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§ 948.22(2) (2001-02), Non-Support – “Court of Competent Jurisdiction” – Claim Preclusion

State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, reversing 2004 WI App 116
For Smith: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding: Smith’s unsuccessful prior challenge to the court support order bars him, under principles of claim preclusion, from challenging the validity of the order in the present non-support prosecution, ¶¶21-23.

The court invokes this principle as justification for rejection of Smith’s requested jury instruction on whether the issuing court exercised “competent jurisdiction.” Given the court’s holding that this matter is not an element, and is not to be submitted to the jury, this discussion appears to be dicta. However, to the extent that “court of competent jurisdiction” must indeed be resolved, though by the judge and not the jury, then the discussion becomes meaningful. The lesson is probably that it may not pay to directly challenge the order – the court “agree(s) that an order entered without jurisdiction is void and may be challenged at any time,” ¶22 – because if you do and are unsuccessful then you’re bound by that result.

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