COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata
Argued at Alexandria, Virginia
MARJORIE BERNARDI GOLDIN
OPINION BY
v. Record No. 0280-00-4 JUDGE JAMES W. BENTON, JR.
DECEMBER 12, 2000
EDWIN GOLDIN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Barnard F. Jennings, Judge Designate
Edward S. Culbertson (Bucholtz & Culbertson,
P.C., on briefs), for appellant.
John E. Byrnes (Condo & Masterman, P.C., on
brief), for appellee.
Both parties appeal from an order modifying child support,
which was originally established by a settlement agreement that
was incorporated into their divorce decree. We affirm the order
in part, reverse in part, and remand for reconsideration.
I.
Edwin Goldin and Marjorie Bernardi Goldin were divorced by a
final divorce decree on January 29, 1997. The final decree
affirmed, ratified and incorporated by reference a property
settlement and separation agreement which required the husband to
pay to the wife child support for the parties' three daughters who
were born May 16, 1976, January 29, 1979, and July 19, 1984,
respectively. Pertinent to this appeal, the support provisions
are as follows:
A. Child support
Commencing on April 1, 1993, the Husband
shall pay to the Wife, as and for child
support for the three minor children of the
parties, the sum of $929.00 per month. Said
sum shall be due and payable on the first
day of each and every month.
The Husband's obligation to pay said
child support to the Wife shall not be
reduced for any periods of visitation with
the children. The parties acknowledge that
the Virginia child support formula takes
visitation periods into consideration.
The parties shall, each year on May 15,
disclose their respective gross income from
all sources by exchanging their most recent
W-2 forms and tax returns and shall re-apply
the Virginia child support formula to
determine the appropriate amount of child
support due. However, if they are unable to
mutually agree on the appropriate amount of
child support due, either party may seek
relief from a court of competent
jurisdiction.
The Husband's obligation to pay child
support for each child shall continue until
such time as each child reaches the age of
twenty-three (23) or twenty-two (22) years
and graduates from college.
B. Post-Secondary Education Expenses
In addition to the provisions of child
support set forth in this Agreement, the
Husband shall pay costs and expenses for the
post-secondary education of any child of
this marriage who is younger than
twenty-three (23) and who is in attendance
at any such college, university, trade
school or school of higher learning.
Two years after entry of the final decree, the wife filed a
petition against the husband to enforce the agreement. The wife
alleged in part that the husband failed to pay child support and
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college costs and expenses. The husband petitioned to modify
child support and custody. Following evidence at the show-cause
hearing, the trial judge entered a decree dated October 19, 1999,
finding the husband in noncompliance. The decree ordered the
husband to pay the wife child support arrearage in the amount of
$29,257 plus interest, ordered the husband to reimburse the wife
$15,843.10 for post-secondary education expenses she paid, and
granted other relief. The record does not reflect that either
party appealed from that decree.
The husband withdrew his petition to modify custody but
continued to seek modification of child support. At the hearing
on his petition, the parties "stipulated to [their] income levels
and health insurance cost by way of submitting a child support
guideline work sheet." The statement of facts indicates the
parties testified that the middle daughter was no longer a minor
and resided with the wife until May 1998. The husband testified
that the middle daughter and her fiancee lived with him for a
period of time after May 1998. The statement of facts also
recites that the husband was not permitted to testify concerning
the dollar amounts of support he paid for the middle daughter.
Upon this evidence, the trial judge modified the husband's child
support payments. The order (1) relieved the husband of the
obligation to support the parties' middle daughter, who was twenty
years old at the time of the hearing, (2) reduced the child
support for the youngest daughter, who was fifteen years old at
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the time of the hearing, to $700 per month until she reached age
eighteen, or age nineteen if still in high school, and (3) denied
each party's request for attorney's fees.
II.
The wife contends the trial judge erred in ordering that
support for the minor child, now age fifteen, would terminate at
age eighteen, or nineteen if she was still in high school and
living with the wife. The wife argues that the order is
contrary to the agreement, which provides a specific amount of
support for each child past the age of majority.
