PRESENT: Lacy, Hassell, Keenan, Koontz, Kinser, and Lemons, JJ.,
and Stephenson, S.J.
ROBERT JOHN RIGGINS
OPINION BY
v. Record No. 010501 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
March 1, 2002
MARY LOU O'BRIEN
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we determine whether a provision in a
divorce decree relating to child support is valid and, if so,
its meaning and effect.
I
On October 27, 1998, Mary Lou O'Brien, formerly Mary Louise
Riggins, caused a rule to issue requiring Robert John Riggins to
show cause why he should not be held in contempt of court for
failing to pay child support according to a June 12, 1991 decree
of the Circuit Court of Fairfax County (the 1991 Decree). On
September 15, 1999, the trial court entered a decree finding
Riggins in contempt of court and awarding judgment against him
for child support arrearages.
Riggins appealed the decision, and, on December 12, 2000,
the Court of Appeals affirmed the trial court's judgment.
Riggins v. O'Brien, 34 Va. App. 82, 538 S.E.2d 320 (2000). We
awarded Riggins this appeal, concluding that the case involves a
matter of significant precedential value. See Code § 17.1-
410(B).
II
The parties, before entry of the 1991 Decree granting them
a divorce, negotiated an agreement respecting support of their
four minor children. The agreement was submitted to the trial
court for its consideration, and the court approved it and set
forth its terms in the 1991 Decree as follows:
ADJUDGED, ORDERED AND DECREED, by agreement of
the parties, that the Cross-Plaintiff, ROBERT JOHN
RIGGINS, as and for the support and maintenance of the
parties' minor children, shall pay unto the Plaintiff,
MARY LOUISE RIGGINS, the sum of Three Thousand Two
Hundred Fifty Dollars ($3,250.00) per month on the
first day of each month hereafter, commencing on July
1, 1991, and continuing thereafter until said children
shall attain the age of eighteen (18) years, marry,
become self-supporting, become otherwise emancipated,
or die, whichever should first occur . . . ; provided,
however, that the amount payable hereunder shall be
renegotiated or submitted to a court for adjudication
on the first event of emancipation, as set forth
above, as to each child . . . .
Riggins made the child support payments as decreed until
August 1992, when the parties' eldest child reached the age of
eighteen. At that time, Riggins reduced the amount of child
support by one-quarter. In 1996, the parties' second oldest
child, who was just nine months from her eighteenth birthday,
dropped out of high school, left home, and moved into a
condominium. Riggins determined that this child was
emancipated, and he reduced the amount of child support by
2
another one-quarter. 1 The parties did not obtain court approval
for these reductions.
The trial court determined that the provision in the 1991
Decree respecting renegotiations of child support was void ab
initio. The court further held that Riggins was in contempt of
court and that he was liable for child support arrearages in the
amount of $85,332.94, plus pre-judgment interest in the amount
of $20,805.05.
III
We must determine the validity, meaning, and effect of the
provision in the 1991 Decree which states that the amount
payable for child support "shall be renegotiated or submitted to
a court for adjudication on the first event of emancipation, as
set forth above, as to each child." Riggins contends that, even
if the divorce court erred in permitting the parties to
renegotiate child support, the provision is not void, but merely
voidable. Therefore, he asserts, pursuant to Rule 1:1, the
decree became final and unassailable after the expiration of 21
days from the date of entry. O'Brien, on the other hand,
contends that the provision is void ab initio and, therefore, is
subject to collateral attack at any time. As previously noted,
1
Although O'Brien contends that she did not participate in
any negotiations respecting these reductions, the record is
clear that she made no objections thereto and continued to
receive the reduced payments for over six years.
3
the Court of Appeals affirmed the trial court's decision,
concluding that the provision is "void and ineffective" because
it permitted the parties to modify the child support amount
without court scrutiny and approval. Riggins, 34 Va. App. at
91-92, 538 S.E.2d at 324-25.
A divorce court is authorized by statute to decree what it
deems expedient concerning custody and support of the parties'
minor children. Code § 20-107.2. Thereafter, the court may,
from time to time, "revise and alter such decree . . . as the
circumstances of the parents and the benefit of the children may
require." Code § 20-108. However, "[n]o support order may be
retroactively modified." Id.
Our decisions have firmly established that any modification
of child support is a matter that rests exclusively with a
divorce court and that a court may modify only future support
payments. See, e.g., Fearon v. Fearon, 207 Va. 927, 154 S.E.2d
165 (1967); Cofer v. Cofer, 205 Va. 834, 140 S.E.2d 663 (1965);
Newton v. Newton, 202 Va. 515, 118 S.E.2d 656 (1961). In
Newton, we stated the following:
[I]t is the obligation of the divorced husband to pay
the specified amounts according to the terms of the
decree and . . . he should not be permitted to vary
these terms to suit his convenience. In such a decree
the required payments are fixed according to the needs
of the child or children and the ability of the
husband to pay. Should these vary, from time to time,
and warrant a change in the terms of the decree
4
favorable to the husband, his remedy is to apply to
the court for such relief.
