Mascola v. Lusskin, 97-1937.

• Decision Date: 17 February 1999
• Docket Number: No. 97-1937.,97-1937.
• Parties: Kim Lasky MASCOLA, Appellant, v. David LUSSKIN, Appellee.
• Court: Florida District Court of Appeals

727 So.2d 328

Kim Lasky MASCOLA, Appellant, v. David LUSSKIN, Appellee.

No. 97-1937.

District Court of Appeal of Florida, Fourth District.

February 17, 1999.

Diane Tutt, Plantation, and Chriss Walker of Department of Revenue, Office of Child Support Enforcement, Tallahassee, for appellant. William L. Gardiner of Gardiner and Gardiner, P.A., Fort Lauderdale, for appellee.

FARMER, J.

In this child support case, the principal issue is whether the criminal conviction of the payor parent and resulting incarceration for a lengthy time is properly a basis to deny or reduce child support. We align ourselves with the third district, disagree with the second and fifth districts who have decided the issue to the contrary, and certify conflict.¹

The father is a lawyer who was accused of soliciting the murder of his girlfriend after she became pregnant with twins. He was ultimately found guilty of two counts of solicitation to commit first-degree murder and two counts of solicitation to commit the killing of unborn quick children and was sentenced to 14 years in prison where he is now confined. Lusskin v. State, 690 So.2d 611 (Fla. 4th DCA 1997).² As a consequence of his conviction, the Florida Bar has disbarred him from the practice of law. The Florida Bar v. Lusskin, 707 So.2d 1127 (Fla.1998).

Before the criminal conviction, the trial court imputed $2,000 monthly income to the father and ordered child support for both children of $656 monthly. After the conviction and sentence, the father moved to modify the support and sought to have it eliminated while he serves his sentence, saying that as a convict he has no income and that none can be imputed to him because his incarceration is involuntary. The mother argued that the father had the ability to pay the $656 child support previously ordered, but through his own voluntary action and intentional conduct he divested himself of that ability. She argued that the action culminating with his arrest, conviction and incarceration was voluntary, self-induced conduct and thus is a legally insufficient basis to modify his support obligation. In granting the modification, the trial court found that the father's "current income is zero."

The vexing issue here is whether an incarcerated obligor parent without current actual income or assets is entitled to be relieved of the obligation to pay child support while imprisoned. To modify child support a payor must establish a substantial involuntary change in the payor's circumstances.³ Overbey v. Overbey, 698 So.2d 811, 814 (Fla.1997) (requirement that change in circumstance to modify support be involuntary is to ensure that duty to furnish adequate support is not deliberately avoided); Chastain v. Chastain, 73 So.2d 66 (Fla.1954); Bernstein v. Bernstein, 498 So.2d 1270 (Fla. 4th DCA 1986) (change in circumstances must be material, involuntary and permanent in nature). Moreover, a court may, in its discretion, impute income to a spouse based upon past earnings and earning potential. Beers v. Beers, 23 Fla. L. Weekly D2370, 724 So.2d 109 (Fla. 5th DCA 1998); Warren v. Warren, 629 So.2d 1079 (Fla. 3d DCA 1994). Where a parent has an ability to earn, the trial judge should impute an income according to that which could be earned by the best efforts to gain employment equal to parent's capabilities, and on that basis an amount of support as if the parent were in fact earning the income so imputed. Hayden v. Hayden, 662 So.2d 713, 716 (Fla. 4th DCA 1995).

The pertinent cases are Pickett v. Pickett, 709 So.2d 182 (Fla. 5th DCA 1998); Waugh v. Waugh, 679 So.2d 1 (Fla. 2d DCA 1996); and Waskin v. Waskin, 484 So.2d 1277 (Fla. 3d DCA 1986),rev denied, 494 So.2d 1153 (Fla.1986). The second district in Waugh concluded that it was error to impute pre-incarceration income to the obligor unless there was evidence that the obligor could actually earn that amount while imprisoned. 679 So.2d at 3. The conclusion was stated without any analysis or discussion. In Pickett, the fifth district simply followed Waugh, again without discussion. 709 So.2d at 183.

In Waskin, the third district held that the adverse impact on a former husband's financial situation from certain publicity and expenses did not justify a reduction in his obligations for child support and alimony. The publicity and expenses arose form defending himself against criminal charges that he had sought to hire someone to kill his ex-wife. The support issue occurred during the pendency of the criminal charges, and the facts showed that the father had spent all of his assets in defending the criminal charges and had virtually lost his medical practice. The decision and rationale of the third district are summed up in the following excerpts from its opinion:

"If, as the cases tell us, the clean hands doctrine prevents a court of equity from relieving a former husband of his obligation to pay alimony to his former wife where the decrease in the former husband's financial ability to pay (the requisite substantial change in circumstances) has been brought about by the former husband's voluntary acts of, for example, permitting a thriving medical practice to be closed down and making no effort to seek other employment, or otherwise willfully divesting himself of the ability to pay, then, most assuredly, the clean hands doctrine should have prevented the entry of the order under review which, inter alia, reduced the former husband's alimony and child support obligations. [c.o.]

