Moreno v. Moreno

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia

FELIX ASCHER MORENO
OPINION BY
v. Record No. 1643-96-4 CHIEF JUDGE NORMAN K. MOON
FEBRUARY 18, 1997
BARBARA J. MORENO

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James H. Chamblin, Judge
Richard P. Buzan (Kellogg, Krebs & Moran, on
briefs), for appellant.

Walter C. Jacob (Walter C. Jacob, P.C., on
brief), for appellee.

Felix A. Moreno (husband) appeals the trial court's finding

of contempt for husband's failure to pay child support. Husband

raises the following questions: 1) did the trial court's denial

of husband's motion to dismiss the court's show cause order for

failure to pay child support constitute a final appealable

decree; 2) was the trial court's final decree of divorce,

incorporating the parties' property settlement agreement

including child support payments approximately twice the amount

required by statute, void; and 3) did the trial court err in

finding husband in contempt for failure to pay child support

pursuant to the final decree of divorce. We find that the trial

court's denial of husband's motion to dismiss the show cause

order was not an immediately appealable order. We further find

that the trial court's final decree of divorce was not void and

that the court was not obligated to make a determination of the
presumptive amount of child support under the statutory

guidelines where the parties had agreed to the amount of support

and did not seek the court's determination of the matter.

Accordingly, we affirm.

On July 20, 1993, a decree of divorce was entered which

incorporated the parties' property settlement agreement. The

property settlement agreement provided that husband would pay

child support to Barbara J. Moreno (wife) for the parties' two

children in the amount of $1,800 monthly. No exceptions were

noted to the decree, and no appeal was taken. Notice of the

decree being presented for entry was not given to husband

pursuant to a waiver of notice executed by husband on May 28,

1993.
At wife's request, on July 17, 1995, a show cause order was

entered against husband for his failure to pay child support.

Husband moved to dismiss the show cause order arguing that the

underlying decree of divorce was void because the award of child

support did not comply with the provisions of Code §§ 20-108.1

and 20-108.2. Husband asserted that the court's final decree of

divorce was void because the divorce decree made no reference to

the presumptive child support guidelines and because the trial

court failed to make written findings that application of the

presumptive child support guidelines would be unjust or

inappropriate. A decree denying husband's motion was entered

November 6, 1995. Subsequent to trial on the issues relating to

the show cause order, the trial court issued a letter opinion,

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dated December 4, 1995, finding husband in contempt for failure

to pay child support in accordance with the provisions of the

final decree of divorce.

Timely Appeal

Wife asserts that husband failed to timely appeal the trial

court's November 6, 1995 denial of husband's motion to dismiss

the show cause order.

This Court
has appellate jurisdiction over final decrees
of a circuit court in domestic relations
matters arising under Titles 16.1 or 20, and
any interlocutory decree or order involving
the granting, dissolving, or denying of an
injunction or "adjudicating the principles of
a cause." Code §§ 17-116.05(3)(f) and (4).
A final decree is one "`which disposes of the
whole subject, gives all the relief that is
contemplated, and leaves nothing to be done
by the court.'"

Erikson v. Erikson, 19 Va. App. 389, 390, 451 S.E.2d 711, 712

(1994) (citations omitted). The trial court's denial of

husband's motion to dismiss the show cause order did not

constitute a final decree because it did not dispose of the whole

subject and leave nothing to be done by the court. See id. To

the contrary, the trial court had to proceed with the show cause

hearing. Nor was the court's order an interlocutory decree

granting an injunction. Accordingly, unless the trial court's

denial of husband's motion constituted an interlocutory decree

that "adjudicate[d] the principles of the cause," this Court does

not have jurisdiction to consider an appeal of the denial.

An interlocutory decree adjudicates the principles of a

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cause where "`the rules or methods by which the rights of the

parties are to be finally worked out have been so far determined

that it is only necessary to apply those rules or methods to the

facts of the case in order to ascertain the relative rights of

the parties, with regard to the subject matter of the suit.'"

Pinkard v. Pinkard, 12 Va. App. 848, 851, 407 S.E.2d 339, 341

(1991) (quoting Lee v. Lee, 142 Va. 244, 252-53, 128 S.E. 524,

527 (1925)). The trial court's denial of husband's motion to

dismiss the show cause order did not adjudicate the principles of

the cause. The denial of the motion did not determine whether

husband had cause for failing to pay his child support or what

terms the court would impose for such failure. Further, the show

cause order required husband to show cause why he should not be

held in contempt for violation of provisions of the final decree

of divorce pertaining not only to child support but payment of

unreimbursed medical expenses, use of the parties' joint credit

lines, and adjustment of life insurance benefits. The court's

denial of husband's motion to dismiss did not address these

matters as well.
Because the trial court's denial of husband's motion to

dismiss did not adjudicate the principles of the cause, husband

was without obligation or ability to appeal the court's denial.

