Wilderman v. Wilderman

COURT OF APPEALS OF VIRGINIA

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

ELLYN GLASS WILDERMAN
OPINION BY
v. Record No. 2109-96-4 JUDGE ROSEMARIE ANNUNZIATA
SEPTEMBER 2, 1997
DAVID ALBERT WILDERMAN

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
Patrick J. Norman (P. Elizabeth Pirsch, on
brief), for appellant.

No brief or argument for appellee.

Wife, Ellyn Glass Wilderman, appeals the trial court's

finding of the amount of a child support arrearage owed by

husband, David Albert Wilderman. She contends the finding is

erroneous because it provided husband various credits against his

outstanding support obligation. For the reasons which follow, we

affirm in part and reverse in part.
I.

The parties separated in March 1994, and a custody and

support order with respect to their minor child was entered by

the J&DR court in July 1994. Child support was to be paid

through the Department of Social Services' Division of Child

Support Enforcement (DCSE). The record makes clear, however,

that neither party insisted that husband strictly meet his

support obligation through DCSE. Instead, evidence shows that

husband sought to satisfy his obligation in part through direct
payments to wife, through indirect payments to third party

vendors and by other non-conforming means. The evidence also

shows that wife, on at least two occasions, specifically

requested DCSE to credit husband's account in various amounts.

Eventually, a dispute arose concerning the amount of support

husband had paid. In July 1996, a hearing was held in circuit

court to determine, inter alia, the amount, if any, of husband's

support arrearage.
Dan Coler, a DCSE specialist, testified based on DCSE

records that husband owed a child support arrearage of

approximately $620. Neither party disputed at trial, nor does

husband dispute on appeal, that he owed at least that amount.

The dispute surrounds two credits against husband's support

obligation reflected in DCSE records in the amounts of $1,000 and

$6,121.19, respectively. Coler could offer no explanation for

the credits but testified that the adjustments to husband's

account did not represent payments made by husband to DCSE.

The credits existed on the DCSE records because wife wrote

to DCSE, specifically requesting that the record reflect them.

In December 1995, she wrote to DCSE:

Per our conversation in early December

regarding my case, you had indicated that

what [husband] owes is ultimately my

decision. Because he has shown good faith in

paying his support, and because he is seeking

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 a transaction which requires a credit check,

I would like to help him preserve his

otherwise good credit. This has been a very

confusing process with a lot of different

figures being quoted; in response to this, I

would like to simplify matters by erasing all

but $1000 in back child support from his

credit record. It is my understanding that

he currently owes, according to your

department, $3600. Please reduce this to

$1000, with my notarized approval, to be

reflected on his credit history report. . . .
In February 1996, wife wrote to DCSE:
It is my understanding that [husband]
currently owes arrerages [sic] in child
support . . . in the amount of $1400. This
letter is to request that $1000 be removed
from that total and credited to [him]. . . .

The parties dispute the consideration husband provided in

return for wife's requests that DCSE credit his account. Wife

acknowledged that the $6,121.19 credit resulted from her December

1995 request of DCSE to reduce husband's outstanding support

obligation to $1,000, although she contended she believed his

account balance was $3,600 at the time she made the request. She

testified that husband asked her to have the DCSE record reduced

to reflect an obligation of only $1,000 because he was having

difficulty obtaining credit. She stated that she agreed to help

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husband in return for his promise to repay her. Husband

testified that the $6,121.19 credit was given in consideration

for payments he had made in support of the parties' child for day

care, doctor visits, food and cash. Husband testified that he

paid wife approximately $2,500 directly and paid the remainder

through third parties. Wife testified, and her evidence

reflects, that husband paid her $1,252 directly. Those payments,

however, are not reflected in the DCSE report.
The parties do not dispute that the $1,000 credit was given

by wife in return for husband's agreement to repair her car; they

disagree, however, concerning husband's performance. Wife

alleged that husband failed to repair the car and returned it to

her in poor condition. Husband testified that he had completed

ninety percent of the repairs, work which he stated was worth

over $1,000, when wife, on the advice of her attorney, demanded

that he do no further work.

The trial court made the following finding:
On the arrearage, it seems to me that
the testimony of the parties is in direct
conflict and so I can't find that one party
really prevailed by a preponderance of the
evidence on these credits, so I'm forced to
then look as DCSE, who has an obligation, it
seems to me, to administer child support.

