STATE v. SMITH, 2005 WI 104

283 Wis.2d 57, 699 N.W.2d 508

Supreme Court of Wisconsin.
No. 2003AP1698-CR.Oral argument January 7, 2005.
Decided July 6, 2005.

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REVIEW of a decision of the Court of Appeals. Reversed.

For the plaintiff-respondent-petitioner the cause was argued b James M. Freimuth, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.

For the defendant-appellant there was a brief and oral argument by Patrick M. Donnelly, assistant state public defender.

¶ 1. PATIENCE DRAKE ROGGENSACK, J.

The State of Wisconsin requests review of a published decision of the court of appeals, State v. Smith, 2004 WI App 116, 275 Wis. 2d 204, 685 N.W.2d 821. The court of appeals reversed a judgment of the circuit court for Green County, the Honorable James R. Beer, presiding, convicting Timothy Smith, Sr. of two felony counts of failure to pay child support, contrary to Wis. Stat. § 948.22(2) (2001-02).[1] The State argues that the court of appeals erred in concluding that the circuit court violated the constitutional principles articulated in United States v. Gaudin, 515 U.S. 506 (1995), by declining to submit a question to the jury on whether child support was ordered by a “court of competent jurisdiction,” as used in § 948.22(1)(a). The State also argues that the court of appeals erred in concluding that the

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circuit court erroneously exercised its discretion in admitting a copy of a certified copy of a Maine court’s child support order.

¶ 2. We conclude that whether a court of competent jurisdiction issued the child support order underlying a prosecution for the crime of failure to pay child support is not an element of that crime. Therefore, the constitutional principles discussed i Gaudin were not implicated when the circuit court declined to submit a question to the jury in that regard. In addition, we conclude that the circuit court did not erroneously exercise its discretion in admitting Exhibit 3, a copy of a certified copy of the Maine court’s child support order, as it was admissible pursuant to Wis. Stat. § 909.015(1) and (7). Accordingly, we reverse the decision of the court of appeals and affirm the judgment of the circuit court.

I. BACKGROUND ¶ 3. Timothy Smith (“Smith”) and Denise Smith were married in Connecticut in 1977. They had three children. In 1989, they were divorced by a district court in Waldo County, Maine. The divorce judgment did not order Smith to pay child support.

¶ 4. Denise Smith and the children subsequently moved to Wisconsin. In February 1992, a Green County child support case manager filed a petition for child support against Smith on Denise Smith’s behalf in the circuit court for Green County. The petition was later transmitted to the Maine Department of Human Services, pursuant to the Uniform Reciprocal Enforcement of Support Act (“URESA”). On October 1, 1992, Smith met with an employee of the Maine Department of Human Services at the Sagadahoc County courthouse,

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and on the same day, he stipulated to the superior court of Sagadahoc County, Maine’s order requiring him to pay $68 per week in child support.

¶ 5. On October 12, 1999, Smith was charged in Green County with two felony counts of failure to pay child support, contrary to Wis. Stat. § 948.22(2), based on allegations that he had not paid child support between July 1, 1996 and August 18, 1997 and again between February 17, 1998 and July 2, 1999.

¶ 6. In pretrial motions and argument, Smith asked the circuit court to conclude that the 1992 Maine court order was invalid. He asserted various reasons for the order’s alleged invalidity: (1) it was issued by a court in Sagadahoc County, rather than a court in Waldo County; therefore, it was not issued by a court of competent jurisdiction; (2) his agreement to pay $68 per week in child support was the result of his meeting with an employee of the Maine Department of Human Services, whom Smith contended had no authority to “prosecute” the URESA petition; therefore, the order was invalid; and (3) the Maine court order did not state under which provision of Maine or federal law it was proceeding upon; therefore, it was not a lawful order. Smith asserted these attacks on the Maine order were appropriate because the third element necessary to prove a Wis. Stat. § 948.22(2) violation is that he knew or reasonably should have known that he was legally obligated to pay child support. Smith contended that because he did not believe the order was valid, that affected his state of mind in regard to the third element. Therefore, the question of the order’s validity was a proper subject for the jury.[2]

