Defendant required to pay victim’s child support obligation as restitution

State v. Michael A. Rakel, 2017AP2519, 2/17/21, District 1 (not recommended for publication); case activity (including briefs)

Michael Rakel was convicted of the 1st degree reckless homicide of Andre Taylor, who had a teenage daughter. Taylor was under a court order to pay child support to her. The court of appeals held that Rakel must now pay restitution in an amount equal to Taylor’s child support obligation.  However, the record was unclear about whether the mother of Taylor’s daughter was eligible to receive the restitution payment for the daughter. The court of appeals remanded the case for further proceedings on that issue.

Section 973.20(1r) allows victims of crimes to recover for their losses. While the statute does not define “victim,” other cases have used the definition contained in §950.02(4)(a), which includes family members of the deceased. See State v. Gribble, 2001 WI App 227, ¶¶70-71, 248 Wis. 2d 409, 636 N.W.2d 488. Thus, Taylor’s daughter is a victim eligible to receive restitution.

Section 973.20 makes no provision for the payment of child support lost due to a crime. However, §973.20(5)(a) permits the sentencing court to order the defendant to pay the child’s special damages that could be recovered in a wrongful death action. And §973.20(3)(c) permits the sentencing court to order the defendant to reimburse an injured person for income lost due to a crime considered at sentencing.

The court of appeals held that Taylor’s daughter lost child support payments due Rakel’s to crime. And she could recover lost child support from Rakel in a wrongful death action under §895.04(2). Therefore, the sentencing court appropriately ordered Rakel to pay Taylor’s child support obligation to his daughter. Opinion, ¶¶15-19.

The circuit court ordered Rakel to pay the lost child support to the mother of Taylor’s daughter on the grounds that she qualified as a “nonlegally responsible relative” under §767.501(2)(a)4. The court of appeals held that there was no evidence in the record to support that conclusion. It reversed and remanded the case for further proceedings on the issue of whether the mother could receive the restitution payments on behalf of the daughter. Opinion, ¶¶25-30.