COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia
JENNIFER MIEDERHOFF
OPINION BY
v. Record No. 2372-01-2 JUDGE JERE M. H. WILLIS, JR.
MAY 28, 2002
PATRICK MIEDERHOFF
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Janet E. Brown (Janet E. Brown, P.C., on
brief), for appellant.
Matthew N. Ott (Matthew N. Ott, P.C., on
brief), for appellee.
Jennifer Miederhoff contends on appeal that the trial court
erred (1) in offsetting Patrick Miederhoff's non-conforming
payments against his child support arrearages by holding
enforceable an agreement under which he paid their son's college
tuition and other expenses in lieu of delinquent child support;
and (2) in limiting the accrual of interest on the child support
arrearages. For the following reasons, we affirm in part and
reverse and remand in part.
I. BACKGROUND
The Miederhoffs' May 14, 1990 final divorce decree included
a provision that Mr. Miederhoff "owes a duty of support to the
minor child [Eric,] born of this marriage [on April 19, 1978,]
in the amount of $75.00 per week, beginning on August 7, 1989,
and continuing each week until said child reaches the age of
eighteen."
In January 1992, Mr. Miederhoff accused Ms. Miederhoff of
cohabiting with another man without the benefit of marriage. He
threatened to file a court action seeking custody of Eric. The
parties entered into negotiations. Ms. Miederhoff offered to
forgo receiving child support if Mr. Miederhoff agreed not to
seek Eric's custody. He agreed and proposed a consent order,
providing, inter alia, that "[Mr. Miederhoff] shall not be
obligated to pay [Ms. Miederhoff] child support for the
afore-mentioned child" and that "[n]o child support arrearage
exists."
Mr. Miederhoff endorsed the consent order and sent it to
Ms. Miederhoff for her endorsement. At that time, he ceased
making child support payments. Ms. Miederhoff neither endorsed
the consent order nor filed it with the court. In January 1996,
Mr. Miederhoff learned that the consent order had not been
endorsed by Ms. Miederhoff and filed with the court. He
employed an attorney, who contacted Ms. Miederhoff regarding the
formalization of the agreement. By letter dated March 5, 1996,
Ms. Miederhoff informed Mr. Miederhoff's attorney that if the
consent order was modified to provide that Mr. Miederhoff would
be "largely responsible for the financial support of Eric's
college education, [she] would reconsider [her] decision."
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On April 19, 1996, Eric reached the age of majority, and
Mr. Miederhoff's ongoing support obligation ceased. However,
commencing in July 1996, Mr. Miederhoff began paying for Eric's
college education, pursuant to the terms of Ms. Miederhoff's
March 5, 1996 letter and the parties' prior agreement. Between
the summer of 1996 and the spring of 2000, Mr. Miederhoff paid
$11,611 in educational expenses for Eric.
On May 5, 2000, Ms. Miederhoff obtained a show cause order
against Mr. Miederhoff, alleging that he owed her $16,650 in
child support due to non-payment between January 6, 1992 and
April 19, 1996. The juvenile and domestic relations district
court credited Mr. Miederhoff $11,611 against the arrearage and
found him to be $5,039 in arrears. It ordered that interest
would accrue on the arrearage as of January 1, 2001. Ms.
Miederhoff appealed to the trial court.
On retrial de novo, the trial court held (1) that Mr.
Miederhoff had a child support arrearage of $16,800; (2) that he
was entitled to an offset of $11,611 for payments made toward
Eric's college education pursuant to the parties' agreement; (3)
that Ms. Miederhoff should be allowed three years of interest in
the amount of $467; and (4) that additional interest would
accrue from June 1, 2000.
II. ANALYSIS
On appeal, Ms. Miederhoff contends that the trial court
erred in offsetting Mr. Miederhoff's payments for Eric's college
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expenses against his child support arrearages by holding
enforceable the parties' agreement that he would pay those
expenses in lieu of paying the child support arrearage. She
further contends that the trial court abused its discretion in
limiting the accrual of interest.
