COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Elder
Argued at Alexandria, Virginia
LAURA B. CARVER
MEMORANDUM OPINION * BY
v. Record No. 2189-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 5, 1998
DONALD LEE CARVER, JR.
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
James L. Berry, Judge
E. Eugene Gunter for appellant.
No brief or argument for appellee.
Laura B. Carver (mother) appeals the trial court's order
requiring that she reimburse child support payments Donald Lee
Carver, Jr. (father) paid to her for a time period when he had
physical custody of the child. She contends the effective result
of the order is a retroactive termination of father's support
obligation that is contrary to the requirements of Code § 20-108.
Finding no error, we affirm.
I.
Father and mother were married June 28, 1980, and one child
was born of the marriage on May 10, 1981. The parties were
divorced November 19, 1992. The divorce decree granted sole
custody to mother and ordered father to pay $100 per week in
child support commencing October 9, 1992. In June 1995, by
mutual agreement, the child began living with father, and he
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
stopped paying child support at that time. Father testified that
when the parties met on June 18, 1995 to transfer physical
custody, they discussed support but executed no written
agreement. The essence of the conversation was that mother
"would pay what she could - Thirty Dollars ($30.00) or so per
week."
Father took no action to legally modify the terms of the
divorce decree until October 11, 1996, when he filed a petition
to change the existing court order in the Frederick County
Juvenile and Domestic Relations District Court (JDR court).
Notice of the petition for modification was provided to mother on
October 16, 1996. In his petition, father asserted that the
child had adjusted well to the current living situation with him
in Winchester and that he wanted custody changed to avoid the
anxiety associated with mother's threat to remove the child from
father's home without warning. By order entered March 6, 1997,
the JDR court ordered joint legal custody, awarded physical
custody to father, and terminated father's support obligation as
of July 1, 1995. Mother appealed the JDR court's termination of
father's support obligation.
On appeal, the trial court found that the JDR court order
was a modification order under Code § 20-108 which could not
terminate father's support obligation retroactively.
Consequently, the trial court found that father was required to
have made the child support payments of $100 per week for the
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period from July 1, 1995, when he ceased making payments, through
October 16, 1996, when mother was notified of the pending
modification petition. However, "as a matter of equity" the
trial court ordered mother to "pay the child support payments for
the period indicated back to [father] on the basis that he was
the physical custodian of the child during the said period."
Mother's motions to reconsider and suspend the final decree were
denied. 1
II.
Mother contends the trial court's order that she reimburse
the accrued child support payments was a "back door" attempt to
relieve father of his delinquency status. She argues that, as a
matter of law, the trial court was without the authority to
terminate father's support obligations prior to October 16, 1996,
the date mother was notified of the petition for modification.
Code § 20-108 provides, in part:
No support order may be retroactively
modified, but may be modified 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.
"Past due support installments become vested as they accrue and
are thereafter immune from change. Parties cannot contractually
1
After Judge Berry heard the trial, he was succeeded by
Judge John R. Prosser, who entered the order embodying Judge
Berry's decision. Judge Prosser subsequently denied mother's
motion to reconsider on the grounds that he "would not reconsider
a decision made by his predecessor Judge."
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modify the terms of a support order without the court's
approval." Goodpasture v. Goodpasture, 7 Va. App. 55, 58, 371
S.E.2d 845, 847 (1988). "Should circumstances change requiring
alteration in the amount of support, a party's remedy is to apply
to the court for relief." Id. (citing Newton v. Newton, 202 Va.
515, 519, 118 S.E.2d 656, 659 (1961)). A court may not
retroactively modify a child support obligation. See Code
§ 20-108; Wilderman v. Wilderman, 25 Va. App. 500, 489 S.E.2d 701
(1997).
However, in Acree v. Acree, 2 Va. App. 151, 342 S.E.2d 68
(1986), this Court created an "exception to the general rule of
nonretroactive modification." Goodpasture, 7 Va. App. at 59, 371
S.E.2d at 847. This case is analogous to the situation in Acree
and is controlled by this rationale.
The cases that apply a seemingly inflexible
rule denying credit for nonconforming support
payments involve expenditures made during
short visits or vacations, gifts, clothing,
or direct payments in cash to the child,
payments to an educational institution for
the child's benefit, and overpayments made to
the wife. The rationale for denying relief
under those circumstances has been the
avoidance of continuous trouble and turmoil.
In each of the instances cited, to grant
relief would result in some detriment to the
custodial parent and child for whose benefit
the support was to be paid.
Acree, 2 Va. App. at 157, 342 S.E.2d at 71. Upon finding that
the father's "undisputed agreement with his wife, whereby he
assumed permanent custody and total responsibility for the
support of [the child], had the effect of fully satisfying his
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support obligation under the divorce decree," id. at 156, 342
S.E.2d at 70, this Court held that
[t]o 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. The 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.
As a result, and contrary to wife's contention,
[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). The trial court has "discretion to grant credit, in
whole or in part, or to deny credit against an arrearage,
depending upon the circumstances" and in light of "the equities
of a given situation." Id. at 160, 442 S.E.2d at 436.
In the instant case, while mother disputes the existence of
an agreement for a permanent change, the parties fully complied
with the change in physical custody for the time at issue - a
period at the time of the hearing in excess of fifteen months.
The resulting arrangement, that father "assum[ed] physical
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custody and total responsibility for the support of the child,"
fulfilled his obligation under the decree. Acree, 2 Va. App. at
158, 342 S.E.2d at 72. Thus the trial court had discretion to
exercise its equity power and to credit father for his
nonconforming payments. The court ordered father to pay support
and ordered mother to pay it back, an implicit means of crediting
father for his expenditures in support of the child in his
custody. These orders achieved a result that was within the
court's discretionary use of its equity power.
Finding no error, we affirm.
Affirmed.
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