Support - Child and Spousal - § 4-1 (E) - § 4-2 (C)

  (E)  Survival

  (F)  Arrears & Interest

2011--- Barrett v. Comm. of Va., DSS, DCSE, Va. Ct. of Appeals, Unpublished, No. 1381-10-3
Va. Code §20-78.2 mandates interest on support arrears at the judgment interest rate, unless the obligee, in a writing submitted to the court, waives the collection of interest. However, failing to introduce evidence with regard to the interest owed, or failing to specifically request interest, is not tantamount to waiving the collection thereof.

  (G)  Conditions of Support Orders

1994---Sanford v. Sanford, 19 Va. App. 241
The trial court erred in requiring the parties, for informational purposes only, to exchange their tax returns on an annual basis. Where no petition was pending to determine support or modify a support award, no basis existed to justify the court to order said exchange. Notwithstanding the fact that the exchange of such information in the future might enable a former spouse to monitor when material changes in circumstance as to income have occurred, the information was not presently relevant to any issue being litigated.

    § 4-2.   Child Support

    (A)  Duty of Support

2014--- Mayer v. Corso-Mayer, Va. Ct. of Appeals, Record No. 0724-13-1.
The trial court did not err in ordering continuing child support for a child who could not live on her own or support herself due to physical and psychiatric disorders including fibromyalgia, Tourette’s disorder, obsessive compulsive disorder, mood disorder, and attention deficit hyperactivity disorder. The Court determined that the trial court’s finding that the child is severely disabled was supported by credible evidence. While the first prong of Code of Virginia 20-124.2(C) requires permanent disability, the statute does not require that the child be permanently unable to live independently and support herself.

2002--- Commonwealth of Virginia v. Fletcher, 38 Va. App. 107
The termination of parental rights terminates all parental rights and responsibilities, including the duty of child support.

2001--- Russell v. Russell, 35 Va. App. 360
A non-parent with legal custody must provide necessities while child lives with him, but has no duty of support when child does not reside with him, in case in which parents retained residual parental rights.

2000--- Com. Ex. Rel. Breakiron v. Farmer, 32 Va. App. 430
Child support order entered against man who was not the actual father.  A judgment obtained by fraud is voidable and can be challenged by direct appeal or by attack in an independent proceeding.

2000--- Germek v. Germek, 34 Va. App. 596
A parent seeking continuation of support for an adult child bears the burden of proving entitlement to a continuation.

1989---NPA v. WPA, 8 Va. App. 246
The general rule in Virginia is that a parent owes a duty of support only to his or her natural or legally adopted child. In the absence of consanguinity, legal adoption, or a knowing and voluntary assumption of the obligation to provide support, the law will not compel one who has stood in the place of a parent ( in loco parentis) to support the child after the relationship has ceased. Essential to the status of in loco parentis is an intent to assume and continue a parental relationship. Husband was under the erroneous assumption that he was the child’s natural father, and thus did not knowingly and voluntarily accept another man’s child into his care. Therefore, the trial court did not err in finding that husband had no support obligation for wife’s illegitimate child, despite the fact he raised the child as his own for five years.

To enforce a duty of support on husband based upon a theory of express or implied oral contract, husband must have knowingly and intentionally entered into an agreement with wife to support her illegitimate child. The trial court did not err in finding no implied contract based on husband’s silence or inaction, where husband accepted wife’s son into his home on the mistaken assumption that the child was his own.

Virginia courts have never applied a doctrine of equitable estoppel in the context of child support cases. The elements necessary to establish equitable estoppel, absent a showing of fraud and deception, are a representation, reliance, a change of position, and detriment. The party who relies upon equitable estoppel must prove each element by clear, precise, and unequivocal evidence. Assuming without deciding that equitable estoppel exists as a basis to enforce a child support obligation, the trial court did not err in refusing to hold husband to a support obligation because he did not knowingly misrepresent to the child that he was his natural father and the child suffered no detriment.

1976--- T. v. T, 216 Va. 867
Generally, a husband is not liable, merely because of his status as husband, for the support of his wife’s illegitimate child born before or after marriage. However, the trial court erred in relieving husband from child support for a wife’s child from another man, where husband promised to wife that if she married him, he would care for the child “as if it were his own,” and actually did so for four years after the child was born. The Supreme Court of Virginia reversed and held that husband had entered into a binding oral contract for which he was estopped from pleading the statute of frauds.

    (B)  Deviation

2015 – Jones v. Jones, Va. Ct. of Appeals, Unpublished, No. 0708-15-3
The trial court did not err in deviating from the child support guidelines to award Father $0 in child support where Father had failed to make any payments to Mother for the equitable distribution award ordered over two years prior in the final decree of divorce.

