Justice Delayed in Child Support Cases Involving Incarcerated Parents
& #x201c;Justice delayed is worse than injustice.”1 S uch 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. §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 §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 held that the obligor parent had not proven an involuntary change in his circumstances and as a result was not entitled to relief. The argument that the obligor’s actions resulting in his incarceration and lack of ability to pay were voluntary and intentional “carried the day” and gave credence to the philosophy that one should not benefit from his or her own wrongdoing.
As expected, the issue at hand has given rise to two distinct schools of thought in different states. The jurisdictions which afford relief to the incarcerated obligor consider the element of intent in the commission of the crime.5 If the incarcerated obligor has little in the way of assets or income from which support could otherwise be paid and if the crime was not committed to avoid a support obligation, then relief in the nature of a reduction or suspension of child support would be available. In such cases, children to whom support is owed have been effectively “sent to the back of the class” apart from children of nonincarcerated obligors. The child has essentially been relegated to a “victim” whose voice has either not been heard or has been disregarded. The incarcerated parent has, in effect, been rewarded for his or her own misdeeds.
The states refusing to grant relief to an incarcerated obligor predicate their position on the “clean hands doctrine,” i.e., “equitable relief will be denied to one who comes to the court with unclean hands.”6 In this context, the doctrine would preclude a court from relieving a party of a support obligation when any decrease in ability to pay results from one’s own voluntary conduct such as the commission of most, if not all, criminal acts.7
Modification of child support is governed by Ch. 61, the intent of which is to promote equity and is governed by basic rules of fairness.8 The more convincing equitable position encompasses the philosophy that “(a) child’s best interest will be served by having support accrue while his or her parent is incarcerated so that when the parent is released, he or she can begin to repay…the arrears that accrued while he or she was incarcerated.”9 The arrearages would continue to accumulate until the obligor parent begins to earn income. At that point, a court can establish a payment plan or schedule with the goal of decreasing or eliminating the arrearages.10
An obligor’s incarceration may very well insulate him or her from a sanction of contempt to force payment.11 Nevertheless, the Fourth District in Mascola and the school of thought evidenced in Topham-Rapanotti v. Gulli, 674 A.2d 650 (N.J. Super. Ch. 1995), essentially discard any “inability to pay” claim as a justification to eliminate, suspend, or reduce an incarcerated parent’s pre-existing child support obligation. Even though an incarcerated parent can rely on Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985), to avoid further incarceration for nonpayment, he or she is not rewarded in the least with a suspension, elimination, or reduction in the obligation. Notwithstanding the due process protections afforded in Bowen, “It would (nevertheless) be in the children’s best interest to have the unpaid support payments grow in the expectation that one day the father will have the ability to make actual payment.”12
The Stage Is Set
The stage was now set for some type of definitive reconciliation by the Florida Supreme Court. The Third and the Fourth districts denied relief to an obligor whose criminal actions gave rise to an apparent inability to pay a previously adjudicated child support obligation. The Second and Fifth districts granted relief to incarcerated petitioners who were unable to satisfy his/her support obligation due to lack of income. A conflict was created and all eyes looked to the state’s highest court to resolve it once and for all.
The “Middle” and “Final” Position in Florida
In 2003, the Florida Supreme Court finally addressed the conflict between districts in Department of Revenue v. Jackson, 846 So. 2d 486 (Fla. 2003). The Mascola decision arising out of the Fourth District and the Jackson opinion emanating from the Fifth District both involved incarcerated fathers who were ordered to pay child support inclusive of previously adjudicated arrearages. The fathers were subsequently jailed for crimes unrelated to their support obligations. Upon their incarceration, petitions were filed seeking the suspension or abatement of their respective obligations until their release from prison. The petitions were based on an alleged inability to pay as the result of their incarceration.
The trial court in Jackson granted the father’s request for relief based on the Fifth District’s decision in Pickett. The Department of Revenue appealed and requested that the Fifth District reconsider its rationale in Pickett in light of Mascola. The Fifth District declined to reconsider but did, in fact, certify a conflict between the districts.
