IMPUTING INCOME TO THE INCARCERATED PARENT
Laura Wish Morgan
Courts can "impute" income to a parent who is voluntarily unemployed or underemployed. One question that has arisen with alarming frequency is whether a parent is who imprisoned is voluntarily unemployed or underemployed. Many courts have held that imprisonment is an involuntary act. For example, in Leasure v. Leasure, 378 Pa. Super. 613, 549 A.2d 255 (1988), the husband was sent to prison for two years for crimes unconnected with his support obligation. The trial court had refused to modify the child support obligation, concluding that it was the husband's voluntary act that put him behind bars. The appellate court reversed, finding that incarceration is involuntary. It is highly unlikely, the court concluded, that a parent would seek to avoid child support by going to prison. Other courts have reached the same result. E.g., Bendixen v. Bendixen, 962 P.2d 170 (Alaska 1998) (serving jail time is not the goal of criminal conduct; incarceration is therefore not a voluntary act); Arizona ex rel Department of Economic Security v. McEvoy, 955 P.2d 988 (Ariz. Ct. App. 1998) (father's incarceration rebuts statutory presumption that every obligor can earn minimum wage); State of Oregon v. Vargas, 70 Cal. App. 4th 1123, 83 Cal. Rptr. 2d 229 (1999) (cannot use imputed income to incarcerated father, since he has no earning capacity);Commissioner of Human Resources v. Bridgeforth, 42 Conn. Supp. 126, 604 A.2d 836 (1992); Lewis v. Lewis, 637 A.2d 70 (D.C. 1994) (going to jail is not voluntary act); Pickett v. Pickett, 708 So. 2d 182 (Fla. 5th DCA 1998) (imputing income of $150,000 per year when parent was incarcerated for medicare fraud was error, absent evidence obligor could earn that amount in prison); Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988); People ex rel. Meyer v. Nein, 209 Ill. App. 3d 1087, 568 N.E.2d 436 (1991) (incarceration due to felony drug conviction was involuntary act reducing income); In re Barker, 600 N.W.2d 321 (Iowa 1999) (mother's incarceration on drug charges constitutes change of circumstances, justifying downward modification of her obligation); Sowers v. Reid, 119 Md. App. 600, 704 A.2d 158 (1998) (prisoner is voluntarily impoverished only if he committed the crime with the intention of going to jail); Wills v. Jones, 102 Md. App. 539, 650 A.2d 736 (1995) (where the action leading to the incarceration was not undertaken for the purpose of avoiding support, incarceration does not defeat a motion for modification downward); Franzen v. Borders, 521 N.W.2d 626 (Minn. Ct. App. 1994) (imprisonment for assault of child's mother was not voluntary unemployment); Johnson v. O'Neill, 461 N.W.2d 507 (Minn. Ct. App. 1990); Pierce v. Pierce, 162 Mich. App. 367, 412 N.W.2d 291 (1987); In re Marriage of Edmonds, 53 Or. App. 539, 633 P.2d 4 (1981); Peters v. Peters, 69 Ohio App. 3d 275, 590 N.E.2d 777 (1990); In re Marriage of Willis, 314 Or. 566, 840 P.2d 697 (1992) (incarceration will suspend a parent's child support obligations); Voecks v. Voecks, 171 Wis. 2d 184, 491 N.W.2d 107 (Ct. App. 1992) (incarceration is not shirking of child support obligation, and thus court will allow modification of obligation); Wood v. Wood, 964 P.2d 1259 (Wyo. 1998) (incarceration is not voluntary act).