A. AGREEMENT EXISTED JUSTIFYING OFFSET
Court-ordered child support payments become vested as they
accrue. The court lacks authority to order changes as to past
due installments. Commonwealth v. Skeens, 18 Va. App. 154, 158,
442 S.E.2d 432, 434 (1994). Generally, the law does not permit
extra-judicial agreement to vary the terms of a support order or
permit a payor spouse credit for non-conforming support
payments. See Acree v. Acree, 2 Va. App. 151, 342 S.E.2d 68
(1986). The purpose of this rule is to promote respect for and
consistency in the enforcement of orders and to avoid confusion.
Id. at 156-57, 342 S.E.2d at 71. The general rule is not
without exception, however.
[A]lthough a court may not retroactively
modify a child support obligation, allowing
a payor spouse credit for non-conforming
support payments, in the limited situations
where permitted, is not a modification of a
support order. See Acree v. Acree, 2
Va. App. 151, 152, 342 S.E.2d 68, 69 (1986).
A court may, when equitable and under
limited circumstances, allow a party credit
for non-conforming support payments,
provided that the non-conforming support
payment substantially satisfies the purpose
and function of the support award, see
[id.], and to do so does not vary the
support award.
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Gallagher v. Gallagher, 35 Va. App. 470, 476, 546 S.E.2d 222,
225 (2001).
Before credit will be given for agreed non-conforming
payments, two conditions must exist. First, there must be an
agreement between the parties which modifies only the terms or
method of payment. Second, there must be no adverse effect on
the support award. Id. "An agreement which itself establishes
or modifies the support obligation, rather than only the terms
or method of payment, does not meet this test." Id. We
approved one narrow exception to this rule in Acree.
Acree involved a bilateral modification agreement that
provided for a permanent change of custody of the subject child.
It was agreed that the child, who had theretofore resided with
her mother, would thenceforth reside with her father. The
father was relieved of further support payments to the mother on
behalf of that child. We held that where a
custodial parent has by his or her own
volition entered into an agreement to
relinquish custody on a permanent basis and
has further agreed to the elimination of
support payments and such agreement has been
fully performed, . . . the purpose to be
served by application of an inflexible rule
denying credit for non-conforming payments
is outweighed by the equities
involved. . . . By assuming [complete]
physical custody and total responsibility
for the support of the child, the [father]
fulfilled his obligation under the decree.
Acree, 2 Va. App. at 157-58, 342 S.E.2d at 71-72.
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"Our holding in Acree was premised in part on the fact that
when a complete change in custody occurs, the parent originally
obligated to pay support for that child 'has . . . furnished
support in a different manner under different circumstances
easily susceptible of proof.'" Gallagher, 35 Va. App. at 477,
546 S.E.2d at 225 (quoting Acree, 2 Va. App. at 157, 342 S.E.2d
at 71). "In short, . . . absent a complete change in custody,
'the appropriate remedy' in a case in which the parties have
agreed to a modification of support 'is for the part[ies]
[timely] to petition the court to modify the decree.'" Id. at
478, 546 S.E.2d at 226 (quoting Commonwealth v. Skeens, 18
Va. App. 154, 158, 442 S.E.2d 432, 435 (1994)).
This case falls within the rule announced in Acree and
reaffirmed in Gallagher.
First, the trial court found that the parties had an
agreement. This factual finding, if supported by the evidence,
will not be disturbed on appeal. See Ivy Construction Company
v. Booth, 226 Va. 299, 301, 309 S.E.2d 300, 301 (1983);
Dickerson v. Conklin, 218 Va. 59, 65, 235 S.E.2d 450, 454
(1977); Brooks v. Roanoke County Sanitation Authority, 201 Va.
934, 938, 114 S.E.2d 758, 761-72 (1960). In considering this
question, we view the evidence in the light most favorable to
Mr. Miederhoff, who prevailed on that issue in the trial court.
