Wilkerson v. Wilkerson
2017 Fla. App. LEXIS 5534
| Fla. Dist. Ct. App. | 2017Background
- Father convicted of two counts of attempting to entice a person believed to be a minor into illicit sexual conduct and is serving a lengthy federal prison term.
- Mother sought dissolution of marriage; at trial the court awarded Mother sole parental responsibility, allowed a surname change for the children, and ordered child support.
- Father did not object at trial to consideration of child support; pretrial statements from both parties addressed child support.
- The trial court imputed income to Father despite incarceration and set an initial child support obligation; Father appealed the child support ruling.
- The core legal question: whether a court may impute income to an incarcerated parent to set an initial child support award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether due process was violated by raising child support at trial | Mother: issue was in her pretrial statement; not new | Father: he was “blindsided” because petition did not request support | No due process violation — issue was in pretrial statements and Father raised no trial objection (affirmed). |
| Whether a trial court may impute income to an incarcerated parent to set initial child support | Mother: court may impute income because incarceration stems from voluntary conduct and child deserves support during incarceration | Father: cannot impute income absent demonstrated present ability to pay while incarcerated | Court: may impute income to incarcerated parent for initial child support; affirmed trial court. |
| Whether Jackson (modification during incarceration) governs initial awards | Mother: Jackson’s logic supports setting initial awards that will accrue during incarceration | Father: Jackson limits to modification only; initial imputation improper without ability to pay | Court: Jackson’s framework does not bar initial imputation; aligns with McCall and certifies conflict with Llamas. |
| Policy concern: fairness to child vs. inability to pay due to incarceration | Mother: child’s entitlement to support and prevention of deprivation during incarceration | Father: ordering what cannot be paid contradicts precedent requiring demonstrated ability to pay | Court: balances child’s entitlement with enforcement limits; holds imputing income is permissible (no categorical bar). |
Key Cases Cited
- Department of Revenue v. Jackson, 846 So.2d 486 (Fla. 2003) (held incarcerated parent not entitled to automatic modification; set procedural approach for modification during incarceration)
- McCall v. Martin, 34 So.3d 121 (Fla. 4th DCA 2010) (permitted imputing income to incarcerated parent to accrue arrearages and later set repayment plan)
- Dep’t of Rev. v. Llamas, 196 So.3d 1267 (Fla. 1st DCA 2016) (held Jackson limited to modification and refused to impute income for initial support; certified conflict with McCall)
- Clark v. Clark, 147 So.3d 655 (Fla. 5th DCA 2014) (issues in pretrial statements may be treated as tried by implied consent)
- Mascola v. Lusskin, 727 So.2d 328 (Fla. 4th DCA 1999) (concluded conduct leading to incarceration may be treated as voluntary for child support purposes)
- Hogle v. Hogle, 535 So.2d 704 (Fla. 5th DCA 1988) (to impute income, court must find actual ability to earn more and deliberate refusal to do so)