Support - Child and Spousal - § 4-2 (H) - § 4-3 (A)
2009---Murphy v. Commonwealth of Virginia, Dep't of Social Srvc's, et al., Va. Ct. of Appeals, Unpublished, No. 1060-09-4
Trial court did not err in calculating father's child support arrearages using the unitary amount for both children for each month of nonpayment, despite the fact that the oldest child became emancipated approximately 18 months prior to the hearing. The parties entered into a settlement agreement which set a unitary amount of support for both children, and stated that "child support shall continue to be paid for a child until that child [becomes emancipated]." The agreement further stated that each party had a right to petition a court for a recalculation pursuant to Virginia law. The Court of Appeals found that such language regarding emancipation and recalculation was not self-executing, thereby leaving no specific language in the agreement for how the parties should recalculate support when the oldest child became emancipated. Thus, father owed the unitary support amount until a court entered an order modifying it, regardless of the emancipation of his oldest child.
2007---Nordstrom v. Nordstrom, 50 Va. App. 257
A trial court has no statutory or inherent authority to order restitution of child support payments pursuant to an erroneous order.
In the event of an over-payment, a credit towards any future support may be appropriate. (dicta)
1995---Buxbaum v. Buxbaum, 20 Va. App. 181
A spouse ordered to pay support must pay according to the terms of the decree, and payments made in excess of the amount ordered are gifts or gratuities and cannot be credited to his obligation to pay the support award.
Husband was not entitled to credit against his spousal support obligation for overpayments of child support made to wife, where the parties never agreed nor had an understanding of any kind that the overpayments of child support were to be applied to future spousal support obligations.
1961---Newton v. Newton, 202 Va. 515
Husband agreed to pay child support to his Wife. He reduced the amount he was paying after Wife refused to let one child visit him. The court held that Husband was not entitled to reduce the payment. The court also held that Husband was not entitled to recover overpayments that he had made. The court held that voluntary payments made under a mistake or in ignorance of law, but with full knowledge of all the facts or with the means of such knowledge, and not induced by any fraud or improper conduct on the part of the payee, could not be recovered.
2010---Barrett v. Kantz, Va. Ct. of Appeals, Unpublished, No. 2506-09-1
Trial court did not err in refusing to retroactively modify child support back to the date on which mother filed her motion to modify, which was three months after the parties entered into a consent order providing that mother would forego child support for a period of twelve months absent a change in circumstances. Although the court found that father’s lack of cooperation with the co-parenting counselor, which led to his failure to exercise some visitation with the children, constituted a material change in circumstances, the court did not find that this change warranted a child support modification that was retroactive to the date mother filed her motion to amend.
2009---Murphy v. Commonwealth of Virginia, Dep't of Social Srvc's, et al., Va. Ct. of Appeals, Unpublished, No. 1060-09-4
Trial court did not abuse its discretion in refusing to establish as the commencement date for a child support reduction the date on which mother received notice of father's petition to modify support. Although the court may, pursuant to Va. Code §20-108, retroactively award child support or a modification thereof as of the date that notice of a petition has been given to the responding party, whether to do so is entirely within the discretion of the court, and must be based upon the best interests of the child. Here, although father's petition for modification had been pending for approximately three months, father and mother reached an agreement regarding the amount of support just prior to the court's ruling.
2000---Com. Ex. Rel. Graham v. Bazemore, 32 Va. App. 451
Trial court cannot retroactively modify child support obligation.
2000---Asgari v. Asgari, 33 Va. App. 393
Child support shall be awarded retroactively to date of filing, even if custodial parent did not seek hearing on request for pendente lite relief.
1996---Gifford v. Dunkum, Va. Ct. of Appeals, Unpublished, No. 0122-95-2
Trial court abused its discretion in refusing to award child support retroactive to the date of filing, where the trial court’s refusal was based solely on the fact that the mother purposefully identified her current husband as the father on the child’s birth certificate rather than the actual father. The ruling inappropriately penalized the child for the actions of the mother.
1996---Frazer v. Frazer, 23 Va. App. 358
Spousal support should be considered in calculating child support.
2011---Barrett v. Comm. of Va., DSS, DCSE, Va. Ct. of Appeals, Unpublished, No. 1382-10-3
The trial court did not err in refusing to award a credit to the father for support of his stepchildren living in his household. The provisions in Va. Code §20-108.2 that allow for a credit to gross income for other children in a party’s household or custody specifically reference “natural or adopted children,” and thus do not apply to father’s stepchildren.
1999---Sproles v. Lowry, 1999 Va. App. Unpublished, LEXIS 24
Parties agreed upon a credit for other child of Father. Trial court deducted credit from presumptive child support amount. Affirmed.
1993---Summers v. Summers, Va. Ct. of Appeals, Unpublished, No. 2231-92-4
Trial court determined child support guidelines deviation for Father based upon actual support for other child rather than presumptive guidelines amount for other child. Affirmed, deviation is based upon actual support of other children.
1991---Zubricki v. Motter, 12 Va. App. 999
Trial court set Father’s child support without considering support of other children because no support order existed regarding other children. Reversed by Court of Appeals. Court must consider actual monetary support for other children.
