Support - Child and Spousal - § 4-2 (D) - § 4-2 (G)

(D) Duration of Support

2013—Kolmetz v. Hitchcock, Va. Ct. of Appeals, Unpublished, No. 1464-12-2
The jurisdiction of a divorce court to provide for a child’s support and maintenance terminates upon majority unless otherwise provided by an agreement incorporated into the decree of divorce. (Citing Cutshaw v. Cutshaw, 220 Va. 638, 641 (1979)). Virginia law recognizes and enforces agreements to provide support for children beyond the age of majority.

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.

2000—Rinaldi v. Dumsick, 32 Va. App. 330
Child support to continue for adult child with cerebral palsy.

1990—Brown v. Brown, 240 Va. 376
Termination of child support liability when child turns eighteen is not automatic.

1979—Cutshaw v. Cutshaw, 220 Va. 638
The court held that where a contract to support the children after their minority was incorporated into a support decree by a divorce court, the court has authority to enforce, but not modify, the parties’ agreement.

(E) Jurisdiction

(1) Personal

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)

(2) Subject Matter

2012—Williams v. Williams, 61 Va. App. 170
Va. Code §20-108 confers continuing and exclusive subject matter jurisdiction to revise and alter a decree concerning the care, custody, and maintenance of children on the particular circuit court that entered the original decree.

2011— Prizzia v. Prizzia, 58 Va. App. 137
The trial court did not err in entering a child support award despite having declined to exercise jurisdiction over the divorce proceeding and the child custody issue therein. Where a case is originally filed as a divorce proceeding and includes child custody and child support issues, and where the trial court has jurisdiction to decide child custody – even though it does not end up exercising jurisdiction over the divorce itself – the trial court also retains jurisdiction to award child support as an equitable concomitant to its jurisdiction over child custody.

2010—Deline v. Deline, Va. Ct. of Appeals, Unpublished, No. 2801-09-1
Where wife did not request in her complaint for divorce that the circuit court deal with the issue of child support, the portions of the divorce decree “reserving” child support, ordering the maintenance of health insurance, and setting father’s child support arrearages were void for lack of jurisdiction. That wife endorsed the divorce decree containing those provisions without objection was not sufficient to confer jurisdiction on the court, as the endorsement of an order is not a prayer for relief in a pleading. Thus, the juvenile court had jurisdiction to enter contempt orders against husband for child support arrearages after the divorce decree was entered.

2007—Nordstrom v. Nordstrom, 50 Va. App. 257
Va. Code §20-88.39 provides that when a court loses exclusive jurisdiction over its prior child support order, it has no subject matter jurisdiction to modify that order.

Continuing jurisdiction to enforce prior order need not be exclusive jurisdiction.

2001—Robdau v. Commonwealth, 35 Va. App. 128
Under Uniform Interstate Family Support Act (UIFSA), Virginia court had subject matter jurisdiction to enforce New York order for child support payments beyond time when Father’s child support obligation would have ended under Virginia law.

1998—Franklin v. Com., Dept. of Social Serv., 27 Va. App. 136
Virginia court had jurisdiction over Father in Africa based upon his eviction of Wife and children from their home.

1996—Carmon v. DSS, Div. Child Support Enforcement, 21 Va. App. 749
The Division of Child Support Enforcement could, within its discretion, afford a mother against whom it entered an Administrative Support Order an administrative hearing to contest that order despite the mother’s failure to request such a hearing within ten days, pursuant to statute. Once DCSE grants the hearing, the trial court can assert jurisdiction over an appeal from that hearing if properly and timely filed.

(3) Transfer

2012—Williams v. Williams, 61 Va. App. 170
Va. Code §20-79(c) authorizes a circuit court to transfer to an appropriate juvenile court jurisdiction pertaining to maintenance of a spouse, support, care, and custody of children after the entry of a divorce decree. However, the statute does not authorize such a transfer from one circuit court to another. Though a transfer may be appropriate in cases where venue is improper, when a court lacks subject matter jurisdiction, the case must be dismissed.

(4) Uniform Interstate Family Support Act (UIFSA)

(a) Registration of Foreign Order (UIFSA)

2012—Moncrief v. DCSE, 60 Va. App. 721
The trial court did not err in registering a North Carolina child support order for purposes of enforcement. Although New York had previously entered a support order, it lost continuing exclusive jurisdiction when the mother and child relocated to North Carolina, the father to Virginia, and the parties agreed to the entry of an order modifying support by the North Carolina court. North Carolina retained continuing, exclusive jurisdiction because its order had not been modified by a tribunal of another state. Thus, the North Carolina order was the “controlling order” for purposes of registration.

(b) Duration of Support (UIFSA)

2012—Moncrief v. DCSE, 60 Va. App. 721
Although an order modifying support entered by a North Carolina court was the “controlling order” for purposes of registration in Virginia, the duration of appellant’s child support obligation continued to be controlled by the prior, initial order entered in New York. The North Carolina order modified the support amount, but was silent as to duration of child support, and stated “all provisions of previous orders not modified herein shall remain in full force and effect.” Accordingly, the trial court did not err in finding that the provisions of the initial New York order continued to govern with regard to the duration of the appellant’s child support obligation.