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¶ 7. The prosecutor characterized Smith’s theories as a disguised collateral attack on the Maine order, an attack he argued should not be permitted because Smith pursued a remedy in the Maine courts. The prosecutor pointed out that Smith admitted that once the support order began to be enforced, he had challenged it in Maine courts, but after losing, he did not complete an appeal. The circuit court concluded that whether the Maine order was valid was a question for the court. The court concluded that it would give “full faith and credit” to the Maine order, which the court determined was a legal question, and it refused to permit Smith to “collaterally attack” the order.[3]

¶ 8. The case was tried before a jury. At trial, Smith shifted his method of attacking the Maine court order somewhat by asking the court to instruct the jury that it was required to find, as an element of the offense, that a court of competent jurisdiction issued the October 1, 1992 child support order. The circuit court declined, concluding that the question of whether the Maine child support order was issued by a court of competent jurisdiction was a legal question that the court had already determined. Additionally, Smith objected to the admission of Exhibit 3, a copy of a certified copy of the Maine child support order, arguing that the document had not been properly authenticated. The circuit court overruled that objection as well.

¶ 9. The jury found Smith guilty of both counts of failure to pay child support, and the circuit court sentenced Smith and filed a judgment of conviction.

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Smith appealed the judgment, and the court of appeals reversed. The State then petitioned this court for review, which we granted.

II. DISCUSSION
A. Constitutional Challenge

¶ 10. The court of appeals relied on the United States Supreme Court’s decision in Gaudin in reaching its conclusion that the circuit court violated Smith’s constitutional rights by declining to submit a jury question about whether a court of competent jurisdiction had ordered him to pay child support. In Gaudin, the Supreme Court explained that the Fifth and Sixth Amendments to the United States Constitution[4] “require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” Id. at 510; see also In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process Clause protects the

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accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”). We similarly have held that “where the finder of fact is a jury, rather than a judge, proof of all essential elements must be tendered to the jury.” State v. McAllister, 107 Wis. 2d 532, 533, 319 N.W.2d 865 (1982) (citations omitted).

¶ 11. In Gaudin, the defendant had been charged with making false statements on federal loan documents.[5] Gaudin, 515 U.S. at 508. The parties did not dispute that the “materiality” of those statements was an element of that offense and that the government bore the burden of proving “materiality.”Id. at 509. Rather, in Gaudin, the parties disputed whether the element of “materiality” must be submitted to the jury for determination. Id. The government argued, in part, that the question of “materiality” is a legal question and as such, a question for the court, not the jury, to determine. Id. at 511. However, the Supreme Court held that the determination of “materiality” was a mixed question of fact and law. Id. at 512. The Supreme Court then concluded that all elements of a crime must go to the jury, even those elements that involve a mixed

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question of fact and law. Accordingly, the Supreme Court held that the jury should have determined whether the defendant’s statements were “material.” Id. at 512-14.

¶ 12. In the present case, the posture of the question differs from that in Gaudin because Smith and the State dispute whether the question at issue, i.e., whether a “court of competent jurisdiction” issued the Maine child support order, is an element of the crime of failure to pay child support. Because we determine that the question of whether a court of competent jurisdiction ordered Smith to pay child support is not an element of the crime at issue, we also conclude that the constitutional principles articulated in Gaudin are not implicated.

1. Standard of review

¶ 13. Because determination of the statutory elements of a crime is a question of law, our review is de novo. State v. Ruesch, 214 Wis. 2d 548, 552-53, 571 N.W.2d 898 (Ct.App. 1997) (citation omitted).

2. Elements of the crime

¶ 14. In McAllister, as in the present case, we were asked to determine the “essential elements” of a crime, and we were asked to do so for the same purpose as in the present case, that is, to decide whether a circuit court had failed to submit an element to the jury for determination, thereby violating the defendant’s right to have “proof of all essential elements . . . tendered to the jury.” McAllister, 107 Wis. 2d at 533. We began our analysis in McAllister by noting the definition of “crime” provided for by the legislature in Wis.

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Stat. § 939.12. Id. at 535. Section 939.12 in relevant part provides, “A crime is conduct which is prohibited by state law and punishable by fine or imprisonment or both.” (Emphasis added.) Then, to determine the elements of the crime in question in McAllister, we proceeded to examine the statute pursuant to which the defendant had been convicted in order to determine wha conduct the statute prohibited,[6] noting that the ordinary sense of the meaning of the word “element” is “the incidents of conduct giving rise to the prosecution,”McAllister, 107 Wis. 2d at 535, 538.

