COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
CHRISTEN ERICKSON SMILEY
OPINION BY
v. Record No. 0146-98-2 JUDGE DONALD W. LEMONS
APRIL 6, 1999
MICHAEL DOUGLAS ERICKSON
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Dixon L. Foster, Judge Designate
Christopher F. Cowan (Cowan, North &
LaFratta, L.L.P., on briefs), for appellant.
Watson M. Marshall (Nicole L. Fox; Marshall &
Marshall, on brief), for appellee.
Christen Erickson Smiley appeals an order of the circuit
court arising from a child support dispute with Michael Douglas
Erickson. Smiley argues that the circuit court lacked
jurisdiction to hear Erickson’s appeal from the Powhatan
Juvenile and Domestic Relations District Court. Smiley also
appeals the circuit court’s refusal to increase the amount of
Erickson’s appeal bond and the circuit court’s holding that the
parties entered into an enforceable agreement to waive
court-ordered child support. Finally, Smiley argues that the
circuit court erred in refusing to vacate and reconsider its
order of December 30, 1997.
I. BACKGROUND
Christen Erickson Smiley (Smiley) and Michael Douglas
Erickson (Erickson) are the parents of Stephanie Lynn Erickson,
a minor child born on November 10, 1986, whose support is the
subject of this appeal. On November 7, 1988, the Powhatan
Juvenile and Domestic Relations District Court (J & DR court)
ordered Erickson to pay $400 per month as child support.
Erickson moved to Florida and failed to keep his support
payments current. By March 1997 an arrearage in the amount of
$36,975 had accumulated.
In March 1997 the Virginia Division of Child Support
Enforcement notified Erickson that garnishment proceedings would
begin against his wages. Erickson contacted Smiley and the two
purported to negotiate an out-of-court settlement in which both
agreed that because Smiley “was in such dire need of money,”
Erickson would pay her $19,200 of the total arrearage, and
Smiley would forgive the balance. Erickson paid $19,200 to
Smiley; however, he did not sign the written document tendered
to him memorializing the agreement. 1 Thereafter, he failed to
pay support on the periodic basis previously ordered.
On June 17, 1997, Smiley initiated a motion for show cause
summons against Erickson for his continued failure to pay child
support. On July 16, 1997, a trial was held in the J & DR court
1
Erickson’s failure to sign the “agreement” does not affect
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and the court found the agreement between the parties to forgive
Erickson’s arrearages in court-ordered child support was
unenforceable. In an order dated September 17, 1997, the J & DR
court found Erickson in contempt, sentenced him to twelve months
in jail suspended, and found arrearages of $18,975 as of July
16, 1997. In addition to his current monthly support
obligation, the J & DR court ordered Erickson to pay $75 per
month until the arrearages were paid.
On September 29, 1997, the J & DR court received a letter
from Erickson expressing his intention to appeal the court’s
finding of contempt for his failure to pay child support as
ordered and the court’s finding of arrearages of $18,975. The
Clerk of the J & DR court advised Erickson by letter dated
September 29, 1997 that his letter had been received, and sent
him a copy of the notice of appeal setting December 11, 1997 as
the date of the hearing in the circuit court. The clerk
informed him that an appeal bond of $500 had to be received
before October 16, 1997. Although the record does not reveal
when Erickson posted the $500 appeal bond, no one contests its
timeliness.
On November 3, 1997, Smiley filed “Motions to Dismiss, to
Increase Appeal Bond and to Continue” in the circuit court. In
a memorandum in support of her motions, Smiley argued that the
our holding.
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appeal bond of $500 was insufficient to satisfy the amount of
the judgment and that Erickson’s failure to post sufficient bond
deprived the court of jurisdiction under Code § 16.1-296(H). On
November 4, 1997, Judge Thomas V. Warren, finding that Erickson
failed to comply with Code § 16.1-296(H), dismissed the portion
of the appeal pertaining to the finding of arrearages. The
court retained jurisdiction over the issue of contempt.
