Shoup v. Shoup

BENTON, Judge,

dissenting.

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 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 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 “[incorporation 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). We have also held that the statute “does not mandate the court to incorporate the agreement in whole” but “expressly permit[s] [the court] to incorporate selected provisions of the agreement.” Rodriguez v. Rodriguez, 1 Va.App. 87, 90, 334 S.E.2d 595, 597 (1985). Moreover, pursuant to Code § 20-108, the divorce court retains its long recognized “continuing jurisdiction after a final decree of *359divorce has been entered, to modify its decree with respect to the ... maintenance of minor children.” Edwards 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 parties’ child support agreement, or provisions of it. Id.

By its express terms, part 5(d) of the parties’ agreement in this case obligates the husband to pay the undivided child support “until each child dies, marries,” or becomes ineligible through one of the cessation of support events specified in the agreement. (Emphasis added). The divorce decree “affirmed, ratified, and incorporated” the parties’ agreement and specifically ordered the husband to pay support in accordance with the agreement. The final decree specifically modified part 5(d), however. In particular, after decreeing that the parties’ agreement is “affirmed, ratified, and incorporated, but not merged, into this decree, in accordance with the provisions of ... Code § 20-109.1,” the final decree provides as follows:

(f) Child Support. [The husband] is ordered to pay [the wife] child support in accordance with all the terms, provisions and requirements of their June 27, 1994 Custody, Support and Property Settlement Agreement; and beginning on July 1, 1994, and on the first of every month thereafter, [the husband] shall pay the amount of $2,177.00 per month, as and for child support, to [the wife]. Child support shall continue until a minor child dies, marries, becomes emancipated, or reaches the age of eighteen years, whichever occurs first, or until further order of the court; provided, however, that if, at the date of his or her eighteenth birthday, a child: (i) is a full-time high school student, (ii) is not self-supporting, and (iii) is living in the home of the parent seeking or receiving child support, child support shall continue without abatement until the child reaches the age of nineteen years or graduates from high school, whichever first occurs.

(Emphasis added).

Thus, the decree incorporated the terms of the parties’ agreement regarding child support, but changed the language *360of part 5(d) providing for the event that triggers modification of child support. Instead of requiring the husband to pay the full undivided child support until the last child became ineligible through one of the specified cessation of support events, the final decree provided that the full, undivided child support shall be paid “until a minor child” became ineligible through one of the cessation of specified events. (Emphasis added). Thus, the language of the divorce decree modified the terms of the child support agreement and clarified the nature of the father’s support obligation. This modification is consistent with the parties’ agreement, which contains no indication that the parties intended to provide post-minority support for any child beyond the cessation events specified in part 5(d) of their agreement. In addition, part 5(e) of the agreement, which requires a modification of support upon a change in circumstances, manifests that the parties intended the result accomplished by the final decree’s modification. By otherwise incorporating the parties’ agreement, the final decree contemplated that the parties would abide by the agreement’s “terms, provisions and requirements,” except as modified by the final decree.

Significantly, the parties’ agreement established the initial amount of child support, which was adopted in the final decree, as “the sum calculated for child support as [is] required by Section 20-108.2 of the Code of Virginia ..., pursuant to the worksheet attached as Attachment A to this agreement.” The parties’ agreement required the parties to continue using that statutory guide for determining child support. In pertinent part, the agreement provides as follows:

[5(e) ] If there is any change in circumstances, the parties shall follow the child support guidelines contained in § 20-108.2 of the Code of Virginia or its successor statute and any other relevant Virginia statutes and case law for determination of child support.
^ ^ ^ ^
7. MODIFICATIONS IN CHILD SUPPORT PAYMENTS.
*361For so long as there is a support obligation under this Agreement, the Husband hereby agrees to furnish the Wife with a photocopy of his signed Federal income tax return and W 2 form(s) (as well as any other reporting of income to other governmental entities not recorded on the Federal income tax return) for future years on or before April 15 of each year commencing with April 15, 1995, so that she may be advised as to the status of his income from year to year. The Wife hereby agrees to furnish the Husband with a photocopy of her signed Federal income tax return and W 2 form(s) (as well as any other reporting of income to other governmental entities not recorded on the Federal income tax return) for future years on or before April 15 of each year commencing with April 15, 1995, so that he may be advised as to the status of her income from year to year.

