WALLACE JAMES PICKETT, III, APPELLANT/CROSS-APPELLEE,
v.
CAROL ANN PICKETT N/K/A CAROL ANN AULT, APPELLEE/CROSS-APPELLANT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that imputing income to an incarcerated parent for child support is improper without a showing of ability to earn, and the reduction should be retroactive to the filing of the modification petition.
The trial court modified a final judgment of dissolution, reducing child support and imputing income to the ex-husband who was incarcerated for Medica…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Incarceration cases and more on FLexlaw
COBB, Judge.
The trial court modified the final judgment of dissolution of marriage to, inter alia, reduce the ex-husband’s monthly child support obligation from $5,500.00 to $2,378.00. The ex-wife does not assert that some reduction in the ex-husband’s child support obligation is unwarranted. Rather, the issues here concern the amount and timing of the reduction. We reverse the modification order in the following respects.
First, the trial court erred in imputing income of $150,000.00 per year to the ex-husband, a radiologist, who was scheduled for sentencing and was in fact sentenced shortly after the modification hearing to 33 months incarceration in federal prison for Medicare fraud. The order of modification contemplates the ex-husband’s incarceration. The imputation of income for child support purposes is improper where there is “no showing that the husband had the capability while he was in prison to earn the amount imputed to him.” Waugh v. Waugh, 679 So. 2d 1, 3 (Fla. 2d DCA 1996), appeal after remand, 705 So. 2d 659 (Fla. 2d DCA 1998). Furthermore, the trial court failed to make a finding of a present ability to pay. Id. See § 61.14(5)(a), Fla. Stat. Given the ex-husband’s incarceration, the cause must be remanded for reconsideration under Waugh.
Second, the court erred in failing to make the reduction in child support from $5,500.00 to $2,378.00 retroactive to August 31, 1995, when the ex-husband filed his petition for modification. See Laliberte v. Laliberte, 698 So. 2d 1291 (Fla. 5th DCA 1997).
We find no abuse of discretion in the award to the ex-wife of lump sum alimony and the denial to her of permanent periodic alimony. These determinations are affirmed.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
W. SHARP and ANTOON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Dep't OF Revenue v. Jackson, 846 So. 2d 486 (Fla. 2003)…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 Mascóla decision. The Fifth District decli…
-
Mascola v. Lusskin, 727 So. 2d 328 (Fla. 4th DCA 1999)…in 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- [*330] in…
-
Dep't OF Revenue v. Llamas, 196 So. 3d 1267 (Fla. 1st DCA 2016)…ad the capability while he was in prison to earn the amount imputed to him.” Id. at 3. The Fifth District applied the principle of Waugh to a case where the prisoner sought a modification of a previously imposed support order in Pickett v. Pickett, 709 So. 2d 182 (Fla. 5th DCA 1998), rejecting the imputation of income to a parent who was scheduled to begin a prison sentence shortly after the modification hearing. However, the Fourth District rejected Pickett in Mascola v. Lusskin, 727 So. 2d 328 (Fla. 4th DC…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dawson-Knapp v. State, 679 So. 2d 1 (Fla. 2d DCA 1995)
- Waugh v. Caren Waugh, 679 So. 2d 1 (Fla. 2d DCA 1996)
- Laliberte v. Laliberte, 698 So. 2d 1291 (Fla. 5th DCA 1997)
- Waugh v. Caren Waugh, 705 So. 2d 659 (Fla. 2d DCA 1998)