Adcock v. Commonwealth Of Va.

Citation693 S.E.2d 757,56 Va.App. 334
Decision Date08 June 2010
Docket NumberRecord No. 1681-09-4.
PartiesEdward W. ADCOCKv.COMMONWEALTH of Virginia, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT ex rel. Mildred A. HOUCHENS.
CourtCourt of Appeals of Virginia

Michael W. Smith (R. Braxton Hill, IV; W. Scott Street, III; A. Peter Brodell; Christian & Barton, L.L.P.; Williams Mullen, P.C., on briefs), Richmond, for appellant.

Gary P. Webb, Special Counsel (William C. Mims, Attorney General; Craig M. Burshem, Senior Assistant Attorney General; Beth J. Edwards, Regional Senior Assistant Attorney General; Nancy J. Crawford, Regional Senior Assistant Attorney General; Janice W. McDaniel, Assistant Attorney General, on brief), for appellee.

Present: ELDER and FRANK, JJ., and COLEMAN, Senior Judge.

FRANK, Judge.

Edward W. Adcock, appellant, appeals an order entered July 8, 2009, denying his statute of limitations defense and awarding a judgment in favor of Mildred A. Houchens, appellee,1 in the amount of $73,629.10 2 principal and interest. On appeal, Adcock contends the trial court erred in ruling the statute of limitations did not bar the recovery of past due child support payments nor accrued interest. For the reasons stated, we affirm the trial court.

BACKGROUND

The facts relevant to this analysis are uncontested. The parties were divorced by decree of the Corporation Court of the City of Alexandria on October 20, 1966. In that decree, appellant was ordered to pay $30 per week child support for three minor children. Child support would continue “until all such children attain their majorities or became otherwise emancipated or further decree of this court.” Appellant's child support obligation terminated on June 24, 1982, when the youngest child attained his majority.

On June 14, 2006, appellee applied for the services of the Division of Child Support Enforcement (hereafter DCSE) to enforce the October 20, 1966 child support order. DCSE, by motion filed July 7, 2008, moved the circuit court to establish arrearage and interest for unpaid child support.

Appellant filed a motion for summary judgment on February 20, 2009, arguing the statute of limitations barred recovery. After hearing evidence and argument, the trial court denied appellant's motion for summary judgment and entered judgment against appellant for $73,629.10, finding the twenty-year statute of limitations did not bar enforcement of the 1966 child support order.

This appeal follows.

ANALYSIS

Appellant contends the twenty-year statute of limitations set forth in Code § 8.01-251 3 bars appellee's enforcement of the 1966 child support order. Appellee argues the twenty-year limitation only applies to a liquidated money judgment, not, as here, to an unliquidated ongoing support obligation.4

Appellant notes that Code § 16.1-278.15(c) provides:

In any determination of support obligation under this section, the support obligation as it becomes due and unpaid creates a judgment by operation of law. Such judgment becomes a lien against real estate only when docketed in the county or city where such real estate is located. Nothing herein shall be construed to alter or amend the process of attachment of any lien on personal property.

Appellant therefore concludes that because the child support order is a judgment, the twenty-year statute of limitations of Code § 8.01-251(A) bars enforcement of the 1966 child support order. He contends the twenty-year period began to run on June 24, 1982, when his youngest child reached the age of majority and his child support obligation ended.

“In determining whether the trial court made an error of law, we review the trial court's statutory interpretations and legal conclusions de novo. Rollins v. Commonwealth, 37 Va.App. 73, 79, 554 S.E.2d 99, 102 (2001) (quoting Timbers v. Commonwealth, 28 Va.App. 187, 193, 503 S.E.2d 233, 236 (1998)).

Our inquiry, then, is whether the twenty-year statute of limitations of Code § 8.01-251(A) applies to an unliquidated, ongoing child support order, such as we have here, or if the statute is limited to a liquidated money judgment. Appellant contends there is no distinction for the purpose of Code § 8.01-251(A).5

Appellee argues Bennett v. Commonwealth, Dep't of Social Services, 15 Va.App. 135, 422 S.E.2d 458 (1992), controls. We agree.

In Bennett, we held the limitations under Code § 8.01-252 6 did not apply to the enforcement of a New Jersey spousal support order under Code § 20-88.20 of the Uniform Reciprocal Enforcement of Support Act (URESA).7 15 Va.App. at 147, 422 S.E.2d at 465. The New Jersey order was an ongoing, unliquidated support obligation. Id.