A growing number of courts, however, have taken the position that since imprisonment is the result of an intentional criminal act, imprisonment is a voluntary act. For example, in McDermott v. Bender, 237 598 A.2d 709 (Del. Fam. Ct. 1990), the obligor spouse was incarcerated for using heroin. The court held that the heroin addiction was self-inflicted and thus would not excuse payment of child support. Accord Charette v. Charette, 23 Fam. L. Rep. (BNA) 1421 (Conn. Super. Ct. Tolland Dist. 4/30/97) (child support obligations of incarcerated, indigent man will continue to accrue while he is imprisoned; custodial parent need not show that the obligor committed crimes with intent to deprive child of support); Davis v. Vance, 574 N.E.2d 330 (Ind. Ct. App. 1991) (obligor must take responsibility for the crimes he committed and all the repercussions that come with breaking the law; to free obligor of his support obligation would serve to free him of some of those repercussions); In re Marriage of Vetternack, 334 N.W.2d 761 (Iowa 1983) (order for child support payments would not be reduced where father incarcerated); In re Marriage of Kern, 408 N.W.2d 387 (Iowa Ct. App. 1987) (after suspension of husband's medical license and conviction for delivering a controlled substance, husband was not allowed to modify alimony obligation); In re Thurmond, 265 Kan. 715, 962 P.2d 1064 (1998) (parent's imprisonment does not, in and of itself, justify abatement of child support); Toups v. Toups, 708 So. 2d 849 (La. Ct. App. 1998) (parent undertook voluntary act that resulted in loss of income); Louisiana v. Nelson, 587 So.2d 176 (La. Ct. App. 1991); In re Interest of M.N.M., 906 S.W.2d 876 (Mo. Ct. App. 1995) (substantially reduced wages received by incarcerated parents do not excuse their statutory obligation to make monetary contributions to the support of their children); Oberg v. Oberg, 869 S.W.2d 235 (Mo. Ct. App. 1993) (court would not modify child support obligation based on father's incarceration for forgery); Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985); Noddin v. Noddin, 123 N.H. 73, 455 A.2d 1051 (1983); Topham-Rapanotti v. Gulli, 289 N.J. Super. 626, 674 A.2d 650 (1995) (incarceration is not substantial change in circumstances, because it is the result of a voluntary act, the commission of a crime); Thomasson v. Johnson, 120 N.M. 512, 903 P.2d 254 (Ct. App. 1995) (criminal act of narcotics possession and distribution was deliberate and carried with it known consequences of incarceration; no modification); Young v. Young, 223 A.D.2d 358, 636 N.Y.S.2d 46 (1996) (trial court may consider that financial difficulties are a result of criminal activity, and refuse modification based on that activity); Richardson v. Ballard, 113 Ohio App. 3d 552, 681 N.E.2d 507 (1996) (incarceration does not reduce support); State ex rel. Jones v. Baggett, 25 Fam. L. Rep. (BNA) 1437 (Okla. July 13, 1999) (gross monthly income based on minimum wage for 40 hour work week may be attributed to imprisoned parent with no income or assets); In re Marriage of Willis, 109 Or. App. 584, 820 P.2d 858 (1991) (criminal conduct of any nature cannot excuse the obligation to pay support); In re Interest of M.M., 980 S.W.2d 699 (Tex. Civ. App. 1998) (impute income of 40 hour work week at minimum wage in absence of contrary evidence of resources); Parker v. Parker, 152 Wis. 2d 1, 447 N.W.2d 64 (1989) (child support cannot be suspended during incarceration as obligor can anticipate that unlawful activity might result in imprisonment).
The Virginia Court of Appeals ostensibly overruled its earlier ruling in L.C.S. v. S.A.S., 19 Va. App. 709, 453 S.E.2d 580 (1995), discussed earlier, wherein the court had held that a legal impossibility to earn will determine earning capacity. In two cases, Brooks v. Division of Child Support Enforcement, No. 1928-96-2 (Va. Ct. App. 6/3/97), and Layman v. Layman, 25 Va. App. 365, 488 S.E.2d 658 (1997), the court held that an obligor's incarceration is voluntary unemployment and income may be imputed.
Courts have been especially loath to allow an incarcerated parent to suspend his or her child support obligations when the incarceration results from a conviction for failure to pay support. The courts reason that it would be against public policy to allow an obligor to profit from his or her own criminal misconduct toward the child. E.g., Commissioner of Human Resources v. Bridgeforth, 42 Conn. Supp. 126, 604 A.2d 836 (1992); Ross v. Ross, 581 N.E.2d 983 (Ind. Ct. App. 1991); Mascola v. Lusskin, 727 So. 2d 328 (Fla. 4th DCA 1999) (in a case of true chutzpah, a man convicted of trying to kill the mother of his children petitioned for modification of child support based on incarceration; because incarceration was the result of his voluntary act, the court held, he may not escape child support obligation by incarceration when he couldn't do it by murder); In re Marriage of Edmonds, 53 Or. App. 539, 633 P.2d 4 (1981); In re Marriage of Blickenstaff, 71 Wash. App. 489, 859 P.2d 646 (1993). See also Kelley v. Kelley, 444 Pa. Super. 286, 663 A.2d 785 (1995) (parent incarcerated for threatening to kill attorney and judge involved in child support hearing not entitled to suspension of child support obligation).
