Cutshaw v. Cutshaw, 780070
| Decision Date | 28 December 1979 |
| Docket Number | No. 780070,780070 |
| Citation | 261 S.E.2d 52,220 Va. 638 |
| Parties | David Clark CUTSHAW v. Elena Ray CUTSHAW et al. Record |
| Court | Virginia Supreme Court |
Charles B. Flannagan, II, Bristol (Woodward, Miles & Flannagan, Bristol, on brief), for appellant.
David H. Frackelton, Bristol (Widener & Frackelton, Bristol, on brief), for appellee.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
In this appeal, the question presented is whether the divorce court retained jurisdiction, after a child attained majority, to enforce a court order entered during the infancy of the child modifying a child support agreement incorporated into the decree of divorce.
The facts are not in dispute. Elena Ray Cutshaw was granted a divorce from David Clark Cutshaw by decree dated December 22, 1970, that affirmed, ratified and incorporated therein a separation agreement concluded by the parties. The agreement required Cutshaw to pay $25 per week for the support of his two children "until modified by a court of competent jurisdiction or until such time as the last of the two children leaves the home provided by (Elena), or until the last of said children shall complete his or her education through the undergraduate level whichever first occurs". The couple had two children at the time of their divorce, David Randall, then age 18, and Robin Kirby, then age 12.
On March 27, 1974, the chancellor increased Cutshaw's weekly support obligation to $50, and this amount was provided only for the benefit of Robin Kirby, who was then age 16. The following September, Cutshaw petitioned the court for a reduction in the amount of support payments. In his letter opinion of September 19, 1974, the chancellor "conclude(d) that it would be equitable . . . to reduce the weekly payments to $35 a week for the support, education, and maintenance of the youngest son". The chancellor also requested counsel to prepare a decree reflecting his decision, but no decree was entered.
Robin Kirby became eighteen years of age on March 26, 1976. Almost a year later, on February 25, 1977, Elena petitioned the court for general relief, alleging that Cutshaw was in arrears in his child support payments. Although no responsive pleading was filed, the chancellor stated in his letter opinion of March 9, 1977, that Cutshaw had defended on the ground that the court did not have jurisdiction since both children had attained majority. In the decree entered on March 30, 1977, over Cutshaw's objection, the chancellor noted the absence of a decree implementing the September 19, 1974 decision and entered an order Nunc pro tunc as of September 11, 1974, reducing his weekly support payments to $35 from the $50 obligation payable under the March 27, 1974 decree. The decree provided that the $35 payment should continue to be made "in conformity with the prior opinions of this Court".
In July, 1977, Elena again petitioned the court for relief, alleging that Cutshaw had not complied with the March 30, 1977 decree, and that he had become a resident of Tennessee. After conducting an Ore tenus hearing, the chancellor found that Cutshaw had not met his obligation to pay $35 per week in child support. By decree entered October 12, 1977, he awarded Elena judgment against Cutshaw in the sum of $945, the amount of arrearages, and ordered Cutshaw to keep the weekly payments current. Cutshaw has appealed from this decree.
A divorce court has continuing jurisdiction during a child's infancy to provide for his support and...
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