¶ 15. Here, too, we examine the statute providing for the crime, Wis. Stat. § 948.22(2), to determine the elements of the crime of failure to pay child support, and we focus on the conduct that is prohibited therein. Section 948.22(2) in pertinent part provides, “Any person who intentionally fails for 120 or more consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty. . . .” On the face of § 948.22(2), the elements of this crime are: (1) an intentional failure to provide child support; (2) that continued for 120 or more consecutive days; and (3) actual or constructive knowledge of the legal obligation to provide support. The Jury Instructions

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Committee has come to the same conclusion, proposing these same three elements in Wisconsin Jury Instructions — Criminal 2152.[7]

¶ 16. A requirement that a court of competent jurisdiction has issued the child support order is found in the definitions section of the statute, Wis. Stat. § 948.22(1). Section 948.22(1)(a) provides:

`Child support’ means an amount which a person is ordered to provide for support of a child by a court of competent jurisdiction in this state or in another state, territory or possession of the United States, or, if not ordered, an amount that a person is legally obligated to provide under s. 49.90.

This provision, whether a court of competent jurisdiction issued the child support order, focuses on the characteristics of a court. By contrast, elements of a crime generally are focused on a defendant’s conduct. See McAllister, 107 Wis. 2d at 535, 538. For example, in order to violate § 948.22(2), a defendant must intentionally fail to pay, the failure to pay must continue for 120 consecutive days and the defendant must have known or reasonably should have known of the obligation

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to pay. All of the acts described in subsection (2) focus on the conduct of the defendant, while the phrase relied on by Smith focuses on the characteristics of a court. This leads us to conclude that the phrase is not an element of the crime of failure to pay child support under § 948.22(2). Therefore, the circuit court was not required to give the jury instruction Smith requested in order to satisfy the constitutional requirement that each element of the crime for which a defendant is charged be tendered to the jury. See Gaudin, 515 U.S. at 510 McAllister, 107 Wis. 2d at 532.

¶ 17. Our inquiry, however, does not end there. Smith argues that in Wis. Stat. § 948.22(1)(a), “court of competent jurisdiction” encompasses the concepts of personal jurisdiction, subject matter jurisdiction and a court’s “competency,” while the State counters that the phrase refers only to a court’s subject matter jurisdiction.

¶ 18. To briefly review, subject matter jurisdiction refers to the power of a court to decide certain types of actions. United States v. Morton, 467 U.S. 822, 828 (1984); Kohler Co. v. Wixen, 204 Wis. 2d 327, 336, 555 N.W.2d 640 (Ct.App. 1996); 21 C.J.S. Courts § 10 (1990) (“Jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceedings in question belong.”). Personal jurisdiction, on the other hand, refers to a court’s power “to enter a judgment in personam against an individual party.”Kohler, 204 Wis. 2d at 336; accord 21 C.J.S. Courts § 11 (“Jurisdiction of the person is the power of a court to bring before it the person to be affected by the judgment . . . and to render a judgment binding on such person.”). However, a court’s “competency,” as the term is understood in Wisconsin, is not jurisdictional at all,

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but instead, is defined as “the power of a court to exercise its subject matter jurisdiction” in a particular case. Kohler, 204 Wis. 2d at 337. For example, we have explained that a court may lose its “competency” to adjudicate a particular case if it fails to comply with a variety of statutory procedures, including certain time limitations. Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶ 12-13, 273 Wis. 2d 76, 681 N.W.2d 190.

¶ 19. The legislature has used the phrase “court of competent jurisdiction” in numerous Wisconsin statutes.[8] The parties have not pointed to a single Wisconsin appellate court decision that interprets this phrase in a Wisconsin statute, and our review of Wisconsin case law also has not revealed such a decision.[9]

¶ 20. However, even if we were to conclude, which we do not, that the phrase “court of competent jurisdiction” encompasses one or any number of the characteristics proposed by the parties (i.e., subject matter jurisdiction, personal jurisdiction or competency), the presence or absence of these characteristics is a question of law, to be determined by a court. See Van Deurzen v. Yamaha Motor Corp. USA, 2004 WI App 194, ¶ 9, 276 Wis. 2d 815, 688 N.W.2d 777 (in regard to subject matter jurisdiction) see Marsh v. Farm Bureau

