Shoup v. Shoup

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Bray,
Annunziata, Bumgardner, Frank, Humphreys, Clements
and Agee
Argued at Richmond, Virginia

FRANCIS E. SHOUP
OPINION BY
v. Record No. 0098-00-4 JUDGE ROSEMARIE ANNUNZIATA
DECEMBER 27, 2001
HEIDI S. SHOUP

Upon a Rehearing En Banc

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge

Betty A. Thompson (Law Offices of Betty A.
Thompson, Ltd., on briefs), for appellant.

Valerie Szabo (Valerie Szabo, P.L.L.C., on
brief), for appellee.

This matter comes before the Court on a rehearing en banc

from a decision of a divided panel rendered February 27, 2001.

The panel affirmed the trial court's ruling that a provision of

the parties' child support agreement, which had been

incorporated into the final decree of divorce, was void and

unenforceable. The provision that the trial court declined to

enforce provided for modification of child support upon

emancipation of each of the parties' children, according to a

standard set forth in the agreement. The panel also reversed

the trial court's enforcement of a provision permitting

modification upon changes in child care expenses, and found
Francis E. Shoup ("father") in contempt and liable to Heidi S.

Shoup ("mother") for arrearages of $33,838.20 plus interest and

attorney's fees. We granted father's petition for a rehearing

en banc, stayed the mandate of that decision, and reinstated the

appeal. Upon rehearing en banc, we find the decree's provisions

for future modification by agreement of the parties valid and

enforceable and hold that the trial court erred in its

calculation of arrearages and in finding the father in contempt

of its support order. We also hold that the trial court

properly enforced the provision for modification upon a change

in child-care costs. Therefore, we affirm in part and reverse

and remand in part.

I.

Background

The parties were divorced by a final decree of divorce

entered by the Fairfax County Circuit Court on September 1,

1994. At the time of the divorce, the parties had three minor

children: Allison Elliot Shoup, born November 30, 1977; Francis

Elliot Shoup, IV, born June 8, 1979; and Kyle A.M. Shoup, born

June 20, 1985. The final divorce decree incorporated the

parties' June 27, 1994 Custody, Support and Property Settlement

Agreement. 1 In accordance with the parties' agreement, the final

1
The incorporated agreement provided, in relevant
part:

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5. SUPPORT AND MAINTENANCE OF THE CHILDREN
a. The Husband shall, . . . pay directly to
the Wife the monthly base support amount of
Two Thousand One Hundred and Seventy Seven
Dollars ($2,177.00) per month, for the
support and maintenance of the children of
the parties . . . . This amount is the sum
calculated for child support as [is]
required by Section 20-108.2 of the Code of
Virginia (1950, as amended), pursuant to the
worksheet attached as Attachment A to this
agreement. . . .

* * * * * * *

c. The parties agree that they shall split,
in the same proportion as their annual gross
incomes bear to their annual combined gross
incomes, as calculated in Attachment A of
this Agreement or as modified by a court in
the future, any child care costs incurred on
behalf of the children due to the employment
of the custodial parent. The Wife shall
notify the Husband of any change in the
amount of the child care costs. In the
event that child care costs rise in a month,
the Husband shall be responsible for
reimbursing the Wife on the first day of the
next month for his proportionate share of
such increases. In the event that child
care costs decline in a month, the Wife
shall notify the Husband who shall reduce
his payment of child care costs on the first
day of the next month by his proportionate
share of such decline. Upon request by the
Husband, the Wife annually will provide the
Husband with a copy of canceled checks, tax
deposits and such other information as Wife
may maintain documenting the payment of
child care costs for the period for which
said information is requested.
d. The Husband shall make consecutive
monthly installments of the child support on
the first day of each month until each child
dies, marries, becomes self-supporting,
reaches the age of eighteen (18) years or
otherwise becomes emancipated, whichever
event first occurs, except that support

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decree ordered the father to pay $2,177 per month in child

support to the mother. The decree also provided for a

proportionate division of certain medical expenses and for

reimbursement of child-care costs based on the parties' relative

annual gross incomes as calculated in the support guideline

worksheet, Attachment A to the agreement.