On December 5, 1997, Erickson filed a “Motion by Appellant
to Reconsider Dismissal of Appeal of Michael Douglas Erickson as
to Amount of Arrearage.” Erickson argued that he had not
received Smiley’s “Motions to Dismiss, to Increase Appeal Bond
and to Continue,” because Smiley had mailed them to the wrong
address. Erickson also argued that the parties had entered into
a binding agreement to forgive all past-due court-ordered child
support.
On December 11, 1997, Smiley filed an “Appellee’s
Memorandum in Opposition to Appellant’s Motion to Reconsider
Dismissal of Appeal as to Arrearage.” Smiley argued that
Erickson’s failure to comply with Code § 16.1-296(H) deprived
the court of its jurisdiction over the matter. In addition,
Smiley argued that the amount of court-ordered support cannot be
modified by agreement of the parties without the approval of the
court.
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On December 11, 1997, Erickson argued his motion to
reconsider before Judge Designate Dixon L. Foster. Smiley asked
the court to affirm Judge Warren’s finding that Erickson had
failed to comply with the appeal bond requirements of Code
§ 16.1-296(H), or in the alternative, she requested that the
court require Erickson to post an appeal bond in the amount of
the $18,975 support arrearage. Effectively denying both
motions, Judge Foster proceeded to hear the appeal of the
finding of contempt and punishment as well as the finding of
arrearages. Upon hearing the evidence presented, by order
entered on December 30, 1997, Judge Foster found that the
parties created a binding and enforceable agreement waiving a
portion of the arrearages owed by Erickson and dismissed the
finding of contempt and ordered the show cause summons
dismissed. Judge Foster found that the total remaining
arrearage, from March 1997 to December 11, 1997, was $2,832.75
and ordered the $500 appeal bond posted by Erickson applied
toward the satisfaction of the arrearage.
Smiley noted her objections to the December 30, 1997 order
and on January 7, 1998, filed a motion to vacate and reconsider.
On January 12, 1998, Erickson filed “Appellant’s Response to
Appellee’s Motion to Vacate and Reconsider.” On January 13,
1998, Judge Foster heard arguments and overruled both motions.
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II. MOTION TO RECONSIDER DISMISSAL OF ERICKSON’S APPEAL
Judge Warren’s order of November 4, 1997 was void ab initio
because it was entered in violation of Rule 1:13. No notice was
given to either party of the entry of the order, no endorsements
were obtained, and nothing in the order indicates that
compliance with the rule was waived or dispensed with for good
cause. See Norfolk Div. of Social Serv. v. Unknown Father, 2
Va. App. 420, 345 S.E.2d 533 (1986).
Judge Foster had authority pursuant to Code
§ 8.01-428(A)(ii) to set aside the order of November 4, 1997 and
hear Erickson’s appeal and Smiley’s motions to dismiss, to
increase the bond, and for continuance. Judge Foster denied
Smiley’s motions and immediately proceeded to try the case. We
hold that Judge Foster did not err when denying the motion to
dismiss at that stage of the proceeding. We hold that Judge
Foster did err when denying the motion to increase the bond and
to require additional bond subject to dismissal. The failure to
grant the motion for a continuance has been abandoned on appeal.
In Commonwealth v. Walker, 253 Va. 319, 485 S.E.2d 134
(1997), the Virginia Supreme Court clearly stated that the
failure to post a bond, even where the district court had set no
bond, was “a fatal jurisdictional defect that cannot be cured.”
Id. at 323, 485 S.E.2d at 136 (citations omitted). In Walker,
the Court rejected the notion that “equitable considerations”
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found in Code § 16.1-114.1 could allow the circuit court to
obtain jurisdiction in the absence of a bond. Id. at 323, 485
S.E.2d at 136. The Court cited Burks v. Three Hills
Corporation, 214 Va. 322, 323-24, 200 S.E.2d 521, 522 (1973),
for the proposition that an appeal bond in a deficient amount
could be cured. See Walker, 253 Va. at 323, 485 S.E.2d at 136.
