Calculating Child Support to a Father Scheduled for Sentencing on Federal Criminal Charges
In Pickett v. Pickett, 709 So. 2d 182 (Fla. 5th DCA 1998), the district court held that the trial court erred in imputing income for purposes of calculating child support to a father who was scheduled for sentencing on federal criminal charges, where there was "no showing that the husband had the capability while he was in prison to earn the amount imputed to him." Pickett, 709 So. 2d at 183 (quoting).
The court in Pickett remanded the case to the trial court for consideration under the principles enunciated by the Second District in its Waugh decision. See id.
In Waugh v. Waugh, 679 So. 2d 1, 3 (Fla. 2d DCA 1996), the Second District reversed the terms of an original support decree that was entered by the trial court while the father was incarcerated. See Waugh, 679 So. 2d at 3.
The trial court had imputed the father's preincarceration income for purposes of calculating his child support payments. See id.
The Second District deemed the income attribution erroneous because there was no showing that the father had the capability to actually earn the imputed amount while incarcerated. See id.
Thus, while Waugh held only that a support decree entered when the father is in prison must include in its calculations the father's present ability to pay, the court in Pickett extended this reasoning and applied it to circumstances where a support decree had been entered prior to the obligor's incarceration, and modification was sought after the party had been imprisoned. See Pickett, 709 So. 2d at 183.
In stark contrast to the decision of the court in Pickett, the Fourth District arrived at a contrary holding in Mascola v. Lusskin, 727 So. 2d at 329.
The Mascola v. Lusskin, 727 So. 2d 328 (Fla. 4th DCA 1999) the court held that "child support obligations may not be modified where the current decrease in income results because the payor has been convicted for attempting to kill the mother in order to eliminate the support obligation." Id. at 333.
Although the direct holding was expressed in terms limited to the specific facts, the reasoning of the court was constructed with broad statements directed to the principle that the commission of any crime is a voluntary action which the obligor knows may result in incarceration and unemployment, and any modification petition based upon this direct consequence should be rejected. See id. at 332.
Although the Fourth District noted the conflict with extant Florida decisions to the contrary, it reasoned that the child support payments should not be modified based on the father's decreased income resulting from voluntary conduct which resulted in incarceration. See id. at 333.