The oldest child, Allison, graduated from high school in

June, 1995 and turned eighteen years of age on November 30,

1995. Beginning in October, 1995, the father unilaterally

reduced the amount of support by approximately one-third to

$1,452 per month. He continued making payments for child-care

costs, although the mother, beginning in October, 1995 incurred

none. In May, 1997, the parties' second child, Elliot,

graduated from high school and turned eighteen one month later.

The father again unilaterally reduced the amount of support by

another one-third to $764 per month. Although the father

unilaterally reduced the amount of support paid on each of these

shall continue to be paid for a child if he
or she is a full-time high school student,
not self-supporting and living in the home
of the residential custodian, until he or
she reaches the age of nineteen (19) years
or graduates from high school, whichever
first occurs.
e. If there is any change in circumstances,
the parties shall follow the child support
guidelines contained in § 20-108.2 of the
Code of Virginia or its successor statute
and any other relevant Virginia statutes and
case law for determination of child support.

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two occasions, the record shows that the mother did not object

until she filed the present suit to collect the arrearages.

On April 13, 1999 the mother filed a petition for a rule to

show cause against the father for failing to pay $2,177 per

month in child support. The matter was heard on June 24, 1999.

In its letter opinion dated October 30, 1999, the trial court

found the father to be in contempt of court and found that he

was in arrears in his support payments from October, 1995

through May, 1999 because a support order may not be

retroactively modified by the parties or without court approval. 2

Based on the parties' agreement as incorporated into the final

decree, the trial court also awarded father a credit for his

2
In support of its decision, the trial court referred to
our summary of the law in Goodpasture v. Goodpasture, 7 Va. App.
55, 58, 371 S.E.2d 845, 847 (1988):

No support order may be retroactively
modified. Code § 20-108; Cofer v. Cofer,
205 Va. 834, 839, 140 S.E.2d 663, 667
(1965). Past due support installments
become vested as they accrue and are
thereafter immune from change. Id. Parties
cannot contractually modify the terms of a
support order without the court's approval.
Capell v. Capell, 164 Va. 45, 52, 178 S.E.
894, 896 (1935). Nor does a party's passive
acquiescence in nonpayment of support
operate to bar that party from later seeking
support arrearages. Richardson v. Moore,
217 Va. 422, 423, 229 S.E.2d 864, 866
(1976). Should circumstances change
requiring alteration in the amount of
support, a party's remedy is to apply to the
court for relief. Newton v. Newton, 202 Va.
515, 519, 118 S.E.2d 656, 659 (1961).

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payments of child-care expenses that had not been incurred by

the mother. The trial court entered an order dated December 7,

1999 finding the father in contempt and entered judgment against

the father in the principal sum of $33,838.20, with interest at

the judgment rate. It also awarded mother her attorney's fees.

II.

Analysis

Father raised the following issues for determination en

banc: (1) whether the final decree which incorporated the

parties' agreement pursuant to statute should have been upheld,

including the provisions for future modification of child

support; (2) whether the court erred by ignoring the statutory

guidelines in determining child support arrearages where the

incorporated agreement provided for the application of

guidelines in computing child support in the event of a change

of circumstances; (3) whether the panel's holding that the Shoup

divorce decree was a nullity and void destroyed its vitality as

an enforceable order and thereby relieved father from any

alleged arrearages and from a charge of contempt; and (4)

whether the trial court erred in ordering an award of attorney's

fees to appellee. Mother argues that the child support

modification provisions did not, in fact, authorize modification

of child support payments without court approval and that a

provision purporting to do so would improperly undermine the

authority of the court to set child support awards. The issues

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raised by the parties in this case bring into sharp relief the

foundational principles of Virginia divorce law regarding the

divorce court's jurisdiction to determine child support and the

rights of the parties to resolve those issues by agreement.

Divorce and its incidents are matters rooted in and

reflective of a state's public policy. The state is "directly

interested in determining the status of its own citizens, and to

this end can and does establish and enforce its own policy in

relation to marriage and divorce . . . ." Heflinger v.

Heflinger, 136 Va. 289, 308, 118 S.E. 316, 322 (1923).

Consistent with this interest, the General Assembly enacted a

statutory basis for the grant of divorce in the Commonwealth.