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Mut. Ins. Co., 179 Wis. 2d 42, 52, 505 N.W.2d 162 (Ct.App. 1993) (in regard to personal jurisdiction); State v. Bollig, 222 Wis. 2d 558, 563, 587 N.W.2d 908 (Ct.App. 1998) (in regard to competence). The only exception would be if Smith had alleged historical facts inconsistent with the Maine court’s jurisdiction that the State disputes. However, we are not presented with any factual disputes about which court actually issued the child support order.[10]

¶ 21. And finally, we agree with the circuit court’s conclusion that Smith’s requested jury instruction was an impermissible collateral attack on the validity of the Maine court order in a proceeding to enforce that order. As has been explained:

A collateral attack is an “attempt to avoid, evade or deny the force and effect of a judgment in an indirect

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manner and not in a direct proceeding prescribed by law and instituted for the purpose of vacating, reviewing, or annulling it.”

State v. Bouzek, 168 Wis. 2d 642, 644-45, 484 N.W.2d 362 (Ct. App. 1992) (quoting Schramek v. Bohren, 145 Wis. 2d 695, 713, 429 N.W.2d 501 (Ct.App. 1988)). Bouzek arose from enforcement proceedings on a harassment injunction. Initially, Bouzek had consented to the issuance of the injunction and negotiated a plea agreement wherein he pled guilty to the violation of the injunction. Bouzek, 168 Wis. 2d at 643. After sentencing, he sought to vacate his conviction on the grounds that the underlying injunction was improperly issued. Id. The court of appeals did not address the merits of Bouzek’s arguments because it concluded that the argument constituted an impermissible collateral attack. Id. at 644.

¶ 22. Here, Smith did not plead guilty to failing to pay child support. However, he stipulated to the Maine court’s order when it was entered, and after it began to be enforced, he participated in Maine courts to challenge the order’s validity. He lost his challenge in Maine and did not pursue an appeal of that judgment. Therefore, the Maine court judgment that is dispositive for purposes of our review is the judgment that held that the Maine court child support order was validly issued. The question of the subject matter jurisdiction of the Maine court decisions is now barred by claim preclusion because when the Maine court held that the child support order was enforceable, that determination necessarily included the determination that the court had subject matter jurisdiction to issue the order See Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550,

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525 N.W.2d 723 (1995) (claim preclusion determines all matters litigated). As Restatement (Second) of Judgments explains:

Whether a court whose jurisdiction has been invoked has subject matter jurisdiction of the action is a legal question that may be raised by a party to the action or by the court itself. When the question is duly raised, the court has the authority to decide it. A decision of the question is governed by the rules of res judicata[11] and hence ordinarily may not be relitigated in a subsequent action.

Restatement (Second) of Judgments, § 11 cmt. c (1982). Wisconsin follows the Restatement’s determination that a decision on the question of subject matter jurisdiction is subject to principles of claim preclusion. See H.N.T. v. State, 125 Wis. 2d 242, 250-51, 371 N.W.2d 395 (Ct.App. 1985). Therefore, while we agree that an order entered without jurisdiction is void and may be challenged at any time, see Neylan v. Vorwald, 124 Wis. 2d 85, 99, 368 N.W.2d 648 (1985), Smith did challenge the child support order in Maine. The resulting judgment confirmed the validity of the child support order. Because he did not appeal the judgment, the principles of claim preclusion are operative to settle the question of whether the child support order was issued by a court of competent jurisdiction.[12] See State v. Donohue, 11 Wis. 2d 517, 523-24, 105 N.W.2d 844 (1960). Accordingly,

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the circuit court correctly denied Smith’s requested jury instruction.

¶ 23. In sum, whether a court of competent jurisdiction ordered a defendant to pay child support is not an element of the crime of failure to pay child support and therefore, a question in that regard need not have been submitted to the jury as an element of the crime. Further, because Smith has not identified a historical fact inconsistent with an incident of the Maine court’s jurisdiction that he and the State dispute, whether a court of competent jurisdiction ordered him to pay child support was a purely legal question for the court to determine.

B. Admissibility of Evidence

¶ 24. The State also challenges the court of appeals’ reversal of the circuit court’s decision to admit Exhibit 3, a copy of a certified copy of the Sagadahoc County, Maine court order. The order requires Smith to pay $68 per week in child support, beginning October 1, 1992, and it is signed both by a justice of the superior court in Maine and by Smith, attesting to his agreement with the order.

