Riggins v. O'BRIEN

COURT OF APPEALS OF VIRGINIA

Present: Judge Annunziata, Senior Judges Duff and Hodges
Argued at Alexandria, Virginia

ROBERT JOHN RIGGINS
OPINION BY
v. Record No. 2297-99-4 JUDGE ROSEMARIE ANNUNZIATA
DECEMBER 12, 2000
MARY LOUISE O'BRIEN

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

Jerry M. Phillips (Phillips, Beckwith, Hall &
Chase, on briefs), for appellant.

Elizabeth D. Teare (Surovell, Jackson,
Colten & Dugan, P.C., on brief), for
appellee.

Robert John Riggins appeals two decisions of the circuit

court, one finding him liable to Mary Louise O'Brien for

$106,137.99 in past due child support and interest under the

parties' support agreement and the other setting the amount of

ongoing monthly child support. Riggins contends the trial court

(1) erred in interpreting the child support provisions of the

final decree of divorce entered June 12, 1991; (2) erred in

finding that the parties did not renegotiate child support

pursuant to the provisions of the final decree; (3) abused its

discretion in refusing to impose monetary sanctions for O'Brien's

civil contempt in relocating the minor children without permission

of the court; (4) erred by severing the issue of the ongoing child
support payments; (5) erred by granting a non-suit of O'Brien's

petition for modification of child support and visitation despite

Riggins's pending interrelated issues; (6) erred by not

considering the Code § 20-108.1 factors when setting child

support; and (7) erred by modifying the final decree of divorce to

change the emancipation date for termination of child support.

Riggins also seeks appellate attorney's fees. For the reasons

that follow, we affirm the trial court's rulings.

BACKGROUND

The parties married in 1974. After almost fifteen years of

marriage and four children, they separated in 1989. Under a

property settlement agreement signed by the parties on June 10,

1991, they resolved their outstanding property distribution

issues. They did not resolve the issues of custody, visitation or

child support, and a hearing on those issues was scheduled for

June 12, 1991. However, prior to the start of the hearing, the

parties reached an oral agreement on those issues. The terms of

their agreement as to child support, custody and visitation were

set out only in the final decree of divorce, entered June 12,

1991, which provided in pertinent part:

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

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 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, there being no existing arrearages as
of June 12, 1991; 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 agreed child support payment each month until

August 1992, when the parties' eldest child reached the age of

eighteen. Riggins testified that he then wrote a letter to

O'Brien, indicating that he was reducing the amount of child

support by one-quarter, pursuant to the parties' agreement.

O'Brien testified that there was no "re-negotiation" of the amount

of child support nor was the amount submitted to the court.

However, it was uncontested that O'Brien did not object to the

reduced amount of child support and continued to receive the

monthly payments for over six years without voicing any objection.

In addition, in 1994, following her remarriage, O'Brien moved

to Kansas with the children. Riggins testified that he first

learned about the pending relocation from his children less than a

month before the move took place. Riggins subsequently relocated

to New York in February 1995. The majority of the expenses for

visitation were borne by Riggins.

In 1996, the parties' second oldest child, a daughter then

age sixteen, left high school and moved into a condominium with

two young men. Riggins notified his daughter and O'Brien that he

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would not pay child support for his daughter under those

conditions, as he considered her emancipated. Riggins made a

corresponding reduction in the amount of his monthly child

support.

In October 1998, O'Brien filed a petition for a rule to show

cause alleging that Riggins was in contempt for his failure to pay

$3,250 in monthly child support since 1992. Riggins also filed a

petition for a rule to show cause, alleging that O'Brien's

relocation to Kansas violated the provision for joint custody. A

hearing on these two issues, plus the issue of prospective child

support, was set for March 15, 1999. On the March 12, 1999

motions day, O'Brien moved to non-suit her petition to modify

child support, which the presiding judge granted. In order to

keep the determination of child support on the docket for the

March 15, 1999 hearing, Riggins filed his own petition seeking

modification of child support and visitation. At the hearing,

however, Judge MacKay ruled that O'Brien's non-suit removed the

issues of child support modification and visitation from the

proceeding. After receiving the evidence, Judge MacKay issued a

final decision on September 15, 1999, finding Riggins liable for

$85,332.94 in child support arrearage and $20,805.05 in

pre-judgment interest. On August 30, 1999, following a hearing on

May 3, 1999, Judge Thacher issued a final decision setting the

amount of child support. Riggins appealed both decisions.