Jackson v. Jackson, 211 Va. 718, 719, 180 S.E.2d 500, 500

(1971); Code § 20-107.2. The judicial authority granted in

divorce matters encompasses the authority to determine child

support. Code § 20-79.1. 3

3
The judicial authority granted in divorce matters also
encompasses the power to determine property rights, Code
§ 20-107.2, establish spousal support, Code § 20-107.1, and
resolve disputes regarding child custody and support, Code
§ 20-107.2. The divorce court also has been granted the power
to enforce its decrees regarding divorce and its incidents.
Campbell v. Campbell, 32 Va. App. 351, 356, 525 S.E.2d 145, 147
(2000) (holding that parties may "access the equitable powers of
the court to enforce the decree"); Code § 20-124.2 (custody and
visitation); Code § 16.1-292 (power to hold person in violation
of spousal or child support order in contempt).

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 Under Virginia law, the grant of a divorce petition is a

purely judicial function grounded in statute. Jackson, 211 Va.

at 719, 180 S.E.2d at 500. Accordingly, the parties cannot, by

agreement, effectuate a divorce. Foster v. Foster, 195 Va. 102,

104, 77 S.E.2d 471, 473 (1953). However, the parties can reach

agreement on all other issues. Divorcing parents may and,

indeed, are encouraged under Virginia public policy, to reach

agreement respecting the care and support of their minor

children. Morris v. Morris, 216 Va. 457, 459, 219 S.E.2d 864,

867 (1975) ("[P]ublic policy favors prompt resolution of

disputes concerning the maintenance and care of minor

children . . . . Voluntary, court-approved agreements promote

that policy and should be encouraged."); Richardson v.

Richardson, 10 Va. App. 391, 399, 392 S.E.2d 688, 692 (1990)

("Settlement agreements between parties to [divorce] lawsuits

are designed to put an end to litigation and are favored by the

law." (citing Stamie E. Lyttle Co. v. County of Hanover, 231 Va.

21, 26, 341 S.E.2d 174, 178 (1986)); Code § 20-109.1.

A substantial body of law has been developed explicating

the principles that govern the court's jurisdiction to enter

child support awards, as well as those that govern the parties'

right to reach agreement on the issue. In resolving the issues

in the case before us, it is important to understand how the

principles that govern the court's jurisdiction to enter child

support awards impact the parties' right to reach agreement on

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the issue. While the two sets of principles often intersect, on

certain questions, the principles of one are independent from

and unrelated to the function and dictate of the other.

Where the court's jurisdiction to set support has been

invoked, either in the absence of an agreement or where the

parties seek to have their agreement of child support reviewed

and considered by the court in the course of its determination

of a proper award, the court has been granted broad discretion

to make an award. Franklin v. Commonwealth, Dept. of Social

Servs., 27 Va. App. 136, 143, 497 S.E.2d 881, 885 (1998).

However, its exercise of discretion is not unfettered, as

numerous decisions of the Virginia appellate courts make

manifest.

The best interest of the child or children
is the paramount and guiding principle in
setting child support, whether it be
adopting the presumptive amount, calculating
an alternate sum after the presumptive
amount has been rebutted, ordering the
amount agreed upon between the parents, or
approving, ratifying and incorporating, in
whole or in part, the child support
provisions of a contract.

Watkinson v. Henley, 13 Va. App. 151, 158-59, 409 S.E.2d 470,

474 (1991).

In addition, the trial court must base an award for child

support on contemporaneous events. Keyser v. Keyser, 2 Va. App.

459, 345 S.E.2d 12 (1986). It may not award support

prospectively, Solomond v. Ball, 22 Va. App. 385, 470 S.E.2d 157

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(1996), including upon the emancipation of one of many children.

See Johnson v. Johnson, 1 Va. App. 330, 333, 338 S.E.2d 353, 355

(1986) (where trial court awarded unitary support to children,

in order to reduce payments to the remaining children upon the

emancipation of the oldest child, the husband must "apply to the

court for a modification of the decree upon a change of

condition"). It may not modify an award retroactively. Code

§ 20-108; Bennett v. Commonwealth, 22 Va. App. 684, 696, 472

S.E.2d 668, 674 (1996) (citing Cofer v. Cofer, 205 Va. 834,

838-39, 140 S.E.2d 663, 666-67 (1965)).

