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§ 948.22(2), Nonsupport –statute of limitations, unit of prosecution

State v. Ronald L. Monarch, 230 Wis.2d 542, 602 N.W.2d 179 (Ct. App. 1999)
For Monarch: Craig S. Lambert

Issue: Whether a charge of § 948.22(2) nonsupport based on arrearages accrued more than six years prior to the charge is barred by the statute of limitations

Holding:: The crime of nonsupport is complete after each 120-day period of intentional failure to pay, including arrearages as well as current obligations, regardless of whether or not the child has attained the age of majority; and continues until he or she no longer intentionally fails to pay.

This is an interlocutory appeal, challenging 15 counts of nonsupport, § 948.22(2), based on failure to pay arrearages accruing 2/20/93-10/31/98. Monarch argues that the charges are barred by the 6-year statute of limitations, § 939.74(1), theorizing that nonsupport can only be based on failure to pay a current obligation; and that nonsupport isn’t applicable to arrearages accruing after the child reaches the age of majority. The court of appeals disagrees. Nonsupport allows one count for each 120-day period that a person fails to pay, State v. Grayson, 172 Wis. 2d 156, 158, 493 N.W.2d (1992), and if so charged the statute of limitations begins running from the end of each 120-day period. Arrearages aren’t distinguished from current obligations.. As to Monarch’s contention that this would effectively abolish any statute of limitations for the crime, the court has this to say: “The six-year limitation runs from when the crime is complete or, alternatively, from the end of each 120-day period chargeable as a separate offense. The State may not charge a person with nonsupport for those 120-day periods that are more than six years old. The running of the statute on that period does not, however, discharge a person of potential criminal liability for the sum not paid during that period because that sum may be included in a later arrearage order.” (In other words, arrearages are like a renewable resource for the prosecution, recycled like paper for future re-use; so as a practical matter there is no statute of limitations.)

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