The evidence proved that the husband paid child support in accordance with the agreement and as directed by the final decree. The husband made the modification in the child support payments contemporaneously with the changed circumstances. The wife makes no claim that the amount of the payments was not in accordance with the schedule in Code § 20-108.2. Thus, no issue of retroactive modification arises. The agreement and the final decree permitted the parties to make these adjustments without returning to court for approval before the change could be made.

In short, courts have the authority to order child support for the minor children of the parties, see Code § 20-107.2, and for children over the age of eighteen under limited circumstances, see Code § 20-124.2(C). The public policy of the Commonwealth clearly encourages parties to seek “agreement ... concerning the conditions of ... the care, custody and maintenance of their minor children.” Code § 20-109.1. Indeed, “[w]here the court affirms; ratifies and incorporates by reference in 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.” Code § 20-109.1. The majority opinion fails to give effect to these policies.

*362I believe the majority’s reliance on Kelley v. Kelley, 248 Va. 295, 449 S.E.2d 55 (1994); Keyser v. Keyser, 2 Va.App. 459, 345 S.E.2d 12 (1986); and Solomond v. Ball, 22 Va.App. 385, 470 S.E.2d 157 (1996), is misplaced. In those cases, the Courts addressed only the support of minor children whose rights a property settlement agreement may not alter. Here, the lowering of child support payments occurred only because of the emancipation of the children and was consistent with the guidelines. If the parties had returned to court on these occasions, the court would not have been able to fix support for the emancipated children because the parties’ agreement prohibited such support.

To the extent that the annotation, S.R. Shapiro, Propriety and Effect of Undivided Award for Support of More than One Person, 2 A.L.R.3d 596, § 5 (1965 & Supp.2000), bears on this issue, it cites cases for and against the proposition that one party may reduce pro rata an undivided “award” for support after a child becomes ineligible to receive further support. It appears that the only case cited in that annotation which addresses the effect of a separation agreement on the child support obligation is Hershey v. Hershey, 57 N.C.App. 692, 292 S.E.2d 141 (1982), which recognizes that “ ‘where parties to a separation agreement agree concerning the support and maintenance of their minor children, there is a presumption, in the absence of evidence to the contrary, that the provisions mutually agreed upon are just and reasonable, and the court is not warranted in ordering a change in the absence of any evidence of a change in conditions.’” Id. at 143 (citation omitted). The court ruled in Hershey that the father could not reduce child support payments pro rata because the agreement at issue there, unlike the agreement in this case, did not allow such changes. Id.

Although, as the majority notes, “the mother’s acquiescence in the reduction is irrelevant,” the evidence establishes she was at all times receiving precisely the child support she was entitled to receive pursuant to Code § 20-108.2 and consistent with the agreement. By waiting until the oldest two children were emancipated before filing her petition to hold the hus*363band in contempt, the mother seeks to have the proverbial cake and to eat it too. If she loses this legal gambit, she has received what she was entitled to receive; however, if she wins, she gets an undiluted windfall because the husband’s opportunity to seek modification has passed. I believe our decisions require that we hold her to the agreement that was incorporated and ordered in effect by the decree.

In unambiguous language, Code § 20-108.2 provides that “[t]here shall be a rebuttable presumption ... that the amount of the award which would result from the application of the guidelines set forth in this section is the correct amount of child support.” I believe that our cases do not bar the parties from agreeing to voluntarily modify their child support payments annually according to Code § 20-108.2, requesting a court to approve such an agreement, and being able to make modifications to the support payments according to their agreement when ordered to do so by the decree, which affirms, ratifies and incorporates by reference that agreement. Yet, it appears from the majority opinion that members of the Bar should be placed on notice that despite good faith efforts to resolve amicably the child support arrangements by agreements that incorporate the schedules of Code § 20-108.2, the parties have no safe harbor and can only protect themselves by filing in court a petition to seek modification for any change in circumstance that has been recognized and specifically identified in their court-approved agreement.

For these reasons, I dissent. I would reverse the judgment, which finds the husband in contempt, and reverse the finding of an arrearage and award of attorney fees.