A review of the relevant cases makes clear that these legal

principles define the court's jurisdiction and power, and

circumscribe the court's exercise of its discretion in setting

child support. They do not necessarily govern the effect,

scope, or validity of an agreement that the court has

incorporated into its decree and upon which it has based its

child support award. Indeed, the parties' well-established and

broad right to reach legally binding and enforceable agreements

concerning the support of their children is firmly rooted in

Virginia law. A trial court may not disregard an agreement

regarding child support in setting an award. Watkinson, 13 Va.

App. at 158, 409 S.E.2d at 474 (holding that the trial court

must consider agreed provisions in determining amount of child

support). Where an agreement has been reached and either party

requests incorporation, the agreement may be affirmed and

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incorporated into the court's final decree and "deemed for all

purposes to be a term of the decree, and enforceable in the same

manner as any provision of such decree." Code § 20-109.1; see

also Morris, 216 Va. at 459, 219 S.E.2d at 866-67 ("The purpose

of [Code § 20-109.1] is to facilitate enforcement of the terms

of an incorporated agreement by the contempt power of the

court."). Where the court adopts the parties' agreement by

incorporating it into its decree, it is enforceable, to the

word, as any other term of the decree. Fry v. Schwarting, 4 Va.

App. 173, 179, 355 S.E.2d 342, 345 (1987).

Our cases applying Code § 20-109.1 place only three

limitations upon the parties' right 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. 4 See

id.; Watkinson, 13 Va. App. at 157, 409 S.E.2d at 474. 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. Code

§ 20-108; Kelley v. Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 56

(1994); Featherstone v. Brooks, 220 Va. 443, 446, 258 S.E.2d

4
In this case, the issue of whether the trial court
properly determined that the decree's provisions regarding the
future modification of support by agreement of the parties were
in the best interests of the children is not before us and we,
thus, do not address the question.

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513, 515 (1979); Morris, 216 Va. at 461, 219 S.E.2d at 867;

Watkinson, 13 Va. App. at 157, 409 S.E.2d at 473. The third

limitation, emanating from the first two, prohibits the parties

from terminating by contract a parent's duty to support a child.

See Kelley, 248 Va. at 298, 449 S.E.2d at 56 ("parents cannot

contract away their children's rights to support"); Church v.

Church, 24 Va. App. 502, 508, 483 S.E.2d 498, 501 (1997)

(finding decree void because it was based on agreement to

terminate father's obligation to pay child support).

Neither the Virginia Code nor our case law imposes any

additional restrictions on the parents' ability, in the context

of divorce, to mutually determine the support of their children.

Indeed, under certain circumstances, the right to reach

agreement regarding support is more extensive than the court's

power to decree support absent an agreement. See, e.g., Moreno

v. Moreno, 24 Va. App. 227, 232, 481 S.E.2d 482, 485 (1997)

(holding that where a trial court bases its child support order

on the parties' agreement, it need not "determin[e] the precise

presumptive amount of support," although such a determination is

required absent an agreement); Spagnolo v. Spagnolo, 20 Va. App.

736, 743, 460 S.E.2d 616, 619 (1995) (noting that contracts

between parents to continue support for children past the age of

majority will be enforced, although the court lacks jurisdiction

to order such support in the absence of such an agreement

(citing Eaton v. Eaton, 215 Va. 824, 827, 213 S.E.2d 789, 792

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(1975)). No case law exists which precludes the court from

incorporating within its decree any provision from the parties'

agreement found to be consistent with the best interest of the

child, and not void as against the public policy as enunciated

in Kelley and its progeny. See Code § 20-109.1 (providing trial

court with discretion to incorporate all or some of the parties'

valid agreement without enunciating any limits). It follows

that, where the court affirms, ratifies, approves and

incorporates such an agreement into its divorce decree, in whole

or in part, it has necessarily exercised the discretion granted

to it under Code § 20-108.1 and determined that the agreement is

consistent with the best interests of the child. Blackburn v.

Michael, 30 Va. App. 95, 101, 515 S.E.2d 780, 783 (1999) (trial

court must determine that parties' agreement setting child

support serves the best interest of the child before approving

and incorporating agreement (citing Scott, 12 Va. App. 1245,

1248, 408 S.E.2d 579, 582 (1991)).