202 Va. at 519, 118 S.E.2d at 659. More recently, in Kelley v.
Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 56 (1994), we said that
"parents cannot contract away their children's rights to support
nor can a court be precluded by agreement from exercising its
power to decree child support." Accord Featherstone v. Brooks,
220 Va. 443, 446, 258 S.E.2d 513, 515 (1979); Carter v. Carter,
215 Va. 475, 481, 211 S.E.2d 253, 258 (1975).
The responsibility of a divorce court to review child
support amounts is necessary to ensure that the child's welfare
is adequately addressed and protected given the circumstances of
the parents. With the exception of terminating a non-unitary
support award upon achieving majority, specifying future changes
in the amount of child support is inappropriate because it does
not allow the divorce court to determine child support based on
contemporary circumstances.
We now consider the challenged provision of the 1991
Decree. We begin our analysis by recognizing the well-
established principle that all trial court rulings come to an
appellate court with a presumption of correctness. See Mack v.
Commonwealth, 177 Va. 921, 929, 15 S.E.2d 62, 65 (1941). Thus,
we will not invalidate a court's decree unless the only
reasonable interpretation thereof requires invalidation.
5
In the present case, the parties negotiated an agreement
respecting child support, and they submitted their agreement to
the court for its consideration and approval as required by our
statutes and decisions. We think it logically follows that,
when the court said child support could be renegotiated, the
court meant that, upon agreement of the parties, a consent
decree could be presented to the court for entry or, in the
event that the parties could not reach an agreement, the court
would adjudicate the matter and enter an order reflecting its
determination. Further, our conclusion is consistent with the
fact that the court did not expressly dispense with the
requirement of court approval. Therefore, as was the case with
the original negotiation, any renegotiation would be subject to
court approval. We think this requirement is implicit in the
divorce court's decree.
Therefore, we hold that the 1991 Decree is valid and that,
because the parties did not obtain court approval of their
renegotiations, Riggins is obligated to pay the arrearages and
interest as determined by the trial court. Although we reject
the Court of Appeals' finding that the 1991 Decree is void ab
initio, we, nonetheless, agree with the result reached by the
Court. 2
2
The trial court found Riggins in contempt of court, but
did not impose any sanctions. Riggins did not appeal the
6
Accordingly, the judgment of the Court of Appeals will be
affirmed.
Affirmed.
JUSTICE KOONTZ, with whom JUSTICE KINSER joins, dissenting.
I respectfully dissent. As reflected in the majority
opinion, the focus of this appeal is the provision in the trial
court’s 1991 decree which states, in accord with the parties’
agreement, 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.” (Emphasis
added). The parties had four minor children and their agreement
identified the emancipation events as “attain the age of
eighteen (18) years, marry, become self-supporting, become
otherwise emancipated, or die, whichever shall first occur.”
I have no quarrel with the majority’s rejection of the
Court of Appeals’ finding that this provision is void. It is
not void because as written it does not prevent the court from
modifying the child support award pursuant to Code § 20-107.2,
permit a retroactive modification of the child support award in
violation of Code § 20-108, or violate any public policy. And,
in passing, I should mention that indeed the Court of Appeals
contempt ruling to the Court of Appeals, and, therefore, the
court did not address the matter. Thus, the contempt ruling is
not before us.
7
might likely now agree that this provision is not void in view
of its most recent decision in Shoup v. Shoup, 37 Va. App. 240,
___ S.E.2d ___ (2001) (en banc) (former husband and former wife
not required to obtain court approval before reducing child
support pursuant to child support agreement incorporated into
divorce decree).
I disagree, however, with the majority’s conclusion that it
is “implicit” in the trial court’s decree that any renegotiation
of the amount of child support for the parties’ unemancipated
children “would be subject to court approval.” The express
language of the court’s decree dictates the opposite conclusion.
The court’s decree expressly directs the parties to renegotiate
the amount of the child support award upon the happening of
specific emancipation events. Those emancipation events are not
inconsistent with the best interests of a child, do not violate
any law, and their occurrence is reasonably ascertainable.
Moreover, their occurrence in this case with regard to two of
the parties’ children is not disputed. The court’s decree
further expressly provides, by the use of the word “or,” that,
in the absence of successful renegotiations, the amount of the
child support award is to be “submitted to a court for
adjudication.” The majority effectively converts the
disjunctive “or” into the conjunctive “and.”
8
Because the court’s 1991 decree is not void, the parties
were not merely required to adhere to its provisions, but they
also were entitled to rely upon its provisions. Thus, the issue
in the case is whether the parties renegotiated the amount of
child support consistent with the provisions of the court’s
decree. Mr. Riggins asserted in the trial court that he
renegotiated the amount of child support due under the
provisions of the decree and Mrs. O’Brien contended otherwise,
even though she made no objection to the amounts paid to her and
received those amounts for over six years. The trial court,
however, did not resolve that issue and the Court of Appeals
held that whether the parties renegotiated the child support
upon a child’s emancipation “is not dispositive of the legal
issues presented.” Riggins v. O’Brien, 34 Va. App. 82, 87, 538
S.E.2d 320, 322 (2000).
Accordingly, I would reverse the judgment of the Court of
Appeals and remand the case with instructions that it remand the
case to the trial court to determine whether the parties in fact
renegotiated the amount of child support as directed and
permitted by the trial court’s 1991 decree.
9