                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

DEPARTMENT OF REVENUE,                NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-2660

JUAN LLAMAS and JENNIFER
DUQUE,

      Appellees.

_____________________________/

Opinion filed August 4, 2016.

An appeal from an order of the Department of Revenue.

Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney
General, Tallahassee, for Appellant.

No appearance for Appellees.




WINOKUR, J.

      This appeal from a Final Administrative Support Order addresses the child

support obligations of a prisoner. The Administrative Law Judge (ALJ) declined to

award current child support because the father was going to prison shortly after the
hearing and, therefore, lacked present ability to pay support. The Department of

Revenue (DOR) urges this Court to reverse the support order and adopt the holding

of McCall v. Martin, 34 So. 3d 121 (Fla. 4th DCA 2010), which found that the trial

court erred in refusing to set an initial award for child support under similar

circumstances. Because we find that the controlling statutes and Florida Supreme

Court precedent do not permit imputation of income for child-support purposes in

these circumstances, we decline to follow McCall, certify conflict with McCall,

and affirm the Order below.

                                        I.

      DOR filed a proposed administrative support order requiring the father to

pay $840.63 per month in child support, plus past support. The father requested

review, and a hearing was set before the Division of Administrative Hearings. At

the hearing, the ALJ learned that the father would be entering a plea agreement

resulting in two years incarceration for vehicular manslaughter. DOR argued that

at least minimum wage should be imputed to the father while incarcerated, for

purposes of setting a support amount. The ALJ distinguished cases imputing

income to an incarcerated parent when the incarcerated parent had committed

domestic abuse. The ALJ found that the father lacked the present ability to pay

current child support, declined to impute income to the father, and declined to set

an initial award of child support.

                                        2
                                          II.

      Section 61.30, Florida Statutes, sets child-support guidelines and other rules

for determining a child-support obligation. In determining a parent’s income for

this purpose, income can be imputed to an unemployed parent “if such

unemployment . . . is found by the court to be voluntary on that parent’s part . . . .”

§ 61.30(2)(b), Fla. Stat. In determining how much income to impute to a

voluntarily unemployed parent, “the employment potential and probable earnings

level of the parent shall be determined based upon his or her recent work history,

occupational qualifications, and prevailing earnings level in the community if such

information is available.” Id. “A court may impute income to a party who has no

income or is earning less than is available to him based upon a showing that the

party has the capability to earn more by the use of his best efforts.” Koeppel v.

Holyszko, 643 So. 2d 72, 75 (Fla. 2d DCA 1994). The trial court’s decision

regarding imputation of income for purposes of calculating child-support

obligations is reviewed for abuse of discretion. Strassner v. Strassner, 982 So. 2d

1224, 1225 (Fla. 1st DCA 2008).

      A court may modify a child-support obligation if there is a “substantial

change in the circumstances of the parties.” § 61.13(1)(a)2., Fla. Stat.; see also

§ 61.14(1)(a), Fla. Stat. (permitting court to order decrease or increase in the

amount of support “as equity requires, with due regard to the changed

                                          3
circumstances or the financial ability of the parties”). Although this case does not

involve modification of a support order, modification is relevant to the issues

herein.

                                        III.

      In Waugh v. Waugh, 679 So. 2d 1 (Fla. 2d DCA 1996), the Second District

reversed an initial child-support order entered against a parent while he was

incarcerated. The Second District noted that “there was no showing that the

husband had the capability while he was in prison to earn the amount imputed to

him.” Id. at 3.

      The Fifth District applied the principle of Waugh to a case where the

prisoner sought a modification of a previously imposed support order in Pickett v.

Pickett, 709 So. 2d 182 (Fla. 5th DCA 1998), rejecting the imputation of income to

a parent who was scheduled to begin a prison sentence shortly after the

modification hearing. However, the Fourth District rejected Pickett in Mascola v.

Lusskin, 727 So. 2d 328 (Fla. 4th DCA 1999), holding that commission of a crime

is a “voluntary act” resulting in unemployment (i.e., incarceration). Moreover, the

particular crime committed by the incarcerated parent (soliciting the murder of his

girlfriend after she became pregnant to avoid any support obligation) demanded

application of the “clean hands doctrine” to ensure that the incarcerated parent did

not benefit from his criminal activity. Id. at 332. As such, the Fourth District

                                         4
concluded that support payments should not be modified in spite of the

imprisonment. Id. at 333.

      The Supreme Court resolved the conflict between the Fourth and Fifth

District in Department of Revenue v. Jackson, 846 So. 2d 486 (Fla. 2003). The

Supreme Court rejected the Pickett rule that support must be modified because the

incarcerated parent had no ability to pay. Id. at 494. While the Court held that it

approved Mascola, it only did so “to the extent that it provides that an incarcerated

parent may not automatically have his or her child support payment obligations

modified based solely on a reduction in income resulting from incarceration.” Id.

Rather than adopt either the Pickett or the Mascola approach, the Supreme Court

implemented a procedure to allow the parent seeking modification of a support

award due to incarceration to file a petition to modify, requiring the trial court to

place the petition in abeyance until the obligor parent’s release. Id. at 491. Once

the parent is released from incarceration, the trial court would hear the

modification petition, taking into account numerous factors, including “any

additional considerations touching upon the obligor’s attempt, if any, to evade his

or her child support obligations.” Id. at 492.

