Paying child support can be a very contentious issue in a divorce, especially when one of the parents in serving a prison sentence. The Fifth District Court of Appeal in Daytona Beach was recently asked to review just that type of case.
A father, Dennis, appealed the trial court’s decision ordering him to child support in the dissolution of his marriage to Victoria. He’s currently serving a 17-year sentence in federal prison and argued on appeal that the trial court erred in ordering him to pay child support while he was incarcerated. Dennis thought it was wrong for the court to impute income on him—meaning that the trial judge attributed or declared that he had income—so that he could pay child support.
The Court of Appeal said that this was an issue of first impression (the court had never reviewed a case with this question). The Court noted that the issue has divided other jurisdictions, with two Florida appellate courts considering the question and reaching different conclusions.
The Florida Supreme Court held that an incarcerated parent isn’t entitled to an automatic modification in his or her child support obligation baseded on a reduction in income during an incarceration. Instead, the Court held that:
- an incarcerated parent may file a petition to modify the support obligation;
- the trial court will hold the petition in abeyance (a temporary suspension) throughout the period of incarceration; and
- the support installments, although still outstanding according to the original payment schedule, don’t accrue as a vested interest of the child to be reduced to judgment which can’t be altered.
With that in mind, the Fourth District found that the supreme court decision applied only to setting an initial support obligation for an incarcerated parent, based on an imputation of income. That court said that “income should be imputed . . . so that the arrearages can accumulate until he is able to earn an income.”
But the First District found that neither the statutes nor the supreme court decision required or permitted the imputation of income to an incarcerated parent when the incarceration results in a present inability to pay child support. That court said the supreme court decision was limited to modification of support orders. They held that a trial court shouldn’t impute income to an incarcerated parent to set an initial child support obligation without a demonstrable ability to pay or a showing that the parent was trying to avoid the support obligation.
With these other Courts of Appeal differing on how to approach this question, the Fifth District Court of Appeal looked at Dennis’ case and explained that the decision whether to impute income to an incarcerated parent to establish an initial child support obligation raises competing policy concerns—the obligation of a parent to provide support for his or her children versus an incarcerated individual’s inability to pay. The appellate court in Palm Beach said that, although in most instances a parent without the ability to pay won’t be ordered to pay child support, the child support guidelines allow for imputation of income if the evidence demonstrates that the obligor’s “unemployment or underemployment is voluntary.”
The court sees an individual’s actions that lead to incarceration (like Dennis) are voluntary for purposes of the statute. The Fifth District said it didn’t believe that the statute was designed to be a shield to avoid having an initial support obligation established while the parent is incarcerated… but that the parent’s duty to his or her children “pre-exists other duties voluntarily assumed or imposed by law.” That duty “exists as a result of parenthood and came into force before any criminal conviction.”
The court went on to explain that the state supreme court recognized the distinction between an award of child support and the practical limitations on the enforcement of that award when a parent is incarcerated. However, the supreme court refused to categorically allow modification of support obligations based on an incarcerated parent’s inability to pay. Instead, it created a procedure for addressing the modification of previously ordered child support during a parent’s incarceration.
The Fifth District wrote:
It would be inconsistent to allow an incarcerated parent’s child support obligation, which was set before incarceration, to continue to accrue until the parent’s release from prison, and yet not allow the trial court to initially set a minimum amount of child support for an individual who is already incarcerated. To preclude an initial award of child support that would accrue during the period of a parent’s incarceration would deprive a child of the support to which he or she is entitled.
As a result, the Fifth District held that the trial court didn’t abuse its discretion in setting an initial child support obligation by imputing income to the incarcerated parent. This reasoning makes sense as Dennis is currently serving a 17-year sentence in federal prison. Without the imposition of an initial support obligation while he’s locked up, the trial court would be precluded from awarding child support for the time he’s in prison if Victoria had to wait to file the petition after his release. When Dennis is released from prison in 17 years, the couple’s children will be adults.
Based on this reasoning, the Court of Appeal in Palm Beach affirmed the decision of the trial court. Wilkerson v. Wilkerson, Case No. 5D16-1938 (5th DCA April 21, 2017).
Contact the DeVoe Law Firm
This case shows that there are many factors that go into a child support order and modification. Make sure that the child support you are paying or receiving for your children is fair and is calculated accurately based on the circumstances. Call DeVoe Law Firm for a free consultation. Get help from an experienced Florida family law attorney.