2014--- Plaisted v. Plaisted, Va. Ct. of Appeals, 0051-14-2
The trial court did not err in ordering Father to pay child support in an amount that was 100 percent greater than the amount provided by the child support guidelines. When deviating from the statutory guidelines, Code of Virginia 20-108.1(B) requires a trial court to consider evidence pertaining to, among other factors, any special needs of the child, the standard of living for the child established during the marriage, and the equitable distribution of marital property that earns income or has income earning potential. A trial court may order support that requires the payor spouse to draw from sources other than his or her salary. Here, the evidence showed that the parties maintained a high standard of living during the marriage, and that the child had special medical and mental healthcare needs. Additionally, Husband received numerous financial resources as a result to the trial court’s equitable distribution award.

2013--- Bokassa v. Bokassa, Va. Ct. of Appeals, Unpublished, No. 0152-13-4
The trial court did not abuse its discretion in deviating from the shared custody support guidelines based on the “poverty level” of the mother. The parties never married; they shared custody of two children; father paid health insurance premiums for the children; and mother was earning no more than $1,500 per month.

2013--- Milam v. Milam, Va. Ct. of Appeals, Unpublished, No. 0837-12-4
Code of Virginia §20-108.2 requires that the trial court calculate the presumptive amount of child support prior to establishing a party’s support obligation. The trial court erred in determining child support based on the needs of the Wife, even though the court lacked the information necessary to determine the presumptive amount of child support based on Husband’s refusal to provide income-related information during discovery.

2013-- Saxon v. LeSueur, Va. Ct. of Appeals, Unpublished, No. 0516-13-2
The trial court did not err in deviating from the child support guidelines based on unique expenses associated with the child’s activities in his last year of high school. The child support guidelines in Virginia are not adjusted for age, and the increased expenses associated with older children may be taken into account when departing from the child support guidelines.

2011--- Prizzia v. Prizzia, 58 Va. App.137
The trial court erred in granting husband “credit” for payments towards educational expenses that husband made prior to the existence of a child support order. Although the trial court refused to award husband a deviation from the guideline amount, it effectively granted such a deviation by allowing husband a “credit” for these pre-order expenses, because the credit altered the guideline amount. Because the court did not make specific findings that a deviation was appropriate, awarding husband a credit that essentially operated as a deviation was error.

Though the trial court is required to make a specific finding that the application of the child support guidelines would be unjust or inappropriate when it decides to deviate from those guidelines, the court is not required to make such a specific finding when it decides to follow the guidelines rather than deviate therefrom.

2010--- Bennett v. Va. DSS, DCSE, Va. Ct. of Appeals, Unpublished, No. 0588-10-4
The trial court did not err in deviating upward from the presumptive child support guideline amount, despite finding a material change in circumstances, where the court found that father had not adequately explained income from his ownership interest in a business, had not reported income earned from side jobs on his income and expense sheet, and had not reported loans from his family as income. The court's recitation of those findings in the final order was sufficient explanation of the deviation.

2010--- Broadhead v. Broadhead, Va. Ct. of Appeals, Unpublished, No. 0923-09-2
If a court deviates from the presumptive guideline support award, Va. Code §20-108.1(B) requires the court to make “written findings” that the application of the guidelines would be “unjust or inappropriate.” The trial court’s findings must be in “enough detail and exactness to allow for effective appellate review of the findings.” Princiotto v. Gorrell, 42 Va. App. 253 (2004). However, the trial court is not required to state the exact mathematical impact of factors justifying a deviation, or to make a “secondary calculation” which assigns an exact mathematical impact to those factors. A trial court need not assign a dollar value to deviation factors in order to fairly consider them for purposes of establishing a child support award.

Here, the trial court’s statement that it deviated from the guidelines “primarily because of father’s travel costs and mother’s underemployment” was sufficient detail to allow appellate review over the decision to deviate from the guidelines.

2007--- A.O.V. v. J.R.V., Va. Ct. of Appeals, Unpublished, No. 0219-06-4
Trial judge did not abuse his discretion for deviating from the guidelines by requiring Father to pay an amount disproportional to the parties’ incomes for the oldest daughter’s education expenses where the trial judge found it was in the daughter’s best interests to attend private school.

2007--- A.O.V. v. J.R.V., Va. Ct. of Appeals, Unpublished, No. 0219-06-4
Trial judge did not abuse discretion in deviating from guidelines by requiring Father to pay 60% of airline travel for the children for short visits and all of the airfare for extended visits.

2007--- Lesesne v. Zablocki, Va. Ct. of Appeals, Unpublished, No. 0334-06-4
Trial court considered the relevant factors in making its child support award and did not abuse its discretion in refusing to deviate from the child support guidelines to include the cost of private education where Wife did not demonstrate a need – educational, emotional, or developmental – for the children to attend private school.