In this case, the agreement as incorporated into the

divorce decree does not purport to circumvent the court's

jurisdiction to enforce support, modify support, or intervene

upon petition of either party. Cf. Kelley, 248 Va. at 298, 449

S.E.2d at 56 (finding agreement void because it attempted to

preclude the trial court from exercising its power to decree

child support where wife agreed "never to file a petition in any

court" requesting child support and stipulated that she would

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reimburse husband for all sums paid to him if a court ordered

him to pay such support). Rather, either party may at any time

invoke the court's jurisdiction to determine child support

consistent with the best interests of that child. 5 Nor does the

agreement purport to "contract away" the children's right to

support from either parent. Id. (finding contract void because

"the children's rights to receive support from both parents were

substantially abridged"). Under the agreement, the minor

children's rights to support remain intact and fully viable.

Furthermore, while a court may not make an award prospectively,

nothing in our case law invalidates a decretal provision

reflecting the parties' agreement to address and make future

modifications of support as circumstances change. See, e.g.,

Schmidt v. Schmidt, 6 Va. App. 501, 502, 370 S.E.2d 311, 312

(1988) (enforcing a provision of separation agreement under

which child support payments decreased by $100 per month when

custodial parent sold the marital residence and further

decreased by $100 per month when each child graduated from high

school); Tiffany v. Tiffany, 1 Va. App. 11, 332 S.E.2d 796

(1985) (upholding property settlement agreement entitling

husband to reduce support payments the month preceding the date

that each child turned eighteen).

5
Both before and after modification of the agreed to amount
of child support, included in the incorporated agreement, either
party, upon a showing of a change in circumstances, could
petition the court for modification of the support award.

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 We, therefore, conclude that neither the provisions of the

agreement addressing child support, nor the decretal terms that

reflect them, contravene the public policy of Virginia. See

Blackburn, 30 Va. App. at 101, 515 S.E.2d at 783. Rather, the

agreement in this case fosters the Commonwealth's public policy

favoring the amicable resolution of child support issues.

Morris, 216 Va. at 459, 219 S.E.2d at 867; Schmidt, 6 Va. App.

at 503, 370 S.E.2d at 312. In such circumstances, 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 the

maintenance and care of children upon divorce. As we stated in

Moreno:

[W]e are aware of neither holding nor
statute that requires a trial court to hear
evidence on the matter of child support
where the parties have agreed to the amount
of support and do not seek the court's
determination of the matter. . . . [T]he
resources of both the court and the parties
would be wasted by requiring a trial judge
to sua sponte require parties to litigate a
settled matter.

24 Va. App. at 233, 481 S.E.2d at 485-86.

In sum, we find that the parties' agreement is fully

consistent with Virginia law governing the scope, effect, and

validity of such agreements. Its incorporation into the final

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decree of divorce necessarily rested on a finding that the

provisions were consistent with the best interest of the child.

See Watkinson, 13 Va. App. at 158, 409 S.E.2d at 474; Scott, 12

Va. App. at 1248, 408 S.E.2d at 582. 6 Paragraph 5(d) of the

incorporated agreement provides for a reduction in support upon

the emancipation of each of the parties' minor children.

Paragraph 5(e) provides that, upon a change in circumstances,

such as the emancipation of a child, the parties will follow the

child support guidelines and other relevant law when determining

the child support then due and owing. Because the trial court

failed to enforce this provision of the decree, its finding of

contempt and award of arrearages constitute reversible error.

See Commonwealth v. Skeens, 18 Va. App. 154, 158, 442 S.E.2d

432, 434 (1994) ("[T]he terms of a support decree must be

strictly complied with and payments made when due to the

designated payee in accordance with the terms of the decree."

(citations omitted)). We, therefore, reverse the trial court's

finding of contempt and its decision regarding arrearages and

remand this matter to the trial court for: (1) reconsideration

of whether father, in fact, followed the provisions of the

incorporated agreement when reducing the amount of support;

6
The issue of whether the trial court properly determined
that the decree's provisions regarding the future modification
of support by agreement of the parties, both self-executing and
non-self-executing, were in the best interests of the child was
not raised on appeal and we, thus, do not address the question.

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(2) recalculation of arrearages, if any; and (3) reconsideration

of its contempt finding.

We turn finally to mother's contention that the trial court

erred in giving father a credit for child-care costs because he

did not request such a credit at trial. For the reasons that

follow, we disagree.

