In the latest chapter of what has become an expanding issue for Florida’s appellate courts, another district court has weighed in upon whether or not trial courts should impose child support obligations upon parents who are in prison. In this most recent case, the Fifth District Court of Appeal ruled that the father’s voluntary decision to commit a crime was the sort of voluntary act leading to underemployment or unemployment that allowed courts to impute income and order support.
This case was the third one of its kind that had come before an appeals court in Florida, although it was the first to come before the Fifth DCA. In this case, while the father and mother were still married, the husband was arrested and convicted for seeking to have oral sex with a 12-year-old girl whose “father” he contacted via Craigslist. (In reality, the girl didn’t exist, and the person posing as the girl’s father was actually an undercover FBI agent.) A federal judge sentenced the man to 17 years in jail.
The mother promptly filed for divorce, seeking to end the 11-year marriage. As part of her divorce action, the mother asked the trial court to impose a child support obligation on the father of three. The trial judge sided with the mother, imputing income to the father and imposing a support obligation.
This child support obligation was the crux of the father’s appeal. As someone who was incarcerated and who would remain incarcerated for many years, the father had no income and had no way to earn an income. Under these conditions, he lacked the ability to pay, and, since he lacked this ability, the trial court’s imposition of a support obligation was improper, he argued.
The appeals court, however, upheld the trial court’s ruling. Under Florida law, while parents who lack an ability to pay generally will not be ordered to pay child support, the child support guidelines do allow courts to impose a support obligation if the parent with the obligation is voluntarily underemployed or unemployed. In this instance, the father’s committing a crime and getting imprisoned for it amounted to a voluntary act, which meant that it allowed the trial court to impute income and order support.
One judge dissented, arguing that the requirements of Section 61.30 (2)(b) of the Florida Statutes, which governs imputing income for the purpose of child support, weren’t satisfied in this case. That statute requires the parent asking the court to impute income to identify to the court “the ‘source of the imputed income’ based on available employment.“ If there is no demonstrated ability to pay, there can be no imputing income, the dissent argued.
Just as these three judges were not in agreement, other appeals courts in Florida have also reached differing conclusions. Here in South Florida, the Fourth DCA issued a 2010 ruling that reversed a trial judge’s decision declining to impute income. In that case, the father was sent to jail for committing a domestic battery on the mother. A support obligation should be imposed, that court decided, so that arrearages could accumulate during the father’s incarceration, which he could begin paying off when he got out. More recently, the First DCA issued a ruling last year reversing an order imputing income. Like the dissenting judge in this most recent case, the First DCA determined that the law did not allow for an imputation of income without a demonstrable ability to pay.
For the reliable advice and skilled representation you need in your child support or other family law issue, contact the experienced South Florida child support attorneys at Sandy T. Fox, P.A. Our team has been helping clients for many years with using the legal process to achieve their families’ needs. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.
More blog posts:
Florida Court Upholds Decision Not to Impose Immediate Child Support Obligation Against Father Facing Prison, Fort Lauderdale Divorce Lawyer Blog, Feb. 10, 2017
Calculating Child Support in Florida When a Parent Has Been Recently Fired or Laid Off, Fort Lauderdale Divorce Lawyer Blog, July 27, 2016