¶ 25. At trial, an employee of the clerk’s office of the circuit court for Green County, Jean Cook, testified. Cook explained that before working for the clerk of court’s office, she was a child support case manager, and in that capacity she assisted Denise Smith in preparing and filing a petition for child support under federal URESA law. Cook described the URESA petition process that was in place in 1992 and followed in Denise Smith’s case, which started with a petition being prepared

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in Green County and then approved by the circuit court for Green County and sent to Maine. Later, on February 1, 1993, a certified copy of the Maine order was received and placed in the file of the circuit court for Green County, numbered 92-FA-021.

¶ 26. In the course of her testimony, Cook located the certified copy of the Maine order in the circuit court’s case file 92-FA-021. She identified the official raised seal of the Maine clerk of court’s office, as well as an attestation from that office that the order was a true copy. She also testified that she did not receive a judicial certificate indicating that the attestation was in proper form. Additionally, she compared Exhibit 3 and the certified copy of the Maine order in file 92-FA-021, and she testified that Exhibit 3 was a true and accurate copy of the certified copy of the Maine order.

¶ 27. Smith argues that Exhibit 3 should not have been admitted into evidence because it did not comply with 28 U.S.C. § 1738
(2002).[13] The State counters that the exhibit did not need to comply with that federal law and was admissible under Wisconsin statutes, including Wis. Stat. § 909.015(1) and (7). We agree.

1. Standard of review

¶ 28. “We review a circuit court’s decision to admit or exclude evidence under an erroneous exercise of discretion standard.”Martindale v. Ripp, 2001 WI 113, ¶ 28, 246 Wis. 2d 67, 629 N.W.2d 698.

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2. Authentication

¶ 29. Smith argues that the authentication provision of 28 U.S.C. § 1738 must be met for a Wisconsin court to admit an out-of-state court order into evidence. 28 U.S.C. § 1738 provides in relevant part:

The records and judicial proceedings of any court of any . . . State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.

(Emphasis added.) Smith contends that, pursuant to 28 U.S.C. § 1738, the Maine court order should not have been admitted without a judge’s certification that the Maine court’s clerk’s attestation was in proper form.

¶ 30. However, as other courts have recognized, 28 U.S.C. § 1738 does not provide the exclusive basis for authenticating a sister state’s court order. See Donald v. Jones, 445 F.2d 601, 606 (5th Cir. 1971); State v. Wolfskill, 421 S.W.2d 193, 195-96
(Mo. 1967); Price v. Price, 447 N.E.2d 769, 772 (Ohio Ct.App. 1982); Murphy v. Murphy, 581 P.2d 489, 492 (Okla.Ct.App. 1978). As the Fifth Circuit Court of Appeals explained i Donald:

28 U.S.C. 1738 . . . was enacted to implement the full, faith, and credit clause of the United States Constitution by providing a way of exemplifying the records of judicial proceedings held in one state so that such records would be admissible in later judicial proceedings held in another state. Thus, this statute merely means full, faith, and credit must be given if certain requirements are met. However, evidence of judicial

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proceedings may be admissible if less is shown than the statute requires when it conforms to the rules of evidence of the state where the trial is being held.

Donald, 445 F.2d at 606 (emphasis added). Accordingly, we are not required to apply the authentication requirement of 28 U.S.C. § 1738 to the Maine court order at issue here, and we instead turn to the authentication requirements found in Wisconsin statutes.

¶ 31. Wisconsin Stat. § 909.01 provides, “The requirements of authentication or identification as a condition precedent to admissibility are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” (Emphasis added.) Wisconsin Stat. § 909.015 provides examples of authentication that, while not exclusive, satisfy the requirements of § 909.01. For example, § 909.015(1) provides that the matter in question is what its proponent claims when “[t]estimony of a witness with knowledge that a matter is what it is claimed to be” is presented. Furthermore, § 909.015(7), entitled “Public records or reports,” provides another example: “Evidence that a writing authorized by law to be recorded or filed and in fact is recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.”