A trial court is authorized to consider child-care expenses

and include in a child support award an appropriate amount

reflecting those costs. See Code §§ 20-108.1(B)(8),

20-108.2(F), 20-108.2(G)(3)(b). Here, the incorporated

agreement required the mother to notify the father of any change

in the child-care expenses incurred and permitted the father to

reduce his support payment accordingly. Mother did not notify

father of a decrease in child-care costs beginning in October,

1995, and father continued to pay child-care expenses. For the

same reasons that we upheld the provision of the agreement of

the parties for modification of support upon the emancipation of

each child, we find the provision authorizing adjustments in

support corresponding with changes in child-care costs valid and

enforceable. Therefore, the trial court properly awarded father

a credit representing father's overpayment for child-care costs

not incurred by mother.

Finally, the incorporated agreement provides that:

[A]ny costs, including but not limited to
counsel fees, court costs, investigation
fees and travel expenses, incurred by a

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 party in the successful enforcement of any
of the . . . provisions of this Agreement
. . . shall be borne by the defaulting
party. Any such costs incurred by a party
in the successful defense to any action for
enforcement of any of the . . . provisions
of this Agreement shall be borne by the
party seeking to enforce compliance.

Because the trial court has yet to determine whether father has

defaulted in his child support obligation or has successfully

defended this enforcement action, we remand to the trial court

for reconsideration of its award of attorney's fees in

accordance with its decision and the terms of the agreement. We

also remand for consideration of an award of court costs and

attorney's fees on appeal, consistent with its decision and the

terms of the agreement.

Affirmed in part,
reversed in part
and remanded.

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Agee, J., with whom Frank, J., joins, concurring.

While I generally agree with the foundational analysis of

the majority's opinion and the end result in this case, I write

separately to express the basis for the validity of

"self-executing" child support agreements and the appropriate

review of the incorporated agreement in this case.

The public policy issue arising in this case is whether a

divorce decree's incorporated terms regarding child support are

valid where those terms include an agreed upon change in child

support payments upon the occurrence of certain future events

without further action of the court. This type of provision has

been termed "self-executing" although that is not a term used in

the Code or referenced widely in case law. 7

Father apparently deemed the agreement at bar to be

"self-executing" and unilaterally reduced his child support

payments as each child reached the age of eighteen. Both the

trial court and a panel majority of this Court found these

actions violative of public policy, holding that the child

support payments could only be changed by court order. See

Shoup v. Shoup, 34 Va. App. 347, 542 S.E.2d 9 (2001). On that

basis, the panel majority also found the incorporated

7
For current purposes, I will assume a self-executing child
support agreement is one in which terms "effective immediately
without the need of any type of implementing action" are used.
See Black's Law Dictionary 1364 (7th ed. 1999); see also Schmidt
v. Schmidt, 6 Va. App. 501, 506, 370 S.E.2d 311, 314 (1988).

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self-adjustment provision for periodic fluctuations in

child-care expense payments to be invalid, although the trial

court did not. However, upon rehearing en banc, the members of

this Court, with whom I join, give effect to "self-executing"

child support agreements.

Clearly, Code § 20-109.1 provides that parties can agree to

the terms of child support within a custody and property

settlement agreement and submit that agreement to the court.

See Richardson v. Richardson, 10 Va. App. 391, 392 S.E.2d 688

(1990). The child support terms become the terms of the court's

decree if the court affirms, ratifies and incorporates those

into its decree. "Code § 20-109.1 provides that a court may

affirm, ratify and incorporate by reference in its decree any

valid agreement between the parties, or provisions thereof,

concerning the conditions of the maintenance of the parties

. . . and the care, custody and maintenance of their minor

children." Rodriquez v. Rodriquez, 1 Va. App. 87, 90, 334

S.E.2d 595, 596 (1985). "Where the court does . . . incorporate

the agreement or provisions thereof, it shall be deemed for all

purposes to be a term of the decree and enforceable as such

. . . by the contempt power of the court." Id. at 90, 334

S.E.2d at 597 (citation omitted). The plain meaning of Code

§ 20-109.1 is, therefore, the basis upon which the validity of

self-executing child support agreements rests.

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 "When the legislature has spoken plainly
courts may not change or amend legislative
enactments under the guise of construing
them. The province of construction lies
wholly within the domain of ambiguity.
. . . That which is plain needs no
interpretation. Winston v. City of
Richmond, 196 Va. 403, 407-08, 83 S.E.2d
728, 731 (1954)."