As noted, the basic issue involved an obligor parent’s ability to modify or suspend a pre-existing child support obligation based on a present inability to pay due to imprisonment. The Supreme Court considered the contrary holdings as well as the equitable precepts set forth in Ch. 61, especially F.S. §61.14 (2001), which contemplate that a party may request a modification of a support order “as equity requires.”13 The court recognized that “the child’s interest in receiving his or her support monies must generally supercede the obligor’s substantial change in circumstances resulting from incarceration.”14 The court also emphasized that “any abatement or waiver of support payments owed to the child would certainly harm the interest of the child.”15
Nevertheless, a majority of the court consisting of four justices followed the holding in Halliwell v. Halliwell, 741 A.2d 638 (App. Div. 1999), wherein the New Jersey Superior Court deferred consideration of an incarcerated parent’s modification request pending the parent’s release from custody. As such, a trial court should generally consider such a modification request at the time of release given the relative circumstances of the parties. The Supreme Court further held that the modification petition be placed on the trial court’s inactive calendar without being subject to dismissal for inactivity.16 The support installments would not accrue as a vested interest of the child which cannot be altered.17 Upon the obligor’s release, the request for relief becomes “ripe” for consideration. At that time the trial court is to structure a payment schedule taking into consideration, inter alia, the factors set forth in F.S. §61.30(1)(a), the obligor’s employment situation, the length of incarceration, the amount of unpaid child support, and any evidence bearing upon the obligor’s attempt to avoid his or her support obligation.
Even though the Jackson majority explicitly stated that the support installments “do not accrue as a vested interest of the child to be reduced to judgment which cannot be altered,” the justices seemingly retreated somewhat two paragraphs later in holding “the total child support amounts which continue to increase after the filing of the…petition generally should not be reduced, but may be restructured.”18 In either event, the child for whom support is being paid is cast in the position of waiting for justice at some future point in time. Have not the needs of the incarcerated obligor been placed above those of the child? Has not the highest court in Florida cast aside the requirement that the substantial change in circumstance be involuntary in direct contravention of Ch. 61 and applicable Florida case law?
Justice Wells, concurring in part and dissenting in part, did not join in the majority opinion. He opined that procedures were already in place to adequately deal with the issue(s) and that any refinement of those procedures would best be left to the appropriate rules committee subject to public comment and scrutiny.19
Justice Pariente, also concurring in part and dissenting in part, advocated a position providing the trial court with the discretion to adjudicate the incarcerated obligor’s request for relief at the time of filing so long as the underlying crime was not an attempt by the obligor to avoid the support obligation.20 Justice Pariente rejected the Fifth District’s holding, which required a reduction or suspension of a child support obligation based on incarceration. She also rejected Justice Harding’s dissent which advocated a denial of a request for relief filed by an incarcerated parent on the basis that the obligor’s reduction in income was voluntary and reasonably anticipated.21
Justice Harding’s dissent provides for a simple application of the substantial change in circumstances burden, i.e., whether the change was or was not reasonably foreseeable. If the change was voluntary or reasonably foreseeable, then the request for relief should be denied as in the case of an incarcerated obligor. If the change was involuntary, then the analysis should continue to determine whether an incarcerated obligor’s petition for an adjustment in child support is warranted.22 Is not Justice Harding’s approach to this issue more consistent with the historical application of the substantial change of circumstances burden of proof? Why should an incarcerated obligor be able to “circumvent” the voluntariness requirement of the substantial change test, a burden which all nonincarcerated obligors must otherwise meet? At what point does justice delayed become injustice at all — five, 10, 15, 30 years? These are all questions which will be magnified once trial courts attempt to implement the Jackson decision.