The husband contends the order properly tracks the
provisions of Code § 20-124.2(C). Although the husband concedes
that "the parties' Agreement . . . requires that the [husband]
continue to support his children for a period of time after each
child becomes emancipated," he argues that "[n]o dollar amount
is specified in respect to supporting the adult children and the
[wife] is not identified as the payee or recipient of the
support."
In pertinent part, Code § 20-109.1 provides as follows:
Any court may affirm, ratify and incorporate
by reference in its decree dissolving a
marriage . . . any valid agreement between
the parties, or provisions thereof,
concerning the conditions of the maintenance
of the parties, or either of them and the
care, custody and maintenance of their minor
children, or establishing or imposing any
other condition or consideration, monetary
or nonmonetary. Where the court affirms,
ratifies and incorporates by reference in
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its decree such agreement or provision
thereof, it shall be deemed for all purposes
to be a term of the decree, and enforceable
in the same manner as any provision of such
decree.
Applying this statute, we have held that "[i]ncorporation
of the [child support] agreement . . . into the decree rendered
the terms of the agreement so incorporated enforceable as a
decree of the court." Fry v. Schwarting, 4 Va. App. 173, 179,
355 S.E.2d 342, 345 (1987). Pursuant to Code § 20-108, however,
the divorce court retains "continuing jurisdiction after a final
decree of divorce has been entered, to modify its decree with
respect to the . . . maintenance of minor children." Edward v.
Lowry, 232 Va. 110, 112, 348 S.E.2d 259, 261 (1986). This power
to modify child support is not affected by the prior act of
affirming, ratifying and incorporating into the divorce decree
the child support agreement between the husband and wife. Id.
The Supreme Court has held, however, that an agreement
between a husband and wife for the support of their children
after the children attain majority is governed by somewhat
different principles.
A parent has the legal obligation to
support his [or her] children only during
their minority. Of course, this obligation
does not preclude the parent from
contracting to support the children after
their minority. However, where such
contracts are incorporated into support
decrees by a divorce court, they can only be
modified by that court to the extent of its
jurisdiction.
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The jurisdiction of a court to provide
for child support pursuant to a divorce is
purely statutory. The relevant statutes
only deal with the court's power to provide
for support and maintenance of minor
children. Once the child reaches majority,
the jurisdiction of the divorce court to
provide for his support and maintenance
terminates unless otherwise provided by
agreement incorporated into the divorce
decree.
Cutshaw v. Cutshaw, 220 Va. 638, 641, 261 S.E.2d 52, 54 (1979)
(emphasis added) (citations omitted). See also Eaton v. Eaton,
215 Va. 824, 213 S.E.2d 789 (1975); Paul v. Paul, 214 Va. 651,
203 S.E.2d 123 (1974).
In Cutshaw, the parties' agreement, which was affirmed,
ratified, and incorporated into the final decree of divorce,
required the husband to pay twenty-five dollars per week for
support of his children "until modified by a court of competent
jurisdiction or until such time as the last of the two children
leaves the [mother's] home . . . or until the last of said
children shall complete his or her education through the
undergraduate level whichever first occurs." Id. at 639-40, 261
S.E.2d at 53. During the minority of the younger child, the
trial judge increased the husband's payments, such that when the
younger child reached the age of majority the husband was paying
thirty-five dollars per month. Id. at 640, 261 S.E.2d at 53.
The Supreme Court reversed the trial judge's order, which
assessed the husband an arrearage based upon thirty-five dollars
per month for each month the husband failed to pay after the
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younger child reached the age of majority. Additionally, the
Court remanded the case for a recomputation based upon its
holding that the trial judge's jurisdiction to provide for
support of that child after the child's majority was solely
dependent upon the "agreement incorporated into the divorce
decree." Id. at 641, 261 S.E.2d at 54. See also Fry, 4 Va.
App. at 180-81, 355 S.E.2d at 346. The husband "concede[d] that
his contractual obligation to pay child support in the [agreed
amount] of $25 per week continue[d] although [the younger child
had] reached the age of majority." Cutshaw, 220 Va. at 641, 261
S.E.2d at 54.