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 I. and II. Renegotiation of Child Support

In our opinion, the issue of whether the parties renegotiated

the child support upon the eldest child reaching majority and

again upon the daughter quitting high school and moving out of her

mother's home is not dispositive of the legal issues presented.

Although "public policy favors prompt resolution of disputes

concerning the maintenance and care of minor children," Morris v.

Morris, 216 Va. 457, 459, 219 S.E.2d 864, 867 (1975), any such

agreements for support, either established at the time of divorce,

or for modification post-divorce, must be reviewed and approved by

a court of law. Id. at 461, 219 S.E.2d at 867 ("[T]he court

retains continuing jurisdiction to modify its decree as to the

maintenance of minor children, notwithstanding the existence of a

contract between the parents."); Scott v. Scott, 12 Va. App. 1245,

1249, 408 S.E.2d 579, 582 (1991) ("[A]greement[s] between husband

and wife cannot prevent the court from exercising its power to

make and modify child support awards.").

Following the Virginia Supreme Court's decision in Morris,

we held in Goodpasture v. Goodpasture, 7 Va. App. 55, 371 S.E.2d

845 (1988), that "[p]arties cannot contractually modify the

terms of a support order without the court's approval. . . .

Should circumstances change requiring alteration in the amount

of support, a party's remedy is to apply to the court for

relief." Id. at 58, 371 S.E.2d at 847; see also Kelley v.

Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 56 (1994). Indeed, we

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have approved specific procedures to be followed by the trial

court in its determination of whether to ratify, affirm and

incorporate an agreement which sets child support. In Watkinson

v. Henley, 13 Va. App. 151, 409 S.E.2d 470 (1991), we held that

the agreed amount must be evaluated relative to the factors set

forth in Code § 20-108.1 as follows:

[W]here parents have agreed upon an amount,
or agreed upon other provisions, for the
support and maintenance of a child, the
trial court must consider the provisions of
the agreement, that relate to the factors in
Code §§ 20-107.2 and 20-108.1 [now contained
exclusively in § 20-108.1], in deciding
whether the presumptive amount would be
unjust or inappropriate in a particular
case. In so doing, the trial court must
consider whether the agreed provisions for
the child would better serve the interest or
"equities" for the parents and children.
Code § 20-107.2(2)(h) [now
§ 20-108.1(B)(18)]. 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.
Furthermore, we hold that if the trial court
finds that the presumptive amount is unjust
or inappropriate because the provisions in a
separation agreement serve the best interest
of the child, the court may vary from the
guidelines by ordering support be paid in an
amount equal to the benefits provided for in
the contract. Alternately, the court may,
rather than judicially set support, elect to
affirm, ratify and incorporate by reference
the agreement between the parties, or any
provisions thereof, concerning the
maintenance and support of the minor

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 children, or establish or impose any other
condition or consideration, monetary or
nonmonetary.

Id. at 158-59, 409 S.E.2d at 474 (citations omitted). Accord

Spagnolo v. Spagnolo, 20 Va. App. 736, 460 S.E.2d 616 (1995)

(reversing the trial court's failure to follow the parties'

agreement, where the record indicated that the trial judge

failed to adequately consider the best interests of the child,

as the judge neither considered the entire package of benefits

available to the child as set forth in the support agreement nor

compared the relative merits of the support agreement to the

statutory support guideline amount).

Because the "best interest of the child . . . is the

paramount and guiding principle in setting child support,"

Watkinson, 13 Va. App. at 158, 409 S.E.2d at 474, the need for

court approval of agreements reached by the parties to modify

the amount of support to be paid has neither been eliminated

from the paradigm established for determination of child

support, nor has it been subordinated to contract principles or

public policy considerations in favor of the resolution of

disputes by the parties themselves. See Featherstone v. Brooks,

220 Va. 443, 446, 258 S.E.2d 513, 515 (1979) ("Code § 20-108

gives the divorce court continuing jurisdiction to change or

modify its decree concerning the custody and maintenance of

minor children, and a contract between husband and wife cannot

prevent the court from exercising this power." (citation

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omitted)). Furthermore, the principle is applicable to the

court’s consideration of the child support amount established

both by agreements reached in conjunction with divorce and

post-divorce. See id.; Watkinson, 13 Va. App. at 158-59, 409

S.E.2d at 474; see also Acree v. Acree, 2 Va. App. 151, 342

S.E.2d 68 (1986). 1 There is no principled basis upon which to

conclude that where the law requires a judicial determination of

the best interests of the child initially, that such a

determination is no longer necessary when a change is sought, by

whatever means.