2007--- Duda v. Hunt, Va. Ct. of Appeals, Unpublished, No. 0511-06-4
Trial court did not err in allowing a downward deviation in child support of $248 per month.  The deviation was based on 80% of Father’s monthly health insurance costs and was allowed as a matter of equity because Mother’s employer subsidized 80% of her monthly insurance costs.

2004--- Princiotto v. Gorrell, 42 Va. App. 253
Trial court did not err in deviating from the presumptive guideline amount of child support, based on findings that (i) direct payments to the mother were not in the children’s best interests due to mother’s history of financial irresponsibility, and (ii) that the parties’ settlement agreement, incorporated by the court, obligated father to directly pay the majority of the expenses incurred by or on behalf of the children.

To rebut the child support guidelines’ presumption of correctness, a trial court must make written findings of enough detail and exactness to allow for effective appellate review of the findings. Specifically, the findings must identify the factors that justified deviation, and explain why and to what extent the factors justified adjustment. The incorporation into the court order of the parties’ settlement agreement, which obligated father to continue paying directly the expenses of the children, combined with a statement in the court order that “mother’s demonstrated financial irresponsibility” is such that “direct payments of child support to her would not benefit or be in the best interests of the children,” was sufficient to comply with the statutory mandate to provide written findings justifying a deviation.

2000--- Looney v. Looney, 32 Va. App. 135
Mother agreed to reduced child support in agreement then asked for full guidelines support.  Court of Appeals affirmed trial court’s downward deviation in accordance with agreement.

(Return to top of page)

1999--- Ragsdale v. Ragsdale, 30 Va. App. 283
Trial court’s deviation from child support guidelines in requiring Husband to pay for private school for children was warranted, in light of evidence.

1999--- Howe v. Howe, 30 Va. App. 207
Cash gift to Father was gross income for child support calculations.  Cash value proceeds from life insurance policy were not gross income where evidence did not distinguish income from return of capital.

1996--- Solomond v. Ball, 22 Va. App. 385
In determining whether a noncustodial parent should be required to pay support to provide for a child’s private education expenses, a demonstrated need of the child and the parent’s ability to pay must both be shown. The availability of satisfactory public schools, the child’s attendance at private school prior to the separation or divorce, the child’s special emotional or physical needs, religious training, and family tradition are factors relevant not only for determining whether a demonstrated need has been shown for the child to attend private rather than public school, but also for determining whether there is justification for requiring a parent to pay for a child to transfer to a more expensive private school.

Here, the trial court erred in increasing father’s child support obligation to pay for the children to attend a more expensive private school than the school they were currently attending. The trial court made no written findings of fact that justified further deviation from the child support guidelines other than a statement that “it would be in the children’s best interest to be able to take advantage of this educational opportunity.”

The trial court erred in ordering husband to pay, in addition to the presumptive amount provided by the guidelines, 70% of the first $8,000 of the children’s educational expenses and 50% of any expenses exceeding $8,000. By setting the support obligation as a percentage of the educational expenses rather than a specific monetary amount, husband’s obligation would automatically increase or decrease depending on changes in the children’s actual expenses. A trial court may not abrogate its responsibility to determine that a material change in circumstance justifies a modification of child support by entering an order that results in an automatic increase based upon the occurrence of future events.

1994--- Brooks v. Rogers, 18 Va. App. 585
As imputation of income is a deviation from the guidelines, the factors justifying the deviation must be identified and discussed in detail to withstand scrutiny on review.  Before imputing income, trial court must find that party was voluntarily unemployed or underemployed.  Trial court's imputation of income to Father reversed because of insufficient evidence to support deviation.

1993--- Crabtree v. Crabtree, 17 Va. App. 81
On a motion to modify child support, when the moving party fails to prove a material change in circumstance, the trial court is not required to calculate the presumptive amount of child support per the guidelines, nor justify by written findings of fact as to why the previous child support award should continue to deviate from the presumptive amount.

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--- Alexander v. Alexander, 12 Va. App. 691
If the amount of child support is in dispute, in spite of a prior agreement, the trial court must determine the presumptive amount of child support in accordance with the child support guidelines contained in Va. Code §20-108.2. Once the presumptive amount is determined, the trial court may then deviate from the presumptive amount if such deviation is justified by the factors of Va. Code §§ 20-108.1 and 20-107.2. These factors may be reflected in provisions in the separation agreement which may, therefore, be the basis for deviating from the guidelines.

  (C)  Education Expenses

2014--- Plaisted v. Plaisted, Va. Ct. of Appeals, 0051-14-2
The trial court did not err in ordering Father to pay the child’s private school tuition in an amount that exceeded the statutory child support guidelines when the evidence established that the child was a gifted, but high needs child with several mental health disorders that could not be adequately accommodated in the public schools.