In the present case, the parties agreed to an initial
payment of $929 per month and further agreed annually to apply
the "Virginia child support formula to determine the appropriate
amount of child support due" based upon their gross incomes.
This agreement obligated the parties to apply this formula to
determine the amount of support the husband was obligated to pay
even at the children's majority. The agreement provides that
"if they are unable to mutually agree . . . either party may
seek relief from a court."
Because the youngest child was still a minor, the trial
judge retained the power to determine her support. See Edward,
232 Va. at 112, 348 S.E.2d at 261. In part, the trial judge's
order provides as follows:
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Commencing December 7, 1999, the
[husband] shall pay to the [wife] Seven
Hundred Dollars . . . per month in child
support for the benefit of the parties'
minor child, . . . to be paid on the first
day of the month. In accordance with [Code]
section 20-124.2(C) . . . said support shall
be paid until age 18, provided that child
support shall continue to be paid for any
child who is (i) a full-time high school
student, (ii) not self-supporting, and (iii)
living in the home of the party seeking or
receiving child support until such child
reaches the age of nineteen or graduates
from high school, whichever first occurs.
The husband argues that the order tracks the language of
Code § 20-124.2(C). 1 The wife argues, however, that the
agreement was entered into in 1993 before Code § 20-124.2 became
effective and that the trial judge's power to modify the child
support ceased at the minor child's eighteenth birthday. She
further argues that the trial judge exceeded his authority in
making any modification effective through the child's nineteenth
birthday.
"One of the basic rules of construction of contracts is
that the law in force at the date of making a contract
1
In pertinent part, Code § 20-124.2(C) provides as follows:
The court may order that support be paid
for any child of the parties. The court
shall also order that support will continue
to be paid for any child over the age of
eighteen who is (i) a full-time high school
student, (ii) not self-supporting, and (iii)
living in the home of the party seeking or
receiving child support until such child
reaches the age of nineteen or graduates
from high school, whichever first occurs.
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determines the rights of the parties under the contract." Paul,
214 Va. at 653, 203 S.E.2d at 125. The law in effect in 1993
contained a clause, found in former Code § 20-107.2, that is
substantially similar to current Code § 20-124.2(C). That
statute also authorized a judge to order support for a child
until the age of nineteen or the child's graduation from high
school. 2 Therefore, although the trial judge did not cite the
correct statute, the remedy he applied is contemplated by the
agreement in this case. See Paul, 214 Va. at 653, 203 S.E.2d at
125 (holding that the law in effect at the time a contract is
made is as much a part of the contract as if incorporated
therein). Accordingly, we hold that the trial judge's power to
modify the support payment of the minor child continues until
she reaches the age of nineteen or graduates from high school,
whichever first occurs, provided the child meets all the
requirements of former Code § 20-107.2.
We also note that the trial judge's order does not state
that support for this child will terminate upon the happening of
2
Former Code § 20-107.2 included the following provision:
The court may also order that support be
paid for any child of the parties and, if
support is ordered, the court shall order
that it will continue to be paid for any
child who is (i) a full-time high school
student, (ii) not self-supporting and (iii)
living in the home of the parent seeking or
receiving child support until such child
reaches the age of nineteen or graduates
from high school, whichever first occurs.
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those events. In short, this portion of the order does not
address the effect of the parties' agreement after the minor
child reaches eighteen, or nineteen and is still in high school.
In Eaton, the Supreme Court noted as follows:
[T]he divorce court's jurisdiction over the
child is eliminated ipso facto when the
child reaches his majority. Moreover, the
same event terminates, by operation of law,
the prospective effect of the judicial
support decree. The statutory limitation on
the divorce court's authority to order
payment of the child support cannot be
nullified by the entry of a support order
during minority.
215 Va. at 827, 213 S.E.2d at 792. When the child is no longer
a minor and the conditions of former Code § 20-107.2 are not
applicable, the agreement will again provide the conditions of
support for this child. See Cutshaw, 220 Va. at 641, 261 S.E.2d
at 54.