We noted the distinction between “support orders that adjudicate an ongoing, unliquidated spousal support obligation and those that adjudicate a sum certain or liquidated amount due and owing for spousal support.” Id. at 140, 422 S.E.2d at 461. We further noted the distinction between a “support order,” a “judgment,” and a “money judgment” in a statute of limitations context. Id. at 142, 422 S.E.2d at 462. We concluded that the statute of limitations in Code § 8.01-252 (now § 8.01-251) applies only to a “judgment for a sum certain or liquidated amount for spousal support rendered in another state.” Id. If, however, the ongoing unliquidated foreign support order was reduced to a liquidated amount in Virginia then the statute of limitations in Code § 8.01-251 would govern. Id. at 147, 422 S.E.2d at 465.

Bennett made it abundantly clear that “no time limitation is placed upon the obligee spouse within which to obtain a judgment for accumulated arrearages.” Id. at 144, 422 S.E.2d at 463. In fact, we stated “an obligee spouse under a Virginia spousal support order may delay for years without limit before seeking a judgment for arrearages accumulated under that order.” Id.

Appellant argues the Bennett analysis, addressing the difference between an unliquidated support order and a liquidated money judgment, is dicta. We disagree. Rather, this distinction is essential to the central ratio decidendi of the opinion. See Deiter v. Commonwealth, 205 Va. 771, 775, 139 S.E.2d 788, 791 (1965) (noting that dicta is language that is “not responsive to the question presented and ... not necessary to a disposition of the case). Indeed, without the distinction between unliquidated and liquidated support judgments, this Court could not decide the applicability of the statute of limitations. Therefore, it is not dicta.

Appellant further attacks Bennett, contending we misapplied Taylor v. Taylor, 14 Va.App. 642, 418 S.E.2d 900 (1992). Specifically, appellant points to language in Bennett that characterized the D.C. support order in the Taylor case as a “liquidated” support order. Taylor found that laches barred appellant's claim for support arrearages. 14 Va.App. at 648, 418 S.E.2d at 903. After discussing whether the Code § 8.01-252 statute of limitations barred enforcement of the foreign support order, this Court in Taylor concluded that the applicability of the statute of limitations is “mooted by the trial court's invocation of the doctrine of laches ... a ruling we uphold.” Id. at 648-49, 418 S.E.2d at 904. Clearly, any analysis of the applicability of Code § 8.01-252 in Taylor is pure dicta. Thus, it is irrelevant in the Bennett analysis whether the D.C. support order was liquidated or unliquidated. The Bennett analysis of the statute of limitations is not based on Taylor.

We also disagree with appellant's further efforts to distinguish Bennett. He posits that Bennett is based on New Jersey law, which provides that support payments do not vest and are subject to retroactive modification, unlike Virginia law. He also argues Bennett is limited to the enforcement of foreign judgments.

The fact that New Jersey law may not vest support payments is unrelated to the Bennett analysis. It has no bearing on whether the support order is liquidated or unliquidated. The fact that in New Jersey a support order or arrearage may be modified does not alter the Bennett analysis. Appellant's argument is premised on the fact that the Bennett Court considered the New Jersey law on non-vesting. However, a review of Bennett refutes this premise. Bennett does not mention the New Jersey law of non-vesting. Thus, it could not have been a consideration in the Bennett analysis.

Further Bennett has a much wider scope than appellant suggests. While the issue before us in Bennett was whether the ten-year statute of limitations (now twenty-year) of Code § 8.01-252 barred the enforcement in Virginia of a New Jersey support order under URESA, the analysis and decision have broader implications.

The discussion of the liquidated and unliquidated judgment, while in a URESA context, was not limited to a URESA proceeding. Bennett addressed the nature of Virginia spousal support orders. This Court acknowledged that the initial entry of a spousal support order “establishes the monetary amount of an ongoing support obligation. It is in that sense an order requiring the payment of money and is a judgment embraced within the provisions of Code § 8.01-426.” Bennett, 15 Va.App. at 141, 422 S.E.2d at 462.

However, we opined an ongoing support order “is not, and cannot be, a judgment for a sum certain or liquidated amount of money. Time and circumstances of the parties will determine ultimately the total amount to be paid under an initial, or subsequently modified, spousal support order.” Id. Thus, our analysis of the distinction between an ongoing, unliquidated support order and a liquidated money judgment under Virginia law transcends a URESA proceeding.

Appellant contends a support judgment does not have to be reduced to a liquidated amount for enforcement procedures to be initiated. Appellant refers to DCSE's collection of $6,507.57 in arrearage prior to the entry of the liquidated judgment.8 Thus, reasons appellant, an ongoing unliquidated support order is enforceable upon entry of that order. We...

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2 cases
  • Adcock v. Commonwealth
    • United States
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    • 4 Noviembre 2011
    ...Adcock appealed to the Court of Appeals, and a divided panel affirmed the circuit court's determination. Adcock v. Dept. of Soc. Servs., 56 Va.App. 334, 693 S.E.2d 757 (2010). Adcock appeals. Analysis Adcock contends that the 20–year statute of limitations set forth in Code § 8.01–251(A) ba......
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