The issue of an incarcerated parent’s ability to modify or suspend a pre-existing child support obligation has apparently “evolved” to the point of relegating the child for whom support is owed to a position of secondary consideration. The Jackson holding carves out a special class of children to whom support does not have to be paid during the period of their parent’s incarceration. Additionally, the accrued support which has been deferred does not necessarily become vested. Compare that newly created class of children with those children whose parents otherwise voluntarily divest themselves of an income earning ability and would not be entitled to relief pursuant to the long-established law concerning substantial changes of circumstances. The Second and Fifth district courts of appeal followed the law regarding imputation. The Third and Fourth district courts of appeal followed the law regarding substantial change. Although well intentioned, the Florida Supreme Court disregarded the long-standing law regarding the granting or denial of a modification of child support request in this context. It is hoped that the Supreme Court will once again strictly apply the law of substantial change of circumstances to incarcerated obligators who petition for a reduction of their child support payment. As was so aptly noted by Samuel Butler, “Justice, while she winks at crimes, stumbles on innocence sometimes.”23
1 Joseph L. Baring, Jewish Folk Saying, A Treasure of Jewish Quotations (1956).
2 Although Mr. Waskin was not as yet convicted of a crime, the Third District held that there was enough evidence to warrant the denial of his request for relief. The court differentiated between the “reasonable doubt” burden of proof required in a criminal case and the lesser standard of a “preponderance of the evidence” needed in a civil case, especially in light of Mr. Waskin’s substantiated telephone conversations with a purported “hit man” to do away with Mrs. Waskin.
3 The imputation of income to the incarcerated parent at the trial level was based on testimony by the wife of her husband’s income during his last employment before incarceration.
4 Mr. Lusskin was a lawyer ultimately found guilty of solicitation to murder his wife, Kim Mascola. Mr. Lusskin’s conviction resulted in a 14-year prison sentence. Mr. Lusskin petitioned the trial court post-incarceration requesting an elimination of his child support obligation during his prison stay.
5 Voecks v. Voecks, 171 Wis. 184 (Ct. App. 1992); Willis v. Willis, 314 Or. 566 (1992); Peters v. Peters, 69 Ohio App. 3d 275 (1990); Pierce v. Pierce, 162 Mich. App. 367 (1987); Foster v. Foster, 471 N.Y.S.2d 867 (N.Y. App. Div. 1984); Leasure v. Leasure, 378 Pa. Super. 613 (1988).
6 Topham-Rapanotti v. Gulli, 674 A.2d 650 (N.J. Super. Ch. 1995); Mooney v. Brennan, 257 Mont. 197 (1993); In re Marriage of Walters, 575 N.W.2d 739 (Iowa 1998); Davis v. Vance, 574 N.E.2d 330 (Ind. App. 1991); Ohler v. Ohler, 220 Neb. 272 (1985); Noddin v. Noddin, 123 N.H. 73 (1983); Koch v. Williams, 456 N.W.2d 299 (N.D. 1990).
7 Pitts v. Pitts, 525 So. 2d 278 (Fla. 1st D.C.A. 1993).
8 Mascola v. Lusskin, 727 So. 2d 328, 332 (Fla. 4th D.C.A. 1999).
9 Topham-Rapanotti, 674 A.2d 650 (N.J. Super. Ch. 1995).
10 Mascola, 727 So. 2d at 333.
11 Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985).
12 Mascola, 727 So. 2d at 333.
13 Fla. Stat. §61.14 (1)(a) (2001) specifically provides “the court has jurisdiction to make orders as equity requires” regarding petitions for modification of support orders.
14 Department of Revenue v. Jackson, 846 So. 2d 486, 490 (Fla. 2003).
16 Id. at 486.
17 Id. at 491.
18 Id. at 497 (emphasis added).
19 Id. at 494.
20 Id. at 497.
22 Of course, incarceration is never the result of an involuntary act in the conventional sense.
23 Samuel Butler, Hudibras (1684).
Ned I. Price practiced trial law for 28 years with an emphasis on family law. He is a certified family law and circuit civil mediator currently mediating family law issues on a full-time basis. He received his master’s degree in philosophy from the University of South Florida in 1976 and his J.D. from Stetson College of Law in 1978.
Lewis D. Price is a J.D. candidate at Coastal School of Law in Jacksonville with an anticipated graduation date of May 2010.
This column is submitted on behalf of the Family Law Section, Peter Gladstone, chair, and Laura Davis Smith and Ingrid Keller, editors.