Courts are also loath to suspend child support obligations where the conviction is family related, such as a conviction for child molestation. Reid v. Reid, 57 Ark. App. 289, 944 S.W.2d 559 (1997) (child support obligation not suspended when obligor in prison for raping parties' daughter); In re Phillips, 493 N.W.2d 872 (Iowa Ct. App. 1992) (husband was incarcerated for sexually abusing his step-daughter); Koch v. Williams, 456 N.W.2d 299 (N.D. 1990) (obligor was incarcerated for incest; court concluded that incarceration was self-induced, and thus no modification would lie for change in circumstances); Hollifield v. Hollifield, 925 S.W.2d 153 (Tex. Ct. App. 1996) (obligor jailed for first degree sexual assault of 11 year old daughter).
In the case of incarceration, some courts have chosen to eschew the voluntary/involuntary analysis altogether, and instead focus on the practical issue of whether the obligor has other assets against which the support obligation could be charged. See Alred v. Alred, 678 So. 2d 1144 (Ala. Civ. App. 1996); Clemans v. Collins, 679 P.2d 1041 (Alaska 1984); State, Department of Economic Security v. Valentine, 190 Ariz. 107, 945 P.2d 828 (Ct. App. 1997); Arizona ex rel. Dep't of Economic Security (Miranda) v. Ayala, 185 Ariz. 314, 916 P.2d 504 (Ct. App. 1996) (incarceration does not automatically justify a downward modification of support; it is a "factor" to be considered in petition; case contains excellent review of all cases around the country); Division of Child Support Enforcement ex rel. Harper v. Barrows, 570 A.2d 1180 (Del. 1990); In re Marriage of Vetternack, 334 N.W.2d 761 (Iowa 1983) (court denied motion to modify because father had equity in marital home); Redmon v. Redmon, 823 S.W.2d 463 (Ky. Ct. App. 1992); Hebert v. Hebert, 475 A.2d 422 (Me. 1984); Sodders v. Sodders, 210 Neb. 276, 313 N.W.2d 927 (1981) (court denied modification because obligor had trust on which he could draw to satisfy obligation); Noddin v. Noddin, 123 N.H. 73, 455 A.2d 1051 (1983); Bergen County v. Steinhauer, 294 N.J. Super. 507, 683 A.2d 856 (App. Div. 1996) (father's long term incarceration and lack of personal assets established change of circumstances justifying suspension of his child support obligation; court must focus on length of incarceration and extent of obligor's assets); Thomasson v. Johnson, 120 N.M. 512, 903 P.2d 254 (Ct. App. 1995); Reyes v. Reyes, 946 S.W.2d 627 (Tex. Ct. App. 1997) (father failed to prove he could not earn income in prison or that assets were insufficient to pay support); Proctor v. Proctor, 773 P.2d 1389 (Utah Ct. App. 1989) (incarcerated obligor possessed assets to satisfy obligation); L.C.S. v. S.A.S., 19 Va. App. 709, 453 S.E.2d 580 (1995); Glenn v. Glenn, 848 P.2d 819 (Wyo. 1993). See generally, Annotation, Loss of Income Due to Incarceration Affecting Child Support Obligation, 27 A.L.R. 5th 540 (1995).
New Jersey has adopted an interesting variation of the income/assets approach. In Halliwell v. Halliwell, 326 N.J. Super. 442, 741 A.2d 638 (App. Div. 1999), the question addressed was whether a support obligor may obtain a downward modification of child support during the obligor's incarceration. The court held that in cases where the obligor has been sentenced to a lengthy period of incarceration and has no assets, any action on the obligor's motion should be deferred and transferred to the inactive calendar pending the obligor's release from the custodial sentence. Coincident with the obligor's release, the motion would be considered after each party filed an updated case information statement. Utilizing the child support guidelines then in effect, the court could then easily enter an order retroactive to the date of the obligor's initial motion divisible between current support for the future and an arrearage payment attributable to the period of incarceration subsequent to the date of filing of the obligor's modification motion but based upon the obligor's earning capacity. "This methodology will avoid a criticism of courts that grant modification requests for incarcerated obligors without considering the fact that other debts of the incarcerated obligor are not forgiven simply because of incarceration." The court concluded, "We find fault with the motion judge's conclusion that criminal activity resulting in incarceration is a voluntary act which should not be rewarded by suspending the obligation to pay support during incarceration. One significant difference between an incarcerated obligor and one who is not incarcerated but who has engendered a reduction in income voluntarily is that the latter individual is free to rectify the situation by changing or taking on additional jobs. While so many courts of other jurisdictions, and one court in this state, have compared incarcerated obligors to those who reduce their earnings by choice, these courts fail to acknowledge that the incarcerated obligor chose to commit a crime, but the choice to rectify the situation does not exist."