The J&DR Court obviously directed that
these payments be made there and DCSE says
the arrearages are 550 and some dollars, and
so when I look at the testimony I've heard, I
can't find that one side prevailed by a
preponderance of the evidence, I'm left with
the DCSE figure, it seems to me.

So I find that the arrearages are as

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 stated by DCSE.

The court's order reflected its finding, establishing an

arrearage of $620.89.

II.

As a general rule, the obligor spouse may not receive credit

for non-conforming child support payments. See Henderlite v.

Henderlite, 3 Va. App. 539, 542, 351 S.E.2d 913, 914 (1987). The

rule is intended to avoid "continuous trouble and turmoil," id.,

such as that brought upon by the parties' failure in the present

case to insist that support payments be made in compliance with

the support order. The general prohibition against credit for

non-conforming support payments will not be enforced, however,

where, under the circumstances of the case, equity dictates

otherwise. In short, contrary to wife's contention, the law

dictates no blanket prohibition against credits for

non-conforming child support payments. See Commonwealth v.

Skeens, 18 Va. App. 154, 442 S.E.2d 432 (1994); Acree v. Acree, 2

Va. App. 151, 342 S.E.2d 68 (1986).
Child support payments required under a
valid court order become vested as they
accrue, and the court is without authority
to make any change as to past due
installments. Generally, the 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. When changed circumstances dictate a
modification of a support decree, the
appropriate remedy is for the party to
petition the court to modify the decree. The
party or parties may not unilaterally or
bilaterally vary its terms.

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 However, although a court may not
retroactively modify a child support
obligation, allowing a payor spouse credit
for non-conforming support payments, in the
limited situations where permitted, is not a
modification of a support order. A court
may, when equitable and under limited
circumstances, allow a party credit for
non-conforming support payments, provided
that the non-conforming payment substantially
satisfies the purpose and function of the
support award and to do so does not vary the
support award.

Skeens, 18 Va. App. at 158, 442 S.E.2d at 434-35 (citations

omitted). Typically, two conditions must exist before credits

will be given for non-conforming payments: (1) an agreement by

the parties which modifies the terms or method of payment; and
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(2) no adverse affect on the support award.
Credit to an obligor spouse typically is not permitted where

that party has unilaterally modified the method or terms of

payment. See Buxbaum v. Buxbaum, 20 Va. App. 181, 185, 455

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An agreement which itself establishes or modifies the
support obligation, rather than only the terms or method of
payment, does not meet this test. Such agreements are not
enforceable absent court approval, because they impinge on the
child's right to support and the court's continuing jurisdiction
to decree it. See Kelley v. Kelley, 248 Va. 295, 298-99, 449
S.E.2d 55, 56-57 (1994) ("[P]arents cannot contract away their
children's rights to support nor can a court be precluded by
agreement from exercising its power to decree child support.");
Goodpasture v. Goodpasture, 7 Va. App. 55, 58, 371 S.E.2d 845,
847 (1988) ("[J]ust as a party cannot by contract or acquiescence
modify the terms of a support order, a party cannot by waiver
modify the terms of a support order."); Richardson v. Moore, 217
Va. 422, 423, 229 S.E.2d 864, 866 (1976) (regarding spousal
support award: Neither a wife's "active contractual consent" nor
her "passive acquiescence" excuses a husband's noncompliance with
a court's support decree) (citing Capell v. Capell, 164 Va. 45,
178 S.E. 894 (1935)).

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S.E.2d 752, 755 (1995) (husband receives no credit against future

spousal support obligation for additional payments made under

terms of child support agreement because no agreement between

parties to that effect); Sanford v. Sanford, 19 Va. App. 241,

248, 450 S.E.2d 185, 190 (1994) (husband receives no credit

against spousal support obligation for additional payments

because no agreement to that effect); Fearon v. Fearon, 207 Va.

927, 928-30, 154 S.E.2d 165, 165-67 (1967) (no evidence of

agreement to credit husband's child support obligation for

payments he made directly to child); Newton v. Newton, 202 Va.
515, 519, 118 S.E.2d 656, 659 (1961) (same). "Absent a specific,

mutual agreement by the parties, `[s]upport payments made by an

obligated spouse over and above court-ordered monthly support are

considered gifts or gratuities.'" Buxbaum, 20 Va. App. at 186,

455 S.E.2d at 755 (quoting Sanford, 19 Va. App. at 248, 450

S.E.2d at 190); see also Fearon, 207 Va. at 931, 154 S.E.2d at

168; Goodpasture, 7 Va. App. at 59, 371 S.E.2d at 847. To permit

a party to unilaterally modify the terms or methods of payment

"would lead to continuous trouble and turmoil." Newton, 202 Va.

at 519, 118 S.E.2d at 654.