Accordingly, we find husband's appeal timely made.

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 Child Support

Husband argues that the trial court's decree of divorce was

void because the court incorporated in the decree the parties'

property settlement agreement containing a child support

obligation approximately twice the amount required by statute.

Husband asserts that the trial court erred in not determining

child support in accordance with Code §§ 20-108.1 and 20-108.2 or

by failing to provide written findings that application of the

presumptive child support guidelines would be unjust or

inappropriate.
In relevant part, Code § 20-108.1 provides that "[i]n any

proceeding on the issue of determining child support . . . the

court shall consider all evidence presented relative to any

issues joined in that proceeding." (Emphasis added.) Code

§ 20-108.2 provides that "[t]here shall be a rebuttable

presumption in any judicial or administrative proceeding for

child support under this Title or Title 16.1 or 63.1 . . . that

the amount of the award which would result from application of

the guidelines . . . is the correct amount of child support

. . . ." Although both code sections serve to provide a

rebuttable presumption of the amount of child support to be paid,

a trial judge may determine that the contractual amount of child

support is fair and equitable without requiring evidence and

without determining the precise presumptive amount of support.

Where, as here, the trial judge can determine that the amount of

agreed child support is fair and equitable insofar as the child's
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best interest is concerned, the court may approve the agreement

and deviate from the guidelines. Neither parent will be heard to

complain that an agreed amount of child support exceeds the

presumptive amount under the guidelines and should be set aside

in the absence of fraud, coercion, or overreaching. The cases

relied on by husband involved instances where child support was

in dispute or where a party had specifically requested the court

determine support. Such was the case in Scott v. Scott, where we

found that "[a]s of the hearing date . . . no child support award
was in effect and none had previously been entered. Since the

[trial] court was setting child support for the first time, the

hearing was an initial child support hearing and the trial court

erred in considering only those factors relevant to a change in

circumstances." 12 Va. App. 1245, 1247, 408 S.E.2d 579, 581

(1991) (emphasis added.)

Here, the trial court incorporated into its final decree of

divorce the parties' property settlement agreement which

specifically provided for child support. Prior to the decree of

divorce, husband voluntarily executed a waiver of notice.

Unlike the circumstances in Scott, at no time did husband object
to the decree provisions as they pertained to child support nor

did he request that an amount of child support different from

that provided for in the property settlement agreement be

entered. Further, at no time prior to husband's motion to

dismiss the show cause order was the amount of child support ever

disputed or in any way questioned.

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 In Spagnolo v. Spagnolo, we held that:
a trial judge is not required to accept or
adopt an agreement made by the parents
regarding child support if the amount of
child support is in dispute. . . . "[I]f the
amount of child support is in dispute, in
spite of a prior agreement, the trial court
must address `the issue of determining child
support.'"

20 Va. App. 736, 743-44, 460 S.E.2d 616, 619 (1995) (citations

omitted) (emphasis added). Accordingly, if the husband or wife

had disputed the amount of child support, despite the parties'

property settlement agreement, the court would have been required

to apply the guidelines in determining support. However, as the

parties did not dispute support, we find that the trial court did

not err in accepting the parties' mutually agreed upon child

support provisions. We are aware of neither holding nor statute

that requires a trial court to hear evidence on the matter of

child support where the parties have agreed to the amount of

support and do not seek the court's determination of the matter.

Further, we concur with the trial court's finding that the

resources of both the court and the parties would be wasted by

requiring a trial judge to sua sponte require parties to litigate
a settled matter.

We also note that assuming, arguendo, that husband or wife

had disputed the amount of child support, the trial court, once

it had determined the presumptive amount of child support, could

have deviated from that amount if such deviation was justified by

the Code §§ 20-108.1 and 20-108.2 factors. Because these factors

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may be reflected in the property settlement agreement, the

agreement may therefore be the basis for deviating from the

guidelines. See id. at 744, 460 S.E.2d at 619.

Contempt

Finding the divorce decree was not void and that the record

contains sufficient evidence to support the trial court's finding

of contempt, we hold the trial court did not err in holding

husband in contempt.
Affirmed.

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