Department of Revenue v. Juan Llamas and Jennifer Duque
196 So. 3d 1267
| Fla. Dist. Ct. App. | 2016Background
- DOR proposed an initial administrative support order requiring the father to pay $840.63/month plus past support; father requested review and a hearing.
- At the hearing the father disclosed he would soon begin a two-year prison sentence for vehicular manslaughter.
- DOR argued the ALJ should impute at least minimum-wage income to the incarcerated father to set child support.
- The ALJ declined to impute income, distinguishing cases that imputed income where incarceration followed misconduct to evade support, and found the father lacked present ability to pay.
- The ALJ therefore declined to set an initial child-support award; DOR appealed.
Issues
| Issue | Plaintiff's Argument (DOR) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether a court may impute income to a parent who will be incarcerated immediately and set an initial child-support award | DOR: Income can be imputed under §61.30(2)(b) and Jackson’s reasoning; an initial obligation should be set using imputed earnings | Father: He lacks present ability to pay while incarcerated; no basis to impute income absent ability to earn while imprisoned | Court: Affirmed ALJ — did not abuse discretion in declining to impute income for an initial support order and declined to follow McCall |
| Whether Department of Revenue v. Jackson requires imputation or a pre-release alteration of support when incarceration precedes an initial order | DOR: Jackson supports imputing income and applying its enforcement/modification procedures | Father: Jackson addresses modification of existing orders, not initial orders; imputation in initial orders requires proof of capacity to earn while incarcerated | Court: Jackson governs modifications, not initial orders; Jackson acknowledged imputation at initial establishment while incarcerated would be error; conflict with McCall certified |
Key Cases Cited
- Department of Revenue v. Jackson, 846 So.2d 486 (Fla. 2003) (establishes procedure for modification petitions delayed until obligor’s release; does not require imputation for initial orders)
- McCall v. Martin, 34 So.3d 121 (Fla. 4th DCA 2010) (held income may be imputed for an initial support order of an incarcerated parent; court here certified conflict)
- Waugh v. Waugh, 679 So.2d 1 (Fla. 2d DCA 1996) (reversed initial support order entered against an incarcerated parent for lack of showing the parent could earn the imputed amount while in prison)
- Pickett v. Pickett, 709 So.2d 182 (Fla. 5th DCA 1998) (refused to impute income when obligor was about to begin prison sentence; later contrasted with Mascola)
- Mascola v. Lusskin, 727 So.2d 328 (Fla. 4th DCA 1999) (treated criminal conduct as voluntary unemployment and applied clean-hands doctrine to deny modification relieving support obligations)
- Koeppel v. Holyszko, 643 So.2d 72 (Fla. 2d DCA 1994) (imputation permissible where party has capability to earn more by best efforts)
- Strassner v. Strassner, 982 So.2d 1224 (Fla. 1st DCA 2008) (trial court’s imputation decision reviewed for abuse of discretion)