In Burks, the Supreme Court stated “Code § 16.1-109 sets forth
procedures by which the trial court may require the appellant to
give new or additional security.” Burks, 214 Va. at 323, 200
S.E.2d at 522 (citations omitted).
We find that the provisions of Code § 16.1-109 are
applicable to this case. Erickson did not fail to file an
appeal bond. To the contrary, he filed his notice in the J & DR
court and was informed that his bond had been set “by the court”
at $500. This bond is grossly inadequate to satisfy the
requirements of Code § 16.1-296(H); however, the legislature has
provided a remedy in Code § 16.1-109 that states:
The court to which the appeal is taken may
on motion for good cause shown, after
reasonable notice to the appellant, require
the appellant to give new or additional
security, and if such security be not given
within the time prescribed by the appellate
court the appeal shall be dismissed with
costs, and the judgment or order of the
court from which the appeal was taken shall
remain in effect and the appellate court
shall award execution thereon, with costs,
against the appellant and his surety.
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The J & DR court abused its discretion when setting a bond
of $500 for an appeal of a judgment of arrearage of $18,975.
Similarly, the circuit court abused its discretion by denying
Smiley’s motion to require Erickson to provide new or additional
security in an amount sufficient to satisfy the judgment on
appeal.
III. UNENFORCEABILITY OF PURPORTED AGREEMENT
TO WAIVE ARREARAGES
We hold that Judge Foster erred in finding that the parties
entered into a valid and enforceable agreement to waive the
$17,775 arrearage owed by Erickson. In Goodpasture v.
Goodpasture, 7 Va. App. 55, 371 S.E.2d 845 (1988), the mother
appealed a determination of the amount of child support
arrearage. The evidence revealed that the mother had written a
letter telling the father that he could suspend payment of his
child support while she and the child lived out of the state.
In a contempt proceeding instituted against the father for
non-payment of arrearages, the mother argued that by giving the
father credits against support due while she was living out of
state, the trial court had retroactively modified the child
support award in violation of Code § 20-108. See id. at 57, 371
S.E.2d at 846. The husband argued that the child support
obligation was satisfied under the exception to the
non-retroactive modification rule created by the Court in Acree
v. Acree, 2 Va. App. 151, 342 S.E.2d 68 (1986). See id. at 59,
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371 S.E.2d at 847. In Acree, we recognized a narrowly tailored
exception to the rule that a child support order is
non-modifiable. Under the unique circumstances of Acree, where
the custodial parent relinquished custody of the child and
agreed to the elimination of further support, we found that the
agreement of the parties was enforceable. See id. at 59, 342
S.E.2d at 847. We found the Acree exception inapplicable to the
facts in Goodpasture. See id. at 59, 342 S.E.2d at 847. In
reversing the decision of the trial court, we held:
No support order may be retroactively
modified. Past due support installments
become vested as they accrue and are
thereafter immune from change. Parties
cannot contractually modify the terms of a
support order without the court’s approval.
Nor does a party’s passive acquiescence in
nonpayment of support operate to bar that
party from later seeking support arrearages.
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 84 (citations omitted).
IV. CONCLUSION
In this case, the J & DR court failed to set an adequate
appeal bond pursuant to Code § 16.1-296(H). We hold that Judge
Warren erred by entering a dismissal of the appeal in violation
of Rule 1:13. We hold that Judge Foster erred by failing to
require new or additional security pursuant to Code § 16.1-109
and erred in finding that an oral agreement of the parties
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regarding arrearages was enforceable. Because the dismissal of
the show cause proceeding for contempt was predicated upon the
erroneous finding that the oral agreement was enforceable, the
trial judge erred in dismissing the show cause for that reason.
We reverse and remand to the circuit court for proceedings
consistent with this opinion.
Reversed and remanded.
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