Armstrong v. Commonwealth, 36 Va. App. 312, 320, 549

S.E.2d 641, 645 (2001) (quoting Jones v. Commonwealth,

16 Va. App. 354, 358, 429 S.E.2d 615, 617 (1993)).

A child support agreement presented to a court under Code

§ 20-109.1 is not, however, entitled to the same mandatory

recognition by the court as is an agreement for spousal support

under Code § 20-109(C). The court must make a determination

that the terms of a child support agreement (which become terms

of the decree) are in the best interests of the child. 8 Code

§ 20-108.1(B); see also Blackburn v. Michael, 30 Va. App. 95,

515 S.E.2d 780 (1999); Watkinson v. Henley, 13 Va. App. 151, 409

S.E.2d 470 (1991).

Thus, a court may incorporate the parties' agreement as to

child support into its decree, and the terms will be enforceable

8
The best interest of the child or children is the
paramount and guiding principle in setting child support,
whether it be adopting the presumptive amount, calculating an
alternative sum after the presumptive amount has been rebutted,
ordering the amount agreed upon between the parents, or
approving, ratifying and incorporating, in whole or in part, the
child support provisions of a contract. See Watkinson v.
Henley, 13 Va. App. 151, 153, 409 S.E.2d 470, 471 (1991).

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upon an initial finding that the agreement is in the child's

best interest. This is true even when the terms provide for

future changes in child support, without further court action,

provided (1) the court approves of the future changes when it

incorporates the terms into its decree and (2) the court's

continuing authority under Code § 20-108 to revise and alter

child support in the future is not limited. See generally

Kelley v. Kelley, 248 Va. 295, 449 S.E.2d 55 (1994); Schmidt v.

Schmidt, 6 Va. App. 501, 370 S.E.2d 311 (1988); Tiffany v.

Tiffany, 1 Va. App. 11, 332 S.E.2d 796 (1985).

A court's ratification of an incorporated agreement's child

support terms carries the express or implied imprimatur that the

court has found those terms in the best interest of the

children. See generally Scott v. Scott, 12 Va. App. 1245, 408

S.E.2d 579 (1991). As the en banc majority correctly concludes,

such a finding that the agreed child support is in the

children's best interests can be made under a "self-executing"

agreement, one which modifies the amount of child support at a

future date upon the occurrence of a modification event. Such

an adjustment may occur without additional court approval of the

modification at the time the modification is implemented. See

Schmidt, 6 Va. App. 501, 370 S.E.2d 311; Tiffany, 1 Va. App. 11,

332 S.E.2d 796.

In the context of a "self-executing" child support award,

like any other award of child support, a court must first

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determine that the future adjustments are in the child(ren)'s

best interests. Such a determination requires that both the

event(s) triggering adjustment, and the terms of adjustment, are

clear and definitive. See id. It should be self-evident that a

court cannot determine that a future self-executing adjustment

to child support is in a child's best interests if the

triggering events or the terms of adjustment cannot be

determined.

Accordingly, I concur with the majority, in reasoning and

result, to affirm the trial court's decision to credit father

for the adjustments in child-care expense payments. No further

court intervention is required for the parties to adjust the

child-care expense reimbursement, which is based on clear and

definitive modification terms (actual expenditures divided on a

pro rata share of verified annual incomes). While this

adjustment provision is plainly self-executing, the salient

reason it meets muster is that a court does not employ guesswork

to decide if this method of future adjustment is in the best

interests of the children when entering the decree, which

incorporates the agreement.

The same judgment, however, cannot be given on future

changes in child support payments under the Shoup decree and

incorporated agreement. Although the majority reads the decree

to provide "for a reduction in support upon the emancipation of

the parties' minor children," I do not find definitive direction

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in the decree and its incorporated agreement as to how a revised

amount is to be calculated "immediately without the need of any

implementing action."

While the decree provides "[father] is ordered to pay

[mother] child support in accordance with all the terms,

provisions and requirements of their June 27, 1994 Custody,

Support and Property Settlement Agreement," it then specifically

fixes child support:

[Father] shall pay the amount of $2,177.00
per month, as and for child support, to
[mother]. Child support shall continue
until a minor child dies, marries, becomes
emancipated, or reaches the age of eighteen
years, whichever occurs first, or until
further order of the court[.]