See Cloutier v. Queen, 35 Va. App. 413, 417, 545 S.E.2d 574, 576
(2001).
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So viewed, the evidence disclosed that when Mr. Miederhoff
first threatened to seek Eric's custody, Ms. Miederhoff offered
to forgo receiving further child support if Mr. Miederhoff would
not pursue a custody change. Although Ms. Miederhoff did not
endorse Mr. Miederhoff's proposed consent order, she acquiesced
in his forbearance from seeking a change of custody and in his
cessation of child support payments. When the question of
formalizing the agreement arose again in 1996, Ms. Miederhoff
amended her offer to say that she would reconsider her
"decision" if Mr. Miederhoff would pay Eric's college expenses.
Understanding this to mean that if he paid the college expenses,
Ms. Miederhoff would forgo any child support claim and endorse
the consent order, Mr. Miederhoff proceeded to pay those
expenses, again with Ms. Miederhoff's acquiescence. Not until
Eric had arrived at an age where his custody was no longer an
issue and Mr. Miederhoff had completed paying the college
expenses did Ms. Miederhoff first raise the question of whether
she had, in fact, agreed to Mr. Miederhoff's understanding.
These circumstances support the trial court's determination that
the parties had an agreement whereby Ms. Miederhoff would forgo
a claim for child support in exchange for Mr. Miederhoff's
abstention from seeking a custody change and his payment of
Eric's college expenses. The trial court's finding, being thus
supported by the evidence, will not be disturbed on appeal.
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Second, when Eric reached the age of majority on April 19,
1996, his eligibility for child support ceased. On that date he
was no longer subject to the custody of his mother or entitled
to ongoing support from his father. His reaching the age of
majority was tantamount to a complete change of custody. The
arrearages owed by Mr. Miederhoff became an indebtedness to Ms.
Miederhoff.
Third, the agreement between the Miederhoffs did not alter
the child support provision of the divorce decree. The accrued
delinquency in child support payments was recognized and
enforced in full by the trial court. Mr. Miederhoff was held
fully responsible for the arrearages that had accrued between
January 6, 1992 and April 19, 1996.
Fourth, the agreement between the parties, which was fully
performed by Mr. Miederhoff, merely altered the method of
payment. Had Mr. Miederhoff paid $11,611 to Ms. Miederhoff, he
would unquestionably have been entitled to credit. Ms.
Miederhoff's agreement authorized Mr. Miederhoff to make this
payment to Virginia Commonwealth University ("VCU"). This is no
different than if he had paid her and she, in turn, had paid
VCU.
Finally, the non-conforming payment is readily susceptible
of proof. Its calculation is plain and is not disputed.
The agreement the parties made and performed was not made
in the context of an ongoing custody and support obligation. To
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the contrary, it involved a child who had reached the age of
majority, was discharged from custody, and was no longer
entitled to ongoing support pursuant to the support order. The
agreement in no way modified or abrogated the May 1990 support
order, but rather was in discharge of it. As a result of the
agreement, Eric was afforded the benefit of a college education.
The trial court did not err in offsetting Mr. Miederhoff's
arrearage.
B. INTEREST
"The general rule is that in the absence of factors making it
inequitable, interest should be assessed on unpaid installments of
[support] from the date they mature or become due until the date
they are paid." Allig v. Allig, 220 Va. 80, 85, 255 S.E.2d 494,
497-98 (1979). Interest is generally awarded at the judgment
rate. The trial court's award of interest based on its
determination of Mr. Miederhoff's unpaid arrearage does not
comport with this general rule and contains no statement of
calculation permitting an assessment on appeal of whether that
award represents a fair exercise of discretion. For that reason,
we reverse the interest award and remand this case to the trial
court for calculation of the interest awarded Ms. Miederhoff from
Mr. Miederhoff and a statement on the record of that calculation.
Affirmed in part,
reversed in part
and remanded.
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