In Acree, we made clear that where only the form or method

of the child support payment, and not the amount, is modified by

agreement of the parties, such modification may be proper and

court approval may be obtained post facto. In such cases, the

total amount of support to be paid has not been modified, and

subsequent court approval of the change does not constitute an

improper retroactive modification of the child support payment

1
In Acree, we held that "[b]ecause of the unique facts" of
that case, the father should be awarded credit for his
non-conforming payments. 2 Va. App. at 152, 342 S.E.2d at 68.
We found that the father had not altered the amount of support
that he had paid, but rather he had altered the method of
payment. We noted that "[t]he agreement of the parties as
carried out worked to the benefit of the child to the same
degree as absolute conformity with the terms of the decree would
have." Id. at 158, 342 S.E.2d at 72. Here, the parties
modified the amount of the award, not merely the method of
payment, and it cannot be said the new agreement worked to the
benefit of the remaining minor children "to the same degree as
absolute conformity with the terms of the decree would have."

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decreed. See Acree, 2 Va. App. at 157-58, 342 S.E.2d at 71; see

also Code § 20-108.

In the instant case, even if the parties modified by

agreement the amount to be paid in support of the minor

children, upon the emancipation of two of their children, their

agreement resulted in diminished child support payments to the

minor children who remained in the mother's custody. Such a

reduction in support by agreement, without the court's approval,

is in clear contravention of Virginia law and public policy.

Goodpasture, 7 Va. App. at 59, 371 S.E.2d at 848 (to allow the

parties to modify by agreement the amount of support owed

without prior court approval "would substitute the

self-determined interests of one or both of the parents over the

court-determined best interests of the child"); see also Cofer

v. Cofer, 205 Va. 834, 838, 140 S.E.2d 663, 666 (1965); Bennett

v. Commonwealth, 22 Va. App. 684, 696, 472 S.E.2d 668, 674

(1996); cf. Acree, 2 Va. App. 151, 342 S.E.2d 68. Thus, unlike

the parties in Acree, the parties in this case modified the

amount of the award, not merely the method of payment. As such,

we cannot say that the new agreement reducing support worked to

the benefit of the remaining minor children "to the same degree

as absolute conformity with the terms of the decree would have."

Acree, 2 Va. App. at 158, 342 S.E.2d at 72.

It is contended that because the divorce decree itself

incorporated the parties' agreement and ordered that such

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prospective modifications of child support were to be

"renegotiated," any resulting modification is consistent with

the court's final order and is, therefore, proper. We disagree.

In our judgment, such an order is violative of Code § 20-108 2 and

is, therefore, ineffective. Not only does the order purport to

allow retroactive reduction of the child support amount by

agreement of the parties in the absence of court review and

approval, it contravenes an equally important principle of law

which makes invalid a prospective modification of child support.

See Keyser v. Keyser, 2 Va. App. 459, 345 S.E.2d 12 (1986). As

we stated in Keyser:

[N]eeds and capacities change as
circumstances change and [] these changes
are not always fairly predictable.
Determination of support awards must be
based on contemporary circumstances and
modified in the future as changes in
circumstances occur.

* * * * * * *

2
The court may, from time to time after
decreeing as provided in
§ 20-107.2 . . . revise and alter such
decree concerning the care, custody, and
maintenance of the children and make a new
decree concerning the same, as the
circumstances of the parents and the benefit
of the children may require. . . .

* * * * * * *

No support order may be retroactively
modified . . . .

Code § 20-108.

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 The statutory scheme provided by the General
Assembly does not contemplate automatic
changes or escalator clauses.

Id. at 461-62, 345 S.E.2d at 13-14 (citations omitted).

In short, whether the court's decree is seen as one which

allows the parties to retroactively modify the child support

amount by agreement, or do so prospectively, in our judgment,

such a decree is void and ineffective. Kelley, 248 Va. at 299,

449 S.E.2d at 57 ("[T]he rights of children to support and

maintenance . . . cannot be impinged by contract, and any

contract purporting to do so is facially illegal and

void. . . . [A] void judgment may be attacked and vacated in

any court at any time, directly or collaterally.").

III. Refusal to Grant Monetary Sanctions

For the reasons set out more fully in our memorandum opinion

in O'Brien v. Riggins, No. 2421-99-4 (Va. Ct. App. Dec. 12, 2000),

we find that the trial court abused its discretion in finding

O'Brien guilty of civil contempt for her relocation to Kansas in

1994. There was no express prohibition on relocation in the

parties' final decree of divorce, nor was there an express

requirement that the parties notify each other or the court in

writing thirty days prior to any planned relocation. Code § 20-

124.5, which requires the inclusion of such a condition in each

order of custody or visitation, was enacted in 1994, well after

the entry of the parties' decree. Therefore, the trial court

abused its discretion in finding O'Brien in contempt.