. . .

"We have little difficulty concluding that Waskin's voluntary act in seeking to do away with his ex-wife—the epitome of unclean hands—was the cause of his financial woes. What Waskin did to bring about his financial downfall is, quite obviously, far more condemnable than closing down a lucrative practice, failing to seek gainful employment, or going on spending sprees. It does not matter in this proceeding whether Waskin is ultimately convicted of the crime with which he is charged, even as it did not matter, the trial court's finding to the contrary notwithstanding, that when Waskin's motion to modify was filed and ruled upon, the criminal charges against him then stood dismissed. Whether a criminal jury concludes beyond a reasonable doubt that Waskin is guilty of solicitation, or, as happened, a trial judge in the criminal division concludes that Waskin's conversations with Tretola did not go far enough to become a crime, is simply not important in this matter of Waskin versus Waskin. What is important here is that the conversation between Waskin and Tretola indisputably occurred, that Waskin admittedly believed that Tretola was a `hitman,' and that in the conversation Waskin indisputably requested Tretola to do away with the ex-Mrs. Waskin. Under these circumstances, it can be readily said that Waskin's acts brought about his own arrest and prosecution, as well as the financial consequences of those events, whatever the outcome of the criminal proceeding." [e.s.]

484 So.2d at 1277, 1278-1279. Judge Pearson could well have been writing about the facts in this case.

To be sure, the crimes are different in these cases. The particular crime for which the obligors were incarcerated in Waskin and the present case is that they sought to have the custodial parent killed to avoid support obligations. Waugh does not state the crime for which the payor was convicted. In Pickett the payor was convicted of a crime unrelated to the underlying support obligation, namely Medicare fraud.

The States allowing the incarceration to relieve the obligor of some or all of the support obligation consider the obligor's intent in committing the crime resulting in the imprisonment. See, e.g., Willis v. Willis, 314 Or. 566, 840 P.2d 697, 699 (1992); Voecks v. Voecks, 171 Wis.2d 184, 491 N.W.2d 107, 109 (Ct.App.1992); Peters v. Peters, 69 Ohio App.3d 275, 590 N.E.2d 777 (1990); Pierce v. Pierce, 162 Mich.App. 367, 412 N.W.2d 291, 293 (1987); Foster v. Foster, 99 A.D.2d 284, 471 N.Y.S.2d 867, 869 (N.Y.App.Div.1984). In these States, if there are no assets and there is no showing that the obligor became incarcerated to avoid the support obligation, an obligor is entitled to a reduction in support payment. In fact, at least one court has squarely held that "incarceration is an involuntary situation, warranting relief from the support obligation under the change in circumstances standard." Leasure v. Leasure, 378 Pa.Super. 613, 549 A.2d 225, 227 (1988). The Pennsylvania court reasoned that:

"barring an incarcerated and indigent parent from seeking a modification provides no present benefit to the child. Imposing upon the incarcerated parent a continuing support obligation, beyond his ability to pay, does not help the child. Rather it simply adds to an accumulating burden which falls upon the parent when he is least able to bear it."

Id. The rationale of the second and fifth districts is consistent with these cases.

The Courts refusing to allow the incarceration to relieve the support obligation generally base their conclusion on the idea that imprisonment results from purposeful, intentional conduct and is therefore the result of a voluntary act. See Topham-Rapanotti v. Gulli, 289 N.J.Super. 626, 674 A.2d 650 (Ch. Div.1995); Mooney v. Brennan, 257 Mont. 197, 848 P.2d 1020 (1993); In re Marriage of Phillips, 493 N.W.2d 872 (Iowa App. 1992), overruled by 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, 369 N.W.2d 615 (1985); Noddin v. Noddin, 123 N.H. 73, 455 A.2d 1051 (1983); Koch v. Williams, 456 N.W.2d 299 (N.D.1990); see also Willis v. Willis, 109 Or.App. 584, 820 P.2d 858 (1991), reversed on appeal, 314 Or. 566, 840 P.2d 697 (1992). The third district's analysis in Waskin follows this view.

As the courts in New Jersey and Iowa have stated:

"Criminal conduct of any nature cannot excuse the obligation to pay support. We see no reason to offer

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