution for nonsupport of children."
Id.
Poole involved Wisconsin's version of the Uniform Desertion
and Nonsupport Act, § 52.05, Stats.
(1911). Poole had abandoned his family
in Arizona, after which they moved to Grant County, Wisconsin, where the
charges were brought. He argued that
Wisconsin courts lacked jurisdiction because the "alleged act of
abandonment and nonsupport [occurred in] Arizona and not Wisconsin." Poole, 60 Wis.2d at 155, 208
N.W.2d at 330. The supreme court
rejected the argument, reasoning that the general criminal jurisdiction
statute, § 939.03, Stats.,
which grants jurisdiction to Wisconsin courts for prosecution of acts
undertaken in other states which have "a criminally proscribed consequence
within th[is] state," was sufficient to confer jurisdiction on the Grant
County Circuit Court. Id.
at 156, 208 N.W.2d at 330-31.[4] The court went on to note that it had
already ruled "adversely to [Poole]'s contention" in Adams,
and that "it is clear from Adams that this court has
regarded sec. 52.05 ... as enforceable in the locale of those persons required
to be supported rather than where the father is located." Id. at 156-57, 208 N.W.2d at
331.
We
have no quarrel with either decision.
Neither holds, as Gantt maintains in his argument, that nonsupport
statutes may be enforced only in the place where the persons entitled to
support resided during the period the defendant is alleged to have failed to
support them. As the State points out,
quoting Berg v. State, 63 Wis.2d 228, 238, 216 N.W.2d 521, 526
(1974): "It is a common error in analyzing opinions to assume that the
converse of a statement is necessarily true or intended or because X is
included in Z that Y is necessarily excluded." We do not read either Adams or Poole
as laying down a hard-and-fast rule that in no case may a nonsupport
prosecution be commenced in Wisconsin if the child was not residing in the
state during the charged period.
Beyond
that, we think the cases are distinguishable, for in neither instance was the
defendant under, and in violation of, a "local" court order prior to
the filing of the criminal charge, as Gantt was in this case. In both Adams and Poole
the prosecutions were based not on the violation of a court order but rather on
the general statutory obligation to provide support for minor children.[5] As a result, the obligations underlying
those prosecutions derived not from an accomplished judicial act, as in this
case, but on allegations that the general laws governing parental
responsibility had been violated. And
those obligations ran directly to the children--at the place where they and
their custodial parents resided--without any court or government involvement.
Adams and Poole are thus consistent with the
general criminal-law rule that a crime involving a failure to act is committed
at the place where the act is required to be performed, and we agree with the
State that those cases differ from this one not on the principles of law to be
applied but on the particular facts to which the law must be applied.
We
have no doubt that an action for nonsupport could be maintained against Gantt in
Texas, where Ratashia was living. But
in our opinion, that does not rule out concurrent jurisdiction in Wisconsin
based on Gantt's wilful failure to comply with a valid Wisconsin judgment
requiring him to pay child support to the clerk of the Dane County Circuit
Court.[6]
Circuit
courts in Wisconsin are courts of general jurisdiction, with "original
subject matter jurisdiction over civil and criminal matters not excepted in the
constitution or prohibited by law."
State v. Olexa, 136 Wis.2d 475, 479, 402 N.W.2d 733, 735
(Ct. App. 1987). Gantt has not
persuaded us that, under Adams, Poole, or any other
case, jurisdiction may not attach to the nonsupport prosecution of a father who
is in violation of a valid Wisconsin child-support judgment simply because the
child was not residing in the state during the charged period.
By
the Court.—Judgment affirmed.
[1] The applicable statute, § 948.22(2), Stats., provides in pertinent part as
follows:
Any person who intentionally fails for 120 or more
consecutive days to provide ... child support which the person knows or
reasonably should know the person is legally obligated to provide is guilty of
a Class E felony.
A Class E felony is punishable by a fine not exceeding
$10,000 or imprisonment not to exceed two years, or both. Section 939.50 (2)(e), Stats.
[2] The prosecution stipulated that Ratashia and
her mother resided in Texas between January 1 and June 1, 1990, and that Gantt
lived in California during that same period.
[3] Since the divorce in 1973, Gantt had made
only sporadic payments under the support order.
If Gantt
paid the arrearage during the probationary period, the State agreed not to
oppose his motion to reopen the case and dismiss the charges. If Gantt failed to pay during the period
(and a 12-month extension), but the circuit court determined that Gantt had
made a good faith effort to eliminate the arrearage, it was agreed that a civil
judgment would be entered for the amount owing and the criminal charge reopened
and converted to a misdemeanor violation of the nonsupport law.
[4] Gantt argues that § 939.03, Stats., must be strictly construed in
favor of the accused. We disagree. The strict-construction rule is limited to penal
statutes, State v. Rabe, 96 Wis.2d 48, 69-70, 291 N.W.2d 809, 819
(1980). Section 939.03 is a procedural,
not a penal, statute.
[5] Citing to specific pages in the Adams
and Poole opinions, Gantt states in his brief that "in both
[cases] the defendants violated court orders to pay child support." That is not so. The only reference to "court orders" in those cases is
to the orders entered after conviction.
Adams v. State, 164 Wis. 223, 225, 159 N.W. 726, 727
(1916); Poole v. State, 60 Wis.2d 152, 153, 208 N.W.2d 328, 329
(1973). Gantt's statement is
misleading; there is no suggestion in either opinion that the defendants were
subject to previous judgments or orders of support.
[6] We also distinguish an out-of-state case
relied on by Gantt, State v. Moss, 791 S.W.2d 501 (Mo. App.
1990), which, according to Gantt, "strictly interpreted previous court
holdings that the location of the child was the determining factor regarding
where [a nonsupport] offense was committed." As the State points out, while the Moss court did
hold that a Missouri support decree was irrelevant in attempting to establish
jurisdiction in that state for failing to support a child residing in Arkansas,
the reason was that the defendant was charged with failing to provide food,
clothing and lodging to the child, not with failing to pay the ordered
support. Id. at 503.