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Accordingly, we find no abuse of discretion in the trial court's

refusal to grant Riggins greater monetary sanctions against

O'Brien.

IV. Severance

Riggins contends the trial court erred by permitting a

severance of the child support issues from the other issues. As

noted below, Riggins did not appeal the trial court's decision

granting O'Brien's non-suit. The record demonstrates that the

trial court did not sever the issue, but refused Riggins's request

to consolidate his newly-filed petition for determination of child

support with the pending contempt proceedings. We find no

reversible error in the trial court's refusal to consolidate these

matters into a single hearing.

V. Non-suit

Riggins also contends the trial court erred when it granted

O'Brien's voluntary non-suit. Code § 8.01-380(A) and (B) provide

that a party may take one timely-filed non-suit as a matter of

right. See generally Nash v. Jewell, 227 Va. 230, 315 S.E.2d 825

(1984). We find Riggins is procedurally barred from pursuing this

issue because he did not appeal the trial court's order granting

the non-suit within thirty days after its entry. See Rule 5A:6.

VI. Code § 20-108.1 Factors

Riggins contends the trial court erred by failing to consider

the statutory factors contained in Code § 20-108.1(B) when setting

child support. We find no error.

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 The determination of child support is a
matter of discretion for the trial court,
"and such awards will not be reversed on
appeal unless plainly wrong or unsupported by
the evidence." Although the amount of child
support called for by the guidelines set
forth in Code § 20-108.2 is presumptively
correct, this presumption may be
rebutted . . . .

Ragsdale v. Ragsdale, 30 Va. App. 283, 295, 516 S.E.2d 698, 703

(1999) (citations omitted). The statute provides that "[i]n order

to rebut the presumption, the court shall make written findings in

the order, which findings may be incorporated by reference, that

the application of such guidelines would be unjust or

inappropriate in a particular case." Code § 20-108.1(B); see

Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896

(1991).

We find no error in the trial court's decision to rely only

on evidence arising during 1998 or later as that most relevant to

the parties' current circumstances for purposes of calculating

prospective child support. Based upon the relevant evidence, the

trial court deviated from the guideline amount by imputing

additional income to O'Brien, based upon her most recent earnings.

See Code § 20-108.1(B)(3). We find no error in the trial court's

refusal to further deviate from the guidelines on the basis of

unspecified amounts of capital gains allegedly received by O'Brien

upon the sale of her residence. See Code § 20-108.1(B)(7). We

also find no error in the trial court's refusal to include as

income amounts O'Brien received in previous years from her

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husband. Cf. Orlandi v. Orlandi, 23 Va. App. 21, 29, 473 S.E.2d

716, 722 (1996).

Evidence supports the trial court's refusal to deviate from

the guidelines on the basis of certain contributions made by

Riggins to Uniform Gift to Minor accounts held for his children.

These accounts, which were not controlled by Riggins, were not

"independent financial resources" of the children. See Code

§ 20-108.1(B)(9).

The trial court was not required to deviate from the

presumptive amount based upon certain taxes paid in full by

Riggins in 1998. See Code § 20-108.1(B)(18). Similarly, the

trial court was not required to deviate from the presumptive

amount based upon support paid by Riggins for the daughter of his

new family. See Code § 20-108.1(B)(1). A trial court may, but is

not required to, consider support paid for a new family when the

failure to do so would render application of the guideline amount

"unjust or inappropriate." Finally, the trial court did not err

in failing to consider unspecified amounts of "relocation

expenses" paid by Riggins, particularly in light of the fact that

the trial court ruled that O'Brien would bear the transportation

costs of future visitation.

VII. Improper Modification of Decree

We find no merit in Riggins's contention that the trial court

erred by modifying his child support obligations to provide for

the parties' two younger children until the age of nineteen,

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pursuant to the provisions of Code § 20-124.2. No contract

between the parties can deprive children of the support to which

they are entitled by law. See Kelley, 248 Va. at 298, 449 S.E.2d

at 56.

VIII. Appellate Attorney's Fees

We decline the parties' requests for an award of appellate

attorneys' fees. See O'Loughlin v. O'Loughlin, 23 Va. App. 690,

479 S.E.2d 98 (1996). Accordingly, the decree appealed from is

affirmed.

Affirmed.

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