Justice delayed in child support cases involving incarcerated parents.

• Author: Price, Ned I.
• Position: Florida

"Justice delayed is worse than injustice." (1) Such is the situation resulting from the Florida Supreme Court's holding in Dep't of Revenue v. Jackson, 846 So. 2d 486 (Fla. 2003). Jackson stands for the proposition that a trial court should hold an incarcerated parent's petition for modification of child support in abeyance pending the parent's release. In essence, the failure of the Supreme Court to definitively and timely adjudicate the incarcerated parent's request to reduce, eliminate, or suspend his or her child support obligation effectively creates a separate class of children to whom the support is owed. This article discusses the development of the issue as to whether a parent having a pre-existing child support obligation should be entitled to a reduction or suspension based on an inability to pay as a result of incarceration. The discussion will attempt to reconcile two conflicting schools of thought which culminated in the Jackson decision resulting in a "kiss your sister" approach, delaying the ultimate adjudication of a support issue directly affecting children.

Background/Development of the Case Law

Justice was certainly not delayed when the Third District Court of Appeal in Waskin v. Waskin, 484 So. 2d 1277 (Fla. 3d DCA 1986), first addressed the issue. In Waskin, the father depleted his finances in defending against criminal charges. As a result, the father's medical practice was lost and his ability to generate income was severely diminished. The obligor/father requested a reduction of his child support obligation due to his alleged inability to pay. It should be noted that Mr. Waskin made no effort to secure other employment in order to satisfy his previously adjudicated support obligation. The Third District invoked the "clean hands" doctrine and denied the request for relief and found that Mr. Waskin caused his own financial problems and should not benefit from his own wrongdoing. (2)

In 1996, the Second District Court of Appeal reversed the trier of fact who had imputed income to an incarcerated obligor. In Waugh v. Waugh, 679 So. 2d 1 (Fla. 2d DCA 1996), the Second District created an actual conflict with the Third District in holding that it is error to impute an income level to an obligor unless there is evidence that the obligor could actually earn that amount. The "clean hands" doctrine (and most other equity maxims for that matter) was apparently disregarded by the Second District in affording relief to the incarcerated parent, thereby reducing or suspending his child support obligation. Although Waugh involved a parent whose child support was established post-incarceration, the Second District nevertheless refused to impute income on the basis of a present inability to pay. (3) The Second District simply applied the existing statutory law as codified in F.S. [section] 61.30(2)(b) (2001) in rejecting the wife's imputation argument.

The Second District's analysis in Waugh, was adopted in 1998 by the Fifth District in Pickett v. Pickett, 709 So. 2d 182 (Fla. 5th DCA 1998). The Fifth District reversed the trial court, which had imputed $150,000 per year in income to the obligor father, a physician who was about to be incarcerated for 33 months on welfare fraud charges. In reversing the trial court, the Fifth District relied on Waugh and held that imputation was improper absent proof of a present ability to pay. The Fifth District relied on a strict interpretation of [section] 61.30(2)(b) in rejecting the payee spouse's imputation argument. As such, the trial court's modification order was reversed in light of the father's incarceration.

The conflict between the Third District Court of Appeal and the aligned Second and Fifth districts was clearly identified and addressed in Mascola v. Lusskin, 727 So. 2d 328 (Fla. 4th DCA 1999). In Mascola, the Fourth District adopted the rationale in Waskin and held that an obligor was not entitled to a reduction or suspension of his/her child support obligation as a result of incarceration. The Fourth District reversed the trial court, which found the father's income to be zero and thereupon granted a reduction or suspension in favor of the incarcerated parent. (4) The Fourth District...