2011---West v. West, Va. Ct. of Appeals, No. 0448-11-3
The trial court erred in finding that it had no authority on remand to hear motions to modify child and spousal support filed after the original case was remanded to the trial court. The mandate rule does not apply to a modification of child support and spousal support, when the change of circumstances alleged in the modification petitions did not exist at the time of the order initially appealed, nor was the subject of the order appealed.
2010--- Broadhead v. Broadhead, Va. Ct. of Appeals, Unpublished, No. 0923-09-2
Trial court did not err in finding on remand that father was in arrears for child support unpaid from the time the Court of Appeals reversed and remanded the 2006 child support modification decree until the remand hearing in the trial court. Reversal by the Court of Appeals of the 2006 child support modification decree did not have the effect of vacating the child support provisions of the previous 2001 divorce decree. Once the 2006 modification decree was reversed on appeal, child support was governed by the most recent child support order entered prior to that 2006 decree, which was the 2001 divorce decree.
2007---Nero v. Williams, 2007 Va. App. Unpublished, LEXIS 10
Father who sought review in the circuit court of a juvenile and domestic relations district court order that increased his child support obligation was not required to post an appeal bond, and the circuit court thus erred in dismissing Father’s appeal. An appeal bond is not required where, as here, the appealed order does not establish an arrearage.
1997--- Comm. of Va., DSS, DCSE v. Walker , 253 Va. 319
Circuit court did not have jurisdiction over appeal from a juvenile court order setting child support arrearages where father failed to post an appeal bond, despite the fact that the juvenile court did not set an appeal bond. Va. Code §16.1-296 places the burden on the party applying for the appeal to ask for and to have the district court set the bond and approve the surety. It is fundamental that the appealing party has the burden of perfecting his appeal. The statutory requirements for appeal bonds are mandatory, and failure to comply is a jurisdictional defect that cannot be corrected after the expiration of the time within which an appeal may be taken.
1996--- Avery v. Comm. of Va., DSS, DCSE, 22 Va. App. 698
Trial court erred in dismissing, for failure to post an appeal bond, an incarcerated father’s appeal of a contempt order which found him in arrears and sentenced him to one year in jail for unpaid child support. A finding of contempt is not “an order establishing a support arrearage” pursuant to Va. Code §16.1-296(H). Father clearly sought only to appeal the contempt conviction and the jail sentence, as his counsel conceded the support arrearage judgment. Thus, father was entitled to an appeal to the circuit court without having posted a bond in the amount of the arrearages.
1995--- McCall v. Comm. of Va., DSS, DCSE, 20 Va. App. 248
Trial court did not err in dismissing, for failure to post an appeal bond, father’s appeal of the juvenile court’s civil contempt order setting child support arrearages, where father did not indicate or specify in his notice of appeal that he sought to appeal only the contempt conviction and sentencing rather than the issue of arrearages, and made no effort at trial to inform the circuit court that he intended only to appeal the contempt portion of the order.
2011---Prizzia v. Prizzia, Va. Ct. of Appeals, Rec. No. 1343-10-2 (Apr. 12, 2011)
The trial court did not err in refusing to include wife’s alleged child care expenses in the guideline calculation of child support. Wife’s testimony as to what these expenses were for the child, without any further evidence, was insufficient proof of the appropriate amount of day-care expenses to be added to the basic guideline calculation. Wife had the burden of proving the appropriate amount of those expenses. She failed to produce evidence as to (i) whether what she paid was reasonable in light of alternative day-care centers, and (ii) whether the child was in public school, which provided a free day- care option. Moreover, wife testified that she was paying a nanny a higher hourly rate than wife herself was earning. Given that evidence, the trial court was free to conclude that wife had not carried her burden to demonstrate the appropriate amount of day-care expenses that should have been added to the basic support obligation.
2010---Leake v. Taylor, Va. Ct. of Appeals, Unpublished, No. 0737-09-4
Trial court did not err in awarding husband $2,000 per month in spousal support for twenty months only, where husband failed to produce credible evidence of further need, the marriage lasted for less than two years, husband had purposely foregone employment since the separation in order to increase his apparent need for support, wife had made the vast majority of monetary and nonmonetary contributions to the marriage, and both parties shared responsibility for the breakdown of the marriage.
2004---Hoebelheinrich v. Hoebelheinrich, 43 Va. App. 543
Trial court did not err in failing to consider the tax consequences of payments that husband made pursuant to a settlement agreement between the parties when determining the spousal support award. Although Va. Code §20-107.1(E) provides that a trial court “shall consider...(13) such other factors, including the tax consequences to each party, as are necessary to consider the equity of the parties,” when determining the amount and duration of a spousal support award, nothing in the statute requires the court to consider the tax consequences of past, contractual obligations when determining future spousal support.
1996---Mann v. Mann, 1996 Va. App. Unpublished, LEXIS 369
Wife, who was totally responsible for dissolution of marriage, received $1,600.00 per month in spousal support. Trial court’s refusal to reconsider spousal support when it transferred responsibility for mortgage from Husband to Wife constituted error.