(F) Medical Expenses

2010—Barrett v. Kantz, Va. Ct. of Appeals, Unpublished, No. 2506-09-1
Trial court did not err in ordering father to pay a percentage of one child’s orthodontic expenses rather than the orthodontic expenses of both children. In reliance on testimony by the children’s orthodontist that treatment for the older child was “more urgent” and “should begin soon,” but that treatment for the younger child was merely “recommended,” the trial court held that treatment for the younger child was not “urgently needed or compelling at this time.”

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.

2007—Tesfay v. Tesfay, Va. Ct. of Appeals, Unpublished, No. 1260-06-4
The trial court did not err in not ordering reimbursement for the children’s medical expenses when the evidence showed neither parent had any gross income.

2002—Albert v. Albert, 38 Va. App. 284
Father must still reimburse Mother for medical bills even when he had not received notification. Notification is not a condition precedent for obligation for reimbursement.

1996—Frazer v. Frazer, 23 Va. App. 358
Extraordinary medical expenses should be divided as part of the basic child support obligation.

1995—Carter v. Carter-Thornhill, 19 Va. App. 501
Trial court did not err in ordering father to pay a lump-sum amount to mother constituting forty-five percent of the medical expenses incurred and paid by mother as a result of daughter’s car accident. Despite the fact that the petition to modify child support came after a significant portion of the expenses had been incurred and paid by mother, the trial court’s award did not constitute a “retroactive” modification of support, as it did not alter the monthly amount of support payments for the period of time between the accident and the filing of the petition, but merely dealt with the payment of medical expenses. The trial court chose to deviate from the presumptive monthly guidelines by requiring the lump sum payment rather than averaging the total expenses over a twelve month period, due to the fact that mother had already paid a significant portion of the expenses. Va. Code §20-108.1(B)(8) lists “extraordinary medical expenses” as one factor justifying deviation. In order for this provision to have any significant meaning, it must contemplate payment for past expenses as well as continuing expenses; otherwise a parent would be limited to recovering expenses only where the parent knew the expenses would occur in the future. Furthermore, the trial court did not err in requiring father to pay forty-five percent of the ongoing medical expenses incurred by mother on behalf of the daughter during the pendency of the suit.

(G) Modification

2015—Milam v. Milam, 65 Va. App. 439
The trial court was not barred from increasing, instead of reducing, Father’s child support obligation, even though the only motion before the court was Father’s motion to reduce support. Once a material change in circumstances was established, the court was required to determine the presumptive support amount by following the statutory guidelines, which resulted in a higher presumptive amount due to Father’s increase in income

2015—Lowe v. DCSE, Va. Ct. of Appeals, Unpublished, No. 0834-14-2
The trial court did not err in dismissing Father’s motion to amend his child support obligation because Father admitted that he was incarcerated for felony convictions and, as a result, had no income. The party seeking to modify his support obligation must show that his lack of ability to pay is not due to his own voluntary act or neglect. A parent’s incarceration may be found to constitute voluntary underemployment, and, consequently, may preclude a support obligation reduction based on a loss of income resulting the incarceration.

2012—Burns v. Burns, Va. Ct. of Appeals, Unpublished, No. 0359-12-4
The trial court erred in denying Father’s motion to modify child support on grounds that he failed to show a material change in circumstances since the entry of an order modifying custody and visitation, which was entered subsequent to the initial child support order. Though the parties entered into a consent order addressing school placement for a child of the parties and guardian ad litem fees associated with that action, neither the pleadings associated with that action nor the consent order itself addressed child support. While the consent order did contain language stating that “all other provisions of the [prior divorce order] and the parties’ settlement agreement not inconsistent with [the consent order] remain in full force and effect,” the trial court incorrectly construed that language as a reaffirmation by the father of the correctness of the child support amount set forth in the divorce order and settlement agreement.

2011—Barrett v. Comm. of Va., DSS, DCSE, Va. Ct. of Appeals, Unpublished, No. 1382-10-3
In a support modification proceeding, the trial court is not bound by an imputation of income determination made when support was originally set.

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.

2009—Kappeler v. Kappeler, Va. Ct. of Appeals, Unpublished, No. 0292-09-4
Trial court did not err in concluding that mother had proven a material change in circumstances since the divorce decree, based on mother's evidence that father's conduct during exchanges of the children made it appropriate for her to seek third-party after-school care for the children, despite father's willingness and ability to provide the care. Although Va. Code §20-108.2(F) provides that "where appropriate, the court shall consider the willingness and availability of the non-custodial parent to provide child care personally in determining whether child care costs are necessary," the statute subjects the necessity of child care costs in the face of the non-custodial parent's willingness to provide care to the discretion of the trial court. Here, the trial court did not abuse its discretion in determining that father's hostile, volatile, invading and controlling behavior during visitation exchanges since the divorce decree was sufficient evidence of a material change in circumstances, and that mother was therefore entitled to an increase in child support for purposes of paying for third-party care.