      The point of Jackson was clearly to address modification of a previously

ordered child-support obligation when the obligor becomes incarcerated. Jackson

resolved this issue by creating a process that explicitly addresses modification of a

                                           5
support order. The Jackson opinion mentioned Waugh—involving an initial

support order rather than a modification—only in the context that Waugh provided

the basis for the district court’s decision in Pickett. The Jackson Court neither

approved nor rejected Waugh, which suggests that the Court did not mean for its

decision to apply to initial support orders. This conclusion is bolstered by a

passage in Justice Pariente’s separate opinion, which addressed initial support

obligations as follows:

      The Department of Revenue (DOR), which is the appellant in both of
      these actions, acknowledges that if the initial child support obligation
      is established at the time that the parent is incarcerated, then it would
      be error to impute income to that parent without showing an
      independent source of income.

Jackson, 846 So. 2d at 498 (Pariente, J., concurring in part and dissenting in part).

In supporting this conclusion, Justice Pariente cited Waugh for the proposition that

the incarcerated parent must have the capacity to earn the imputed amount while in

prison. Id. It seems that DOR conceded in Jackson that income cannot be imputed

to a parent incarcerated at the time an initial support obligation is established.

      The Fourth District in McCall, however, read Jackson differently. The lower

court in McCall had declined to make any provision in the final judgment of

dissolution of marriage for the father’s share of child support, ruling that he was

“in prison and has no income.” McCall, 34 So. 3d at 122. Although McCall

involved an initial support order rather than a modification of a previously imposed

                                           6
support order, it ordered the lower court to impute income to the father and to

follow the procedure set out in Jackson for enforcement of that order. Id. at 123.

                                         IV.

      The tension between a child’s need for support and an incarcerated parent’s

inability to provide such support is unavoidable. While the McCall court’s solution

is not necessarily inconsistent with the rationale of Jackson, we find that it is not

supported by the holding of Jackson or by statute. Jackson did not, as the McCall

court seems to suggest, simply adopt Mascola and hold an incarcerated parent is

voluntarily unemployed and accordingly cannot have a support obligation

modified. 1

      Nor did the Jackson Court rule that a court errs in declining to impute

income to an incarcerated parent. Instead, the Jackson Court established a

procedure that applies specifically to modification requests, and that does not

require the court to alter the support obligation in any way prior to the completion

of the prison sentence. Indeed, as Justice Pariente noted, the Jackson Court (not to

mention DOR itself) acknowledged that it would be error to impute income to an

incarcerated parent if the initial child-support obligation is established at the time



      1
         Indeed, this view is more consistent with Senior Justice Harding’s
concurring and dissenting opinion, in which he indicated that child-support
arrearages should accumulate and vest while the obligor parent is imprisoned.
Jackson, 846 So. 2d at 501.
                                     7
that the parent is incarcerated. It is difficult to conclude that Jackson requires

imputation of income when imputation in this circumstance was called “error.”2

                                        V.

      In summary, Jackson does not require imputation of income in this case. We

find that the ALJ reasonably applied section 61.30(2)(b) and did not abuse his

discretion in declining to impute income to the father. In doing so, we certify

conflict with McCall.

      AFFIRMED.

OSTERHAUS, J., CONCURS; RAY, J., CONCURS IN RESULT WITH
OPINION.




      2
        This is not to say that a court errs any time it imputes income to an
incarcerated parent. Although not at issue here, the clean hands doctrine might
permit imputation of income to a prisoner, for instance, whose crime constituted an
attempt to evade child support. The court here did not abuse its discretion in
refusing to apply this doctrine in this case.
                                           8
RAY, J., concurring in result.

      If I were writing on a clean slate, I would adopt the holding and rationale of

the Fourth District Court of Appeal’s decision in McCall v. Martin, 34 So. 3d 121

(Fla. 4th DCA 2010), and conclude in this case that the father’s incarceration for

vehicular manslaughter and resulting loss of income was not a valid reason to deny

setting an initial amount of child support attributable to him based on imputed

income. I believe the reasoning of McCall adheres to the legislative directive of

section 61.30(2)(b), Florida Statutes (2014), is a logical extension of the Florida

Supreme Court’s decision in Department of Revenue v. Jackson, 846 So. 2d 486

(Fla. 2003), and furthers the child’s best interest. Yet, I am unable to reconcile this

result with precedent from this Court authorizing the imputation of income only

when the parent owing a duty of support has the actual ability to work and is

refusing to do so in order to avoid support obligations. See Strassner v. Strassner,

982 So. 2d 1224, 1225 (Fla. 1st DCA 2008) (citing Stebbins v. Stebbins, 754 So.

2d 903, 907 (Fla. 1st DCA 2000)). Because the record in this case does not support

such a finding and in the absence of a Florida Supreme Court decision directly on

point, I agree that the Administrative Law Judge did not abuse his discretion in

declining to impute income to the father.




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