¶ 32. Here, the State claimed that Exhibit 3 was a copy of the court order issued in Maine. Cook, an employee of the clerk of circuit court’s office, testified that the certified copy of the Maine court order, with the raised seal of that court, was in the circuit court’s file for the underlying child support case, 92-FA-021. She compared that certified copy with Exhibit 3 and verified that Exhibit 3 was a copy of the certified copy

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of the Maine order. Therefore, she had knowledge, and testified accordingly, that the certified copy of the Maine court order had been found in the public office where an item of its nature is kept and that Exhibit 3 was a copy of that order.

¶ 33. We note additionally that Smith did not object that Exhibit 3 was a copy of the certified copy, rather than the actual certified copy of the Maine order. Regardless, Wis. Stat. § 910.03 provides for admission of a duplicate to the same extent as an original unless circumstances, which are not implicated here, are present. Accordingly, the circuit court did not erroneously exercise its discretion in admitting Exhibit 3.

III. CONCLUSION ¶ 34. In sum, we conclude that whether a court of competent jurisdiction issued the child support order underlying a prosecution for the crime of failure to pay child support is not an element of that crime. Therefore, the constitutional principles discussed in Gaudin were not implicated when the circuit court declined to submit a question to the jury in that regard. In addition, we conclude that the circuit court did not erroneously exercise its discretion in admitting Exhibit 3, a copy of a certified copy of the Maine court’s child support order, as it was admissible pursuant to Wis. Stat. § 909.015(1) and (7). Accordingly, we reverse the decision of the court of appeals and affirm the judgment of the circuit court.

By the Court. — The decision of the court of appeals is reversed.

¶ 35. LOUIS B. BUTLER, JR., J. (concurring in part, dissenting in part).

The majority concludes that

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whether a “court of competent jurisdiction” issued a child support order is not an element of the crime of failure to pay child support under Wis. Stat. § 948.22. Majority op., ¶ 2. With this conclusion, I agree. The crime of felony child support contains the following elements: (1) that the defendant intentionally failed to provide child support; (2) that the intentional failure to provide support continued for 120 or more consecutive days; and (3) that the defendant knew or reasonably should have known that he was legally obligated to provide child support. See Wis JI — Criminal 2152 (2001); Wis. Stat. §948.22(1)(a) (2001-02).[1]

¶ 36. The majority then concludes that because proof that a court of competent jurisdiction issued a child support order is not an element of the offense of failure to pay child support, the circuit court was not required to give the jury instruction requested by Smith in order to satisfy the constitutional requirement that each element of the crime for which a defendant is charged be tendered to the jury. Majority op., ¶ 16. The second conclusion does not follow the first. Even though there is no separate element for a court of competent jurisdiction, Smith has nonetheless been deprived of jury consideration of the first and third elements of the offense as they relate to the validity of a child support order itself. Accordingly, while I agree that the decision of the court of appeals must be reversed with respect to its handling of the sufficiency of the evidence claim,[2] I respectfully dissent from that portion of the majority opinion that affirms the trial court.

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¶ 37. Prior to trial for two counts of failure to pay child support, Timothy Smith challenged the validity of the Maine child support order he was accused of violating on multiple grounds. First, because his divorce took place in the district court of Waldo County, Maine, Smith argued that the Sagadahoc County Superior Court in Maine that issued the child support order was not a “court of competent jurisdiction” as that term is used in Wisconsin’s failure to pay child support crime.[3] See
Wis. Stat. § 948.22(1)(a). Second, he argued that the Maine Department of Human Services had no authority to prosecute the Uniform Reciprocal Enforcement of

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Support Act (URESA) petition, rendering the child support order invalid. Third, Smith argued that the Maine child support court order was unlawful because it did not state on which provision of law it was based.

¶ 38. Smith specifically argued that his challenges to the Maine child support order went to the third element necessary to prove the charges against him, namely, that he knew or reasonably should have known that he was legally obligated to pay child support. He argued that if he did not believe the order to be valid, then he lacked the intent necessary to constitute the third element. Thus, Smith argued, the question on the validity of the child support order was a fact question for the jury because it ultimately determines whether he had the requisite criminal state of mind.[4]

¶ 39. The trial court concluded that whether the Maine child support order was valid was a question for the court, not the jury. The court gave “full faith and credit” to the Maine order, and refused to permit Smith to collaterally attack the order. The trial court further refused to instruct the jury on the issue or to allow the defendant to present direct evidence on the issue State v. Smith, 2004 WI App 116, ¶ 3, 275 Wis. 2d 204, 685 N.W.2d 821. The trial court also refused to instruct the jury that it was required to find, as a separate element of the offense, that a court of competent jurisdiction issued the child support order. The court only allowed Smith to present evidence as to the general concepts involved with jurisdiction, in addition to why he believed he was not legally obligated to comply with the child support order. Id.