(Emphasis added.) Neither the decree nor the incorporated

agreement definitively establishes the adjustment to the initial

child support amount as each child turns eighteen years of age.

However, the decree is clear that the initial set amount of

$2,177 is in effect only until the first child reaches the age

of eighteen unless there is a prior order changing it. There

was none.

There are no specific adjustment terms in the decree and

its incorporated agreement directing a self-executing adjustment

to the child support amount. Instead, one must intuit that the

reference in the decree to pay child support "in accordance with

all the terms . . . of their . . . property settlement

agreement" is an enforceable link to some part of that

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agreement. Father posits that link to this portion of the

agreement:

[5]e. If there is any change in
circumstances, the parties shall follow the
child support guidelines contained in
§ 20-108.2 of the Code of Virginia or its
successor statute and any other relevant
Virginia statutes and case law for
determination of child support.

(Emphasis added.)

The agreement does not provide that the child support

guidelines then in effect fix the terms of modification, but

instead requires the parties to follow the guidelines plus

"other relevant Virginia statutes and case law for determination

of child support." Under the language of the incorporated

agreement, further judicial intervention would be required to

definitely determine how other "relevant Virginia statutes and

case law" would alter the guideline amount. Clearly, such a

provision is not "self-executing," as it is not "effective

immediately without the need of implementing action."

More importantly, a court asked to incorporate such a

provision could not determine, on the date it entered its decree

incorporating the agreement, what the future child support terms

would be upon one of the Shoup children attaining age eighteen.

Thus, no finding could be made that such unknown terms were in

the best interests of the remaining unemancipated children. 9 If

9
Had the agreement referenced a definitive standard, such
as a specific monetary amount or simply the guidelines in effect

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the child(ren)'s best interests cannot be ascertained, then the

portion of the decree setting out an unknown future child

support adjustment would not be susceptible to self-adjustment

by the parties without further action of the court.

The plain terms of the decree required the monthly payment

of $2,177 until a child attained the age of eighteen. The

decree is silent as to what amount then would be due. It is

clear, though, that the decree does not set $2,177 as the amount

of continuing monthly child support due from father for the

remaining unemancipated children.

Upon a Shoup child reaching age eighteen, the decree and

incorporated agreement are manifestly not self-executing. 10 In

plain terms, neither party knew what the appropriate amount of

child support for the remaining unemancipated child(ren) was to

be under § 5(e) of the agreement.

However, the trial court determined an arrearage, and found

father in contempt, based on the $2,177 monthly amount, but

without any finding as to what child support amount was in the

best interests of the remaining unemancipated children and

at the child's eighteenth birthday, the court would have
definitive terms upon which to make a finding of the best
interests of the remaining unemancipated children as to the
future adjustment.
10
While § 5(e) of the incorporated agreement is not
self-executing, that does not affect its validity or
enforceability when the court determines any child support
adjustment.

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required by the decree and incorporated agreement. Clearly,

that decision of the trial court was erroneous. Father's duties

as to child support were then not definite and he could not,

therefore, be found in contempt.

As a general rule, "before a person may be
held in contempt for violating a court
order, the order must be in definite terms
as to the duties thereby imposed upon him
and the command must be expressed rather
than implied."

Winn v. Winn, 218 Va. 8, 10, 235 S.E.2d 307, 309 (1977)

(citation omitted).

Accordingly, I concur in the result reached by the majority

to reverse the trial court's finding of contempt as to father

and to remand the issue of any child support arrearage to the

trial court for a determination of the appropriate child support

amount. To do so, the trial court needs to determine the child

support guidelines in effect as each child attained age eighteen

and how "other relevant Virginia statutes and case law" affects,

if at all, the appropriate child support amount for the

remaining unemancipated child(ren). Only after such a

determination is made can it be further determined if an

arrearage or overage exists as finally adjusted for the

child-care expenses. In view of the necessity to remand to the

trial court, I would also reverse the trial court's award of

attorney's fees and remand to the trial court for

reconsideration on that issue as well. Whether any attorney's

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fees are due, and to and from whom under the terms of the

agreement, is dependent on the ultimate determination as to the

child support payment arrearage or overage, if any.

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