Wilkerson v. Wilkerson

220 So. 3d 480, 2017 WL 1423911, 2017 Fla. App. LEXIS 5534
CourtDistrict Court of Appeal of Florida
DecidedApril 21, 2017
DocketCase 5D16-1938
StatusPublished

This text of 220 So. 3d 480 (Wilkerson v. Wilkerson) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilkerson v. Wilkerson, 220 So. 3d 480, 2017 WL 1423911, 2017 Fla. App. LEXIS 5534 (Fla. Ct. App. 2017).

Opinions

PER CURIAM.

Dennis Wilkerson (“Father”) appeals from the final judgment dissolving his marriage to Victoria Glasgow Wilkerson (“Mother”). The trial court awarded sole parental responsibility of the parties’, minor children to Mother, granted her request to change the children’s surname, and ordered Father to pay child support. Father raises a number of issues on appeal, only one of which merits discussion. He argues that the trial court abused its discretion in ordering him to pay child support.

Prior to the dissolution of marriage, Father was convicted of two counts of knowingly attempting to persuade, induce, and entice a person believed to be a minor to engage in illicit sexual conduct. . He is currently serving a lengthy sentence in federal prison. The issue presented is whether the trial court abused its discretion by entering an initial child support order based on imputing income to Father, even though he is incarcerated.

Initially, we address Father’s argument that his due process rights were violated because he was “blindsided” by Mother’s request for child support at trial. Although Mother did not request child support in her petition for dissolution of marriage, contrary to Father’s assertion, the request for child support was listed as an issue for resolution in Mother’s pretrial statement. Likewise, Father’s pretrial statement addressed the child support issue, indicating that he was presently unable to afford child support. Father does not argue that he objected to the issue of child support at trial; further, we do not have a transcript of the trial reflecting any objection. Thus, Father cannot establish that the trial court violated his due process rights in considering the child support issue. See Clark v. Clark, 147 So.3d 655, 658 (Fla. 5th DCA 2014) ("When a pleading [482]*482fails to make a specific demand, courts will accept the issue as being ‘tried by implied consent’ where a pre-trial statement raises the issue and the other party fails to object at the hearing.”).

As to the child support order, this case presents an issue of first impression in our Court and an issue that has divided other jurisdictions.1 Two of our sister courts have considered the question and reached opposite conclusions. See Dep’t of Rev. v. Llamas, 196 So.3d 1267 (Fla. 1st DCA 2016); McCall v. Martin, 34 So.3d 121 (Fla. 4th DCA 2010).

The Florida Supreme Court addressed the related issue of modification of a preexisting child support award in Department of Revenue v. Jackson, 846 So.2d 486 (Fla. 2003). Specifically, the Court addressed “whether a court should permit a parent to have a preexisting support obligation modified or suspended based upon an inability to fulfill the financial support obligation during a period of imprisonment.” 846 So.2d at 488. The Court determined that an incarcerated individual is not entitled to an automatic modification based on a reduction in income resulting from the incarceration. Id. at 494. Rather, the Court held that: (1) an incarcerated parent may file a petition to modify the support obligation; (2) the trial court will hold the petition in abeyance throughout the period of incarceration; and (3) the “support installments, although still outstanding according to the original payment schedule, do not accrue as a vested interest of the child to be reduced to judgment which cannot be altered.” Id. at 491.

Subsequently, in McCall, the Fourth District addressed whether Jackson applies to setting an initial support obligation for an incarcerated parent, based on an imputation of income. 34 So.3d 121. In McCall, the appellant committed a domestic battery on his wife and was sentenced to prison for that offense. Id. at 121. The trial court declined to impute income for purposes of establishing an initial child support award because the appellant had no monthly income as a result of his incarceration. Id. at 122. In reversing, the Fourth District held that “income should be imputed ... so that the arrearages can accumulate until he is able to earn an income.” Id. at 123. The court held that upon release, the trial court should comply with the procedural guidelines set forth in Jackson. See id. (“[I]ncome should be imputed to the father so that the arrearages can accumulate until he is able to earn an income. When release occurs, the court should establish a payment plan to reduce arrearages according to his earning ability, setting a payment plan.”).

Conversely, in Llamas, 196 So.3d at 1270-71, the First District found that neither section 61.30(2)(b), Florida Statutes, nor Jackson require or permit the imputation of income to an incarcerated parent when the incarceration results in a present inability to pay child support. Rather, the court held that Jackson was limited to modification of support orders. 196 So.3d [483]*483at 1269-70. The court cited Justice Par-iente’s separate opinion in Jackson2 and upheld an administrative law judge’s refusal to impute income to an incarcerated parent. Id. at 1270-71. The court held that a trial court should not impute income to an incarcerated parent in order to set an initial child support obligation without a demonstrable ability to pay, or applicability of the doctrine of unclean hands. Id. at 1270-71 & n.2. In doing so, the First District certified conflict with McCall. Id. at 1271.

The decision whether to impute income ■ to an incarcerated parent in order 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. Although in most instances a parent without the ability to pay will not 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.” § 61.30(2)(b), Fla. Stat. (2015).

We believe that an individual’s actions that lead to incarceration are voluntary for purposes of the statute. See, e.g., Mascola v. Lusskin, 727 So.2d 328, 332 (Fla. 4th DCA 1999) (holding father’s conduct leading to incarceration was voluntary for purposes of chapter 61); see also Div. of Child Support Enf't, ex rel. Harper v. Barrows, 570 A.2d 1180, 1183 (Del. 1990) (affirming trial court’s holding that “incarceration is .a foreseeable.result of criminal activity and does not ipso facto relieve one of the obligation to pay child support”); Koch v. Williams, 456 N.W.2d 299, 301 (N.D. 1990) .(deeming appellant’s incarceration to be “self-induced and voluntary”); Proctor v. Proctor, 773 P.2d 1389, 1391 (Utah Ct. App. 1989) (“[A]n able-bodied person who stops working, as an exercise of .personal preference or as a result of punishment for an intentional criminal act, nonetheless retains the ability to earn and the duty to support his or her children.”). We do not think that section 61.30 was intended to operate as a shield tó avoid having an initial support obligation established while the parent is incarcerated. Indeed, “the duty to support one’s children pre-exists other duties voluntarily assumed or imposed by law. It exists as a result of parenthood and came into force before any criminal conviction.” Mascola, 727 So.2d at 332.

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Bluebook (online)
220 So. 3d 480, 2017 WL 1423911, 2017 Fla. App. LEXIS 5534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilkerson-v-wilkerson-fladistctapp-2017.