However, modification of the terms or method of payment may

be upheld where it is accomplished by "unequivocal agreement" and

where it fulfills the purpose of the support decree. See Acree,

2 Va. App. at 155-57, 342 S.E.2d at 70-71. In Acree, the parties

agreed that the husband would assume custody of a child who had

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been in the wife's custody and for whom husband had paid support

to wife pursuant to a court order. Upon the transfer of custody,

the parties agreed that the husband would no longer pay the wife

support for that child, but would instead support the child

directly. Subsequently, the wife filed a motion for enforcement

of the child support decree, claiming an arrearage that accrued

during the years the child lived with the husband. We reversed

the trial court's decision ordering the husband to pay the

arrearage, stating:
We simply refuse to reward an individual who
seeks to take advantage of an agreement
entered into freely and voluntarily, after it
had been fully performed to her benefit.
. . . To enforce the letter of the decree
after its purpose has been served and the
parties' agreement fully performed would
unjustly enrich the wife and shock the
conscience of the average person. Most
important, failure to enforce the letter of
this decree under these circumstances will
not work to the detriment of the child, for
whose benefit the support was to be paid.
That agreement of the parties as carried out
worked to the benefit of the child to the
same degree that absolute conformity with the
terms of the decree would have.

Id. at 158, 342 S.E.2d at 72. Indeed, an "unequivocal agreement"

may not be necessary where non-conforming support payments

"substantially satisf[y] the purpose and function of the support

award . . . and [do] not vary the support award." Skeens, 18 Va.

App. at 158, 442 S.E.2d at 435 (granting credit against obligor's

child support arrearage for Social Security dependents' benefits

paid directly to children).

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 The decision whether to grant credit for non-conforming

support payments in consideration of the equities of a given

situation is committed to the discretion of the trial court. Id.

at 160, 442 S.E.2d at 436. That decision
should depend upon a number of factors,
including but not limited to the extent to
which the original support award was
sufficient or deficient in meeting the
child's needs, whether any modification of
the support award has been made . . . , or a
change in the child's needs, or the parents'
abilities to provide support . . . , and
whether both parents have acted in good
faith.

Id. Because the non-conforming method by which support was

provided in Acree and Skeens satisfied the purpose and function

of the respective support awards and did not vary them, the best

interests of the children were protected and the non-conforming

methods of payment were upheld.

In the present case, husband, the obligor, did not

unilaterally decide or attempt to alter the terms or method of

payment. Wife participated directly in the parties'

non-conforming response to the support decree. Accordingly,

under Acree and Skeens, the credits to husband must be evaluated
on a transaction-by-transaction basis, with consideration given

to the best interests of the child. Whether husband is entitled

to have his support arrearage credited depends on whether the

non-conforming support payments substantially satisfied the

purpose and function of the support award. Pursuant to that

analysis, the consideration husband gave for the credits is of

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paramount importance. Husband bore the burden of proving that

this was one of the "limited circumstances" in which he, the

obligor spouse, was entitled to a credit for non-conforming

support payments. See Skeens, 18 Va. App. at 158-60, 442 S.E.2d

at 435-36; Acree, 2 Va. App. at 157-58, 342 S.E.2d at 171-72.

On the issue of consideration, the trial court's finding

does not provide sufficient support for its order establishing an

arrearage of only $620.89. The $620.89 amount, as reflected in

the DCSE records, accounts for the credits at issue in this case.

The court found, however, that neither party met its burden.

Specifically, the court found that husband failed to prove he had

provided consideration for the credits. Based on that finding,

which will not be disturbed here, e.g., Pommerenke v. Pommerenke,
7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988), husband's

support arrearage should not have been offset by the amount of

the credits. The trial court's arrearage determination, however,

based on the DCSE records, effectively provided husband the full

benefit of the credits. This was error. The DCSE records

contain no information regarding what, if any, consideration

husband provided for the credits he was given. While the DCSE

records account for the credits and establish that they were in

fact given, they do not evidence in any respect whether husband's

non-conforming method of providing child support furthered the

best interests of the child by substantially satisfying the

purpose and function of the support award. Thus, the trial

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court's reliance on the DCSE records for proof of the requisite

consideration in support of the credits sought was misplaced.