2008— Broadhead v. Broadhead , 51 Va. App. 170
In support modification cases in which a party is alleged to be voluntarily under or unemployed, that party has the burden of proving that he or she is not.

2007—Mooney v. Mooney, Va. Ct. of Appeals, Unpublished, No. 1961-06-4
Trial court did not err in refusing to modify Husband’s spousal and child
support obligations to the extent he sought. The trial court was not persuaded by husband’s evidence regarding his reduced income and provided a reasoned explanation for its ruling.

2007—Waller v. Commonwealth of Virginia, Division of Social Services, Division of Child Support Enforcement, Va. Ct. of Appeals, Unpublished, No. 0263-07-3
Trial court did not err in refusing to decrease Father’s child support obligation due to his incarceration, finding he failed to prove a material change in circumstances since the last support order was entered. “That part must establish an inability to pay that is not due to voluntary action or neglect.” Antonelli v. Antonelli, 242 Va. 152 (1991).

2006Stiles v. Stiles, 48 Va. App. 449
Neither laches nor res judicata barred a September 30, 2005 child support order modifying Father’s child support obligation retroactive to January 1, 2002, and finding him in arrears of $42,282 plus interest.

2005—Barrs v. Barrs, 45 Va. App. 500
Substantial passive earnings on Wife’s equitable distribution award do not constitute a material change in circumstances as trial court knew of passive earnings at time of original ruling.

2002—Riggins v. O’Brien, 263 Va. 444
A 1991 decree providing for child support and stating that the amount payable for child support shall be renegotiated or submitted to a court for adjudication on the first event of emancipation, as to each child, was valid and, because the parties did not obtain court approval of their renegotiations, Father was obligated to pay the arrearages and interest as determined by the trial court.

2001—Shoup v. Shoup, 37 Va. App. 240
Parties cannot modify child support by agreement without prior court approval. Cases involving Va. Code §20-109.1 place only three limitations upon parties’ rights to contract regarding child support. First, the court must review the provisions of the agreement for their consistency with the best interests of the child or children whose welfare the agreement addresses. Second, the parties may not, by agreement, prevent the court from exercising its power to change, modify, or enforce its decree concerning the custody and maintenance of minor children. Third, the parties cannot terminate by agreement a parent’s duty to support a child.

An agreement between the parties, incorporated into a court order, that allowed father to reduce his child support obligation each time a child emancipated and allowed the parties to adjust the amount of support each year based on child care expenses incurred, did not circumvent the court’s jurisdiction to enforce, modify, or intervene in matters of child support upon the petition of either party. Either party was free at any time to invoke the court’s jurisdiction to determine child support beyond the agreement. A rule requiring parents to return to court for approval of a renegotiated amount of child support, as provided in an agreement that has been affirmed, ratified, and incorporated into an earlier decree, would undermine the Commonwealth’s policy in favor of prompt resolution of disputes concerning child support.

2000—Com. Ex. Rel. Graham v. Bazemore, 32 Va. App. 451
Trial court cannot retroactively modify child support obligation.

2000—Riggins v. O’Brien, 34 Va. App. 82
Parties cannot modify court ordered child support by agreement.

1997—Brooks v. Division of Child Support Enforcement, Va. Ct. of Appeals, Unpublished, No. 1928-96-2
Reduction of child support by trial court reversed. Father in prison for attempted capital murder. Trial court erred in using incarceration as a ground for reducing child support obligation. Edwards cited.

1997—Layman v. Layman, 25 Va. App. 365
Father’s request for a reduction in child support was properly denied where his reduction in income was due to his incarceration.

1997—Street v. Street, 24 Va. App. 2
Husband/Father closed his business and accepted job with considerably less income due to the deterioration of his mental health. Husband did not prove a change in circumstances that warranted modification of his support obligation.

1996—Cooke v. Cooke, 23 Va. App. 60
Trial court erred in refusing to apply the child support guidelines, as amended during the pendency of the proceeding, to determine child support at the time of the court’s ruling. The statutory scheme established by Va. Code §§20-107.2, 20-108, 20-108.1 and 20-108.2 manifests a clear legislative intent that the courts of the Commonwealth determine the issue of child support with contemporaneity, in consideration of prevailing circumstances and consistent with existing guidelines.

1993—Crabtree v. Crabtree, 17 Va. App. 81
A significant variation between the presumptive guideline amount and the actual support initially ordered is not alone sufficient to justify a review of the initial award – the moving party must prove a material change in the parties’ ability to provide support or in the children’s needs.
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.

1991—Watkinson v. Henley, 13 Va. App. 151
When a child support award is based on the agreement of the parents, a trial court ruling on a motion to modify said child support award must consider the provisions of the agreement that relate to the factors in Code of Virginia §20-107.2 and §20-108.1, in deciding whether the guideline amount of child support would be unjust or inappropriate in the particular case. In doing so, the trial court must consider whether the agreed provisions would better serve the interest or “equities” for the parents and children. While a particular amount may appear on its face to be “just and appropriate,” the presumptive amount may be unjust or inappropriate when considered in comparison to what the parties agreed upon or in relation to other extraneous circumstances.

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.

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