When we presume, as we must, that the "trial judge properly
based his decision on the evidence presented . . . and properly
applied the law," Alphin v. Alphin, 15 Va. App. 395, 400, 424
S.E.2d 572, 575 (1992), we conclude that the order does not
expressly terminate child support for the minor child when she
reaches her majority. We will not presume the trial judge
intended by implication to do what the law forbids by ruling
contrary to the parties' agreement. Accordingly, we hold that
the trial judge's order does not address the issue of
post-minority support, that the parties lawfully may contract to
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provide support to children after their minority, and that such
an agreement for post-minority child support, which has been
incorporated by reference in the divorce decree, is enforceable.
See Cutshaw, 220 Va. at 641, 261 S.E.2d at 54; Paul, 214 Va. at
653-54, 203 S.E.2d at 125. In so ruling, we reject the
husband's argument that he alone decides the amount of support
he must pay to the children post-minority. The parties'
agreement controls. Upon these principles, we affirm those
portions of the order determining the support of the minor
child.
III.
The wife next contends the trial judge erred in terminating
support for the middle daughter, who was age twenty at the time
of the hearing. The husband argues that his obligation to
support the children after a child attained the age of majority
does not specify the amount, contains no due date, and does not
identify the payee. He also argues as follows:
[T]he trial [judge] heard evidence that the
[husband] continued to pay support for . . .
his adult child. [She] and her fiancee came
to live with the [husband] after she became
pregnant and was asked to leave the [wife's]
home. The [husband's] uncontroverted
testimony showed that he has been, and
continues to, support his adult child, and
thus, he was complying with the Agreement.
Terminating the husband's obligation, the trial judge
ruled, however, that the adult child "no longer resides with the
[husband] . . . [and that the] Agreement does not provide for
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child support in such circumstances where the child does not
reside with the parent who receives child support." That ruling
is erroneous.
Support agreements that are voluntarily made by the parties
are subject to the same rules of construction applicable to
contracts generally. See Tiffany v. Tiffany, 1 Va. App. 11, 15,
332 S.E.2d 796, 799 (1985). The parties' agreement expressly
provides that "[t]he husband's obligation to pay child support
for each child shall continue until such time as each child
reaches the age of twenty-three . . . or twenty-two . . . years
and graduates from college." The evidence proved that the
middle child had not reached age twenty-three but did not prove
her college status. Nothing in the agreement conditions the
husband's support obligation upon the place of the child's
residence. Cf. Tiffany, 1 Va. App. at 17, 332 S.E.2d at 800
(holding that the father had to pay college costs because the
agreement provided him no explicit veto over college selection).
Moreover, the issues of amount, due date, and payee are covered
in Section V (Child Support) of the agreement. Accordingly, we
hold that, upon the evidence in this record, the trial judge
erred in terminating the husband's support obligation for the
middle daughter.
IV.
By cross-appeal, the husband contends the trial judge
failed to make findings to support a deviation from the child
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support guidelines and that the record fails to support the
deviation.
Code § 20-108.1(B) provides a rebuttable presumption that
the amount of support which would result from the application of
the guidelines in Code § 20-108.2 is correct. "In order to
rebut the presumption, the [trial judge] shall make written
findings in the order." Code § 20-108.1(B). The order contains
no such findings. Accordingly, we hold that the trial judge
erred. We reverse the order and remand for reconsideration.
See Richardson v. Richardson, 12 Va. App. 18, 401 S.E.2d 894
(1991).
V.
The husband also contends the trial judge erred in refusing
to apply the support modification as of the date he filed his
petition. Code §§ 20-108 and 20-112 permit the trial judge to
modify the support order "with respect to any period during
which there is a pending petition for modification, but only
from the date that notice of such petition has been given to the
responding party." We have held that "whether to make
modification of a support order effective during a period when a
petition is pending is entirely within the discretion of the
trial [judge]." O'Brien v. Rose, 14 Va. App. 960, 965, 420
S.E.2d 246, 249 (1992). The record fails to establish an abuse
of discretion.
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For these reasons, we affirm parts of the trial judge's
order, reverse parts of the order, and remand for
reconsideration. The parties shall bear their own costs of
appeal.
Affirmed, in part,
reversed, in part,
and remanded.
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