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¶ 40. The court of appeals reversed the trial court, concluding that there are four elements to this offense, including that a court of competent jurisdiction issued the child support order Id., ¶ 9. This court’s majority correctly determines that there are only three elements, those stated in Wis JI — Criminal 2152. Majority op., ¶ 15. With that conclusion in hand, however, both decisions miss the import of Smith’s argument.

¶ 41. As noted above, the crime of felony child support contains the following elements: (1) that the defendant intentionally failed to provide child support; (2) that the intentional failure to provide support continued for 120 or more consecutive days; and (3) that the defendant knew or reasonably should have known that he was legally obligated to provide child support. See Wis JI — Criminal 2152. As is evident, for Smith to have committed this offense, he had to intentionally fail to provide child support, which he knew or reasonably should have known that he was legally obligated to provide.[5] The State had to prove that Smith had actual or constructive notice of a legal obligation to provide child support. Whether such an obligation actually existed, therefore, cuts to the heart of Smith’s legal defense.

¶ 42. To begin with, “child support” is defined in pertinent part as “an amount which a person is ordered to provide for support of a child by a court of competent jurisdiction in this state or in another state. . . .” Wis. Stat. § 948.22(1)(a). In order to intentionally fail to provide child support, a court of competent jurisdiction had to issue such an order. Otherwise, by definition, no offense could have been committed. Child support is part of the first element of this offense. One cannot

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intentionally fail to pay that which does not exist. Absent a valid order, Smith simply has no legal obligation whatsoever.

¶ 43. The Jury Instructions Committee certainly recognized the fact that the question of whether a valid support order existed might come into play. In defining the first element concerning the intentional failure to provide support, the Committee noted as follows: “For purposes of instructing the jury, the Committee concluded that definition of `support’ would rarely be necessary in the usual case. Should the facts present an issue, the statutes referenced in subs. (1)(a) and (c) may offer some guidance. . . .” See Wis JI — Criminal 2152 cmt. n. 4. Smith attempted to raise facts that would present the issue, but was thwarted by the trial court. Smith set forth his theory that the Maine order was not valid, but was not allowed to present any evidence to the jury. He requested the court to define “child support,” consistent with the Committee’s note that the statute may offer some guidance, but the trial court declined to do so. In short, he was precluded from presenting a defense against one of the essential elements that the State had to prove: whether he intentionally failed to provide child support.

¶ 44. The trial court did allow Smith to present evidence as to why he believed he was not legally obligated to comply with the child support order. Without being able to challenge the order itself, and without child support being defined for the jury, his defense to the third element was likewise completely undercut. There was simply no way for the jury to understand the basis of his challenge regarding his knowledge, actual or constructive, of an obligation that he posited did not exist. The jury was not informed that the order had to be issued by a court of competent jurisdiction.

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¶ 45. Jurisdictional challenges to the validity of foreign judgments are a legitimate matter of inquiry whenever the enforcement of the foreign judgment is sought. Hansen v. McAndrews, 49 Wis. 2d 625, 630, 183 N.W.2d 1 (1971). While the general rule precludes collateral attacks of a valid judgment,[6] when a court acts in excess of its jurisdiction its orders and judgments are void and may be challenged at any time. Kohler Co. v. DILHR, 81 Wis. 2d 11, 25, 259 N.W.2d 695 (1977). The fact that a party is dilatory or lackadaisical in his or her efforts to overturn the judgment is irrelevant. Id. “`It is the duty of the court to annul an invalid judgment.'” Id. (quoting Halbach v. Halbach, 259 Wis. 329, 331, 48 N.W.2d 617 (1951)).

¶ 46. Void judgments cannot be validated by consent, ratification, waiver, or estoppel. Kohler, 81 Wis. 2d at 25. Void judgments may also be attacked collaterally, id., including foreign judgments. See West v. West, 82 Wis. 2d 158, 262 N.W.2d 87 (1978).[7]

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¶ 47. Smith has directly challenged the authority of the Sagadahoc Superior Court to issue the child support order. Accordingly, he was not precluded from collaterally attacking the validity of that order if that court acted in excess of its jurisdiction. By not allowing Smith to present evidence in support of his challenge, and by refusing to instruct the jury as to the definition of “child support,” the trial court effectively impaired Smith’s right to defend against the first element of the offense.