Since it was not disputed that wife received $1,252 in child

support payments directly from husband, however, husband was

properly credited that amount. Accordingly, the trial court's

decision is affirmed in part and reversed in part.

Affirmed in part, and reversed in part.

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Benton, J., concurring and dissenting.

Because the evidence in the record supports the trial

judge's decision, I would affirm the judgment setting the

arrearage at $620.89.

Recently, this Court clearly stated the following:
[A]llowing a payor spouse credit for
non-conforming support payments, in the
limited situations where permitted, is not a
modification of a support order. A court
may, when equitable and under limited
circumstances, allow a party credit for
non-conforming support payments, provided
that the non-conforming payment substantially
satisfies the purpose and function of the
support award and to do so does not vary the
support award.

Commonwealth v. Skeens, 18 Va. App. 154, 158, 442 S.E.2d 432, 435

(1994) (citations omitted). In applying these principles on

appeal, we view the evidence in the light most favorable to the

prevailing party, granting to that evidence all reasonable

inferences properly deducible therefrom. See Martin v.

Pittsylvania County Dep't of Soc. Servs., 3 Va. App. 15, 20, 348

S.E.2d 13, 16 (1986).

The wife acknowledged in her testimony that she requested

the Division of Child Support Enforcement (DCSE) to credit the

husband's outstanding support obligation in the amounts of

$6,121.19 and $1,000, respectively. The wife made those requests

because of agreements the wife and the husband made regarding the

husband's payment of child related expenses and performance of

work on the wife's automobile, all of which benefitted the child.

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The husband testified that he had fully performed those

obligations except for the repair of the automobile. He

testified that he had performed ninety percent of the repairs on

the automobile when wife's counsel caused the repairs to cease.

The wife testified that the husband had only partially performed

the obligations.

Finding a conflict in the testimony of the husband and the

wife concerning the "evidence on these credits," the trial judge

considered as evidence the DCSE reports. The majority asserts

that the trial judge specifically found that the "husband failed

to prove he had provided consideration for the credits" and that

the trial judge erred in relying on the DCSE records as evidence

of consideration. I disagree with the majority's

characterization of the trial judge's findings. The trial judge

stated the following:
On the arrearage, it seems to me that the
testimony of the parties is in direct
conflict and so I can't find that one party
really prevailed by a preponderance of the
evidence on these credits, so I'm forced to
then look at DCSE, who has an obligation, it
seems to me, to administer child support.

The J&DR Court obviously directed that
these payments be made there and DCSE says
the arrearages are 550 and some dollars, and
so when I look at the testimony I've heard, I
can't find that one side prevailed by a
preponderance of the evidence, I'm left with
the DCSE figure, it seems to me.

So I find that the arrearages are as
stated by DCSE.

Because the DCSE records were relevant to a determination of the

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arrearages due, I would hold that the trial judge did not err in

considering them in rendering his decision.

The DCSE records proved that in December 1995 the wife

requested DCSE to grant the first credit of $6,121.19. Two

months later, the wife requested DCSE to grant the credit of

$1,000. The trial judge could have concluded from the sequence

of credits that when the wife notified DCSE to give the second

credit, the wife was satisfied that the husband had performed his

obligations relating to the December credit of $6,121.19.
As to the $1,000 credit, the wife and husband agree that it

was for car repairs. The husband testified that the repairs were

ninety percent complete and he detailed the mechanical repairs he

had made. The wife testified that she gave the car to the

husband for repairs and that the repairs were not completed to

her satisfaction. She did not dispute the husband's testimony

that he replaced the timing belt, balanced and rotated the tires,

repaired the brakes, tuned the engine, and changed the oil. More

significant, the DCSE records do not reflect that the wife ever

disputed the $1,000 credit or sought to have DCSE remove the

credit.

Based upon the ore tenus evidence and the exhibits presented

at the hearing, the trial judge found that the arrearage was

precisely the amount shown on the DCSE records. Because the

evidence supports that finding, we are required to affirm the

decision. See Martin, 3 Va. App. at 20, 348 S.E.2d at 16.

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