Department of Revenue v. Jackson

• Decision Date: 24 April 2003
• Docket Number: No. SC01-913, No. SC01-914.
• Citation: 846 So.2d 486
• Parties: DEPARTMENT OF REVENUE, Petitioner, v. Kelvin M. JACKSON, Respondent. Department of Revenue, Petitioner, v. Morgan P. Tillery, Respondent.
• Court: Florida Supreme Court

846 So.2d 486

DEPARTMENT OF REVENUE, Petitioner, v. Kelvin M. JACKSON, Respondent.

Department of Revenue, Petitioner, v. Morgan P. Tillery, Respondent.

Nos. SC01-913, SC01-914.

Supreme Court of Florida.

April 24, 2003.

Charles J. Crist, Jr., Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, FL, for Petitioner.

R. Mitchell Prugh of Middleton & Prugh, P.A., Melrose, FL, for Respondents.

LEWIS, J.

We have for review Department of Revenue v. Jackson, 780 So.2d 342 (Fla. 5th DCA 2001), in which the court certified its holding to be in conflict with the decision of the Fourth District Court of Appeal in Mascola v. Lusskin, 727 So.2d 328 (Fla. 4th DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

Facts and Procedural History

The facts of these consolidated cases are virtually identical. In each, the father was initially ordered to pay child support with the payment having been later increased to address support payment arrearages. After entry of these support orders, each father was incarcerated for a crime unrelated to the support obligation, at which time the father filed a petition seeking the suspension or abatement of his child support obligation until his release from prison. The petitions were based upon allegations of the father's present inability to satisfy support obligations as a result of incarceration.

In each case, the trial court noted the interdistrict conflict with regard to the basic issue, but determined, as it was required to do, that the petition should be granted based upon the decision of the Fifth District Court of Appeal in Pickett v. Pickett, 709 So.2d 182 (Fla. 5th DCA 1998). The Department of Revenue (Department) timely appealed each order, and requested that the Fifth District Court of Appeal reconsider its Pickett holding in light of the Fourth District's Mascola decision. The Fifth District declined, stating: "Although this panel might decide these cases differently than did the Pickett panel, we elect to adhere to the rule of Pickett and certify that our decisions are in conflict with Mascola." Dep't of Revenue v. Jackson, 780 So.2d at 343. The Department has sought review in connection with the certified conflict, which requires this Court to determine 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.

Analysis

As the Fifth District recognized in its opinion below, two conflicting views have emerged from the decisions of the Florida district courts of appeal on the issue of the modification of child support payment obligations of persons while incarcerated based upon a diminution of income. In the instant action, the Fifth District determined that modification is appropriate and it should continue to adhere to its prior holding in Pickett v. Pickett rather than adopt the Fourth District's analysis outlined in Mascola v. Lusskin. See Jackson, 780 So.2d at 343. In Pickett, 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 Waugh v. Waugh, 679 So.2d 1, 3 (Fla. 2d DCA 1996)). 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, 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 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. While the holding was expressed extremely narrowly, application of the underlying reasoning adopted by the Fourth District would produce far-reaching results. We granted review of the instant case to resolve the conflict between these decisions rendered by District Courts of Appeal, and now conclude that we must quash the decision under review and remand with instructions.

Section 61.13, Florida Statutes (2001), provides a court that has entered an order requiring a parent to pay child support with continuing jurisdiction to modify the original order upon a showing of necessity to further the supported child's best interest, when the child reaches the age of majority, or if there is a substantial change in the circumstances of the parties. See § 61.13(1)(a), Fla. Stat. (2001). Section 61.14, Florida Statutes (2001), contemplates that either party in the original action may seek modification of an order requiring the payment of support "as equity requires." See § 61.14(1)(a), Fla. Stat. (2001). It further provides that "any unpaid payment or installment of support which has accrued up to the time either party files a motion with the court to alter or modify the support order" may not be reduced by the court. § 61.14(6)(a)(3), Fla. Stat. (2001). However, any unpaid amount that accrues after the filing of a petition to modify may be reduced upon entry of an order on the petition. See id. Moreover, although section 61.30, Florida Statutes (2001), provides presumptive amounts for child support payments based on the supporting parent's monthly income and the number of children, the trial court is vested with discretion to vary the support amount after considering all relevant factors, including, but not limited to, the needs of the child, age, station in life, standard of living, and the financial status and ability of each parent. See § 61.30(1)(a), Fla. Stat. (2001).

This statutory framework provides the parameters within which the resolution of the current conflict must be reconciled. Florida simply does not permit a retroactive reduction of accrued amounts due for support, even if such an approach were in the best interests of both the child in having some amount, albeit smaller, actually paid, and the obligor parent in making a manageable payment rather than being faced with the often unattainable and unrealistic expectation to satisfy large vested arrearages. Recognizing the competing policies and divergent circumstances presented in this arena, we must find an answer that is predicated upon the fundamental goal of solving the human problem before us, rather than exacerbating an already difficult situation.

The instant action requires that this Court consider and address a purported internal conceptual conflict between the provisions in section 61.13 that provide a basis for the trial court to modify a child support decree when it is necessary to the child's best interests, and those which allow modification when there is a substantial change in the parties' circumstances. It is abundantly clear that a substantial change in circumstances, such as the incarceration of an obligor, certainly may not produce a result that is in a child's best interests. Although the public policy considerations underpinning the arguments on either side have some compelling components, in the instant situation we believe that the child's interest in receiving his or her support monies must generally supersede the obligor parent's substantial change in circumstance resulting from incarceration. The full and timely remitting of child support payments is certainly in the best interests of the supported child. Therefore, any abatement or waiver of support payments owed to the child would certainly harm the interests of the child. See Imami v. Imami, 584 So.2d 596, 598 (Fla. 1st DCA 1991) ("[C]hild support is a right which belongs to the child."); see also Cole v. Cole, 70 Ohio App.3d 188, 590 N.E.2d 862, 865 (1990) ("While [the parent] is incarcerated, the needs of his children are not diminished.... The only person to benefit if support is suspended would be [the parent].").

Notwithstanding this logic, practical considerations weigh heavily here, and cannot be simply ignored. It is clear that a substantial change in circumstances will almost always occur when a parent becomes incarcerated and, as a result, is separated from the...