¶ 48. Due process protects a person from conviction except “upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 365 (1970); see also State v. Smith, 117 Wis. 2d 399, 415, 344 N.W.2d 711 (Ct.App. 1983). The State had the burden of proving that Smith intentionally failed to provide child support in this matter, as well as his actual or constructive knowledge of his legal obligation to provide that support. The trial court failed to correctly instruct the jury with respect to the first element by refusing to define “child support.”[8] Omissions in jury instructions are subject to a harmless error analysis. See State v.

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Harvey, 2002 WI 93, ¶ 6, 254 Wis. 2d 442, 647 N.W.2d 189. I conclude that the error cannot be harmless where, as here, not only was the jury not instructed with respect to the definition of child support, but also the defense was precluded from presenting evidence with respect to the first and third elements.

¶ 49. The majority briefly discusses how the concept of a “court of competent jurisdiction” encompasses the concepts of personal jurisdiction, subject matter jurisdiction, and a court’s competency. Majority op., ¶¶ 18-20. As the majority correctly notes, subject matter jurisdiction is the power of the courts to hear and determine cases of the general class to which the proceedings belong. United States v. Morton, 467 U.S. 822, 828
(1984); Kohler Co. v. Wixen, 204 Wis. 2d 327, 336, 555 N.W.2d 640 (Ct.App. 1996). Personal jurisdiction refers to a court’s power to enter a judgment against an individual party. Kohler, 204 Wis. 2d at 336. A court’s competency is not jurisdictional, but is defined as “the power of a court to exercise its subject matter jurisdiction” in a particular case. Id. at 337.

¶ 50. In Wisconsin, Article VII, Section 8 of the Wisconsin Constitution provides that: “[e]xcept as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state.” See also Village of Trempealeau v. Mikrut, 2004 WI 79, ¶ 8, 273 Wis. 2d 76, 681 N.W.2d 190. Thus, “[n]o circuit court is without subject matter

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jurisdiction to entertain actions of any nature whatsoever.”Mueller v. Brunn, 105 Wis. 2d 171, 176, 313 N.W.2d 790 (1982) But see State v. Bush, 2005 WI 103, ___ Wis. 2d ___, 699 N.W.2d 80 (released this same date). This constitutional rule regarding Wisconsin jurisdiction has not always been in effect, however, as our constitution was amended in 1977 to create a unified court system with original jurisdiction vested wholly in the circuit court. See Eberhardy v. Cir. Ct. for Wood Co., 102 Wis. 2d 539, 550-51, 307 N.W.2d 881 (1981). Prior to that time, jurisdiction existed within the Supreme Court, circuit courts, probate courts, county courts, municipal courts, and with justices of the peace See Wis. Const. art. VII, § 8 (1975) and Wis. Stat. ch. 252 (1975) (circuit courts);[9] Wis. Stat. ch. 253 (1975) (county courts); Wis. Const. art. VII, § 2 (municipal courts);[10] Wis. Const. art. VII, § 16 (1975) (tribunals of

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conciliation);[11] Wis. Const. art. VII, § 15 (1965) (justices of the peace);[12] Wis. Const. art. VII, § 14
(judges of probate).[13] Our current jurisprudence regarding subject matter jurisdiction and a court’s competence to act

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in furtherance of that jurisdiction may not have been applicable prior to the creation of the unified court system.

¶ 51. Similarly, Wisconsin’s unified court system is not necessarily the rule in other jurisdictions. Issues of subject matter jurisdiction and a court’s competency to exercise that jurisdiction may carry very different meanings in other states. Smith has every right to put the State to its burden of proof. That includes challenging the order for child support in the first instance.

¶ 52. I agree with the majority that the court of appeals’ decision must be reversed as to the sufficiency of evidence claim, but would nevertheless affirm the court of appeals determination that reversal of the trial court is warranted, and remand this matter to the circuit court for a new trial.

¶ 53. For the foregoing reasons, I respectfully concur in part, and dissent in part, and would remand this matter to the circuit court for a new trial.

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