2014--- Oley v. Branch, 63 Va. App. 681
The trial court did not err in refusing to include the children’s private school tuition as part of Mother’s child support obligation. A trial court may order a parent to pay private educational expenses, even if such expenses exceed child support guidelines, when there is a demonstrated need for the child to attend private school and the parent has the ability to pay. Here, Father failed to provide any evidence demonstrating a physical, emotional, or religious need that could only be met by the children’s attendance at a private school. Further, the evidence established that Mother did not have the ability to pay for private school tuition.

2012--- Bousman v. Lhommedieu, Va. Ct. of Appeals, Unpublished, No. 0932-11-4
The trial court did not err in construing the parties’ settlement agreement to require husband to pay one-half of child’s college education.  The agreement contained two paragraphs, one dealing with the child’s high school education, and the other dealing with college expenses. The paragraph dealing with high-school education required the parties to each pay one-half of the child’s high school education, except that, in the event that husband disagreed with wife’s choice about where the child would attend school, husband would not be required to pay.  The following paragraph, which set forth each party’s obligation to pay one-half of college expenses, did not contain a similar provision allowing husband to refuse payment if he disagreed with where the child attended college.

2011--- Lewis v. Bailey, Va. Ct. of Appeals, Unpublished, No. 2596-10-1
Trial court did not err in denying mother’s request that father be required to pay tuition for private schools for the children. Under the parties’ initial settlement agreement, incorporated into a court order, the parties noted that the children would attend a particular Montessori School, and that the costs of said school had been factored into the child support guidelines. There was no language regarding different schools. In a subsequent agreement reached in mediation and incorporated into a court order, the father’s child support obligation increased, based on increased tuition at the Montessori School. Again, no language in that agreement addressed other schools. Thus, when mother moved the children to different private schools subsequent to the agreements of the parties, she could not rely on the agreements to establish that the father had agreed to pay for tuition at those schools.

2011--- Prizzia v. Prizzia, 58 Va. App.137
The trial court erred in granting husband “credit” for payments towards educational expenses that husband made prior to the existence of a child support order. Although the trial court refused to award husband a deviation from the guideline amount, it effectively granted such a deviation by allowing husband a “credit” for these pre-order expenses, because the credit altered the guideline amount. Because the court did not make specific findings that a deviation was appropriate, awarding husband a credit that essentially operated as a deviation was error.

2007--- A.O.V. v. J.R.V., Va. Ct. of Appeals, Unpublished, No. 0219-06-4
Trial judge did not abuse his discretion for deviating from the guidelines by requiring Father to pay an amount disproportional to the parties’ incomes for the oldest daughter’s education expenses where the trial judge found it was in the daughter’s best interests to attend private school.

2007--- Lesesne v. Zablocki, Va. Ct. of Appeals, Unpublished, No. 0334-06-4
Trial court considered the relevant factors in making its child support award and did not abuse its discretion in refusing to deviate from the child support guidelines to include the cost of private education where Wife did not demonstrate a need – educational, emotional, or developmental – for the children to attend private school.

2001--- Joynes v. Payne, 36 Va. App. 401
A parent may be required to pay for private educational expenses, even though such expenses exceed the guidelines, when there is a demonstrated need for the child to attend private school and the parent has the ability to pay.

1999--- Ragsdale v. Ragsdale, 30 Va. App. 283
Trial court’s deviation from child support guidelines in requiring Husband to pay for private school for children was warranted, in light of evidence.

1996--- Solomond v. Ball, 22 Va. App. 385
In determining whether a noncustodial parent should be required to pay support to provide for a child’s private education expenses, a demonstrated need of the child and the parent’s ability to pay must both be shown. The availability of satisfactory public schools, the child’s attendance at private school prior to the separation or divorce, the child’s special emotional or physical needs, religious training, and family tradition are factors relevant not only for determining whether a demonstrated need has been shown for the child to attend private rather than public school, but also for determining whether there is justification for requiring a parent to pay for a child to transfer to a more expensive private school.

Here, the trial court erred in increasing father’s child support obligation to pay for the children to attend a more expensive private school than the school they were currently attending. The trial court made no written findings of fact that justified further deviation from the child support guidelines other than a statement that “it would be in the children’s best interest to be able to take advantage of this educational opportunity.”

The trial court erred in ordering husband to pay, in addition to the presumptive amount provided by the guidelines, 70% of the first $8,000 of the children’s educational expenses and 50% of any expenses exceeding $8,000. By setting the support obligation as a percentage of the educational expenses rather than a specific monetary amount, husband’s obligation would automatically increase or decrease depending on changes in the children’s actual expenses. A trial court may not abrogate its responsibility to determine that a material change in circumstance justifies a modification of child support by entering an order that results in an automatic increase based upon the occurrence of future events.

1985- --Tiffany v. Tiffany, 1 Va. App. 11
Agreement did not give Husband veto power over son’s choice of college; Husband still has to pay despite disagreement with son’s college choice.

(Return to top of page)

Previous Page | Next Page