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Defenses – Inability to Pay – Nonsupport

State v. Christopher M. Clutter, 230 Wis.2d 472, 602 N.W.2d 324 (Ct. App. 1999)
For Clutter: Martha K. Askins, SPD, Madison Appellate

Issue: Whether the nonsupport defense of inability to pay is viable by showing “lack of financial resources alone.”

Holding: “(L)ack of financial resources alone is insufficient to demonstrate inability to pay.”

Inability to pay is a defense to nonsupport. Clutter, on postconviction motion, showed “that he was living in poverty. … However, the affirmative defense of inability to pay requires more.” Apparently, the defendant must show no “earning capacity,” for medical or other reasons. “If a defendant has the capacity to become gainfully employed and realize earnings it is no valid defense to felony nonsupport.”

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