David L. Host v. Winfrey R. Host
| Decision Date | 09 February 2016 |
| Docket Number | Record No. 2134-14-4 |
| Parties | DAVID L. HOST v. WINFREY R. HOST |
| Court | Virginia Court of Appeals |
UNPUBLISHED
Present: Judges Humphreys, Russell and AtLee
Argued at Richmond, Virginia
UPON A REHEARING
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Peter M. Fitzner (Matthews, Snider & Fitzner, on briefs), for appellant.
(Kenneth L. Crosson, on brief), for appellee.
David L. Host ("father") appealed to this Court from orders of the trial court involving the construction and enforcement of support provisions contained in the parties' final decree of divorce. Specifically, he argued the circuit court erred in finding he was not entitled to a credit against his monthly support obligations for payments that his father, James Host, made in excess of the amount of ordered monthly child support and further erred in its subsequent rulings regarding attorneys' fees and support arrearages. By memorandum opinion issued on November 3, 2015, we affirmed the circuit court on these issues and awarded Winfrey R. Kirkpatrick f/k/a Winfrey Host ("mother") the reasonable attorneys' fees she incurred in the course of the appeal. See Host v. Host, Record No. 2134-14-4, 2015 Va. App. LEXIS 314 (Va. Ct. App. Nov. 3, 2015). Prior to the issuance of the mandate, father timely filed a petition for rehearing, arguingthat, although he had not presented such a claim "in the instant appeal prior to" the petition for rehearing, the child support provisions of the divorce decree were void ab initio. Father argues that, because the child support provision is void, the circuit court erred in its determinations regarding his support obligation, arrearages, and attorneys' fees. For the reasons that follow, we agree with father that the child support provision is void. Accordingly, we vacate our prior opinion in this matter, reverse the decision of the circuit court, and remand the case to the circuit court for further proceedings.
BACKGROUND
Father and mother were married in 1994 and were divorced by final decree dated April 30, 2012. Three children, all of whom remain minors, were born of the marriage: a son and two daughters. The circuit court awarded custody of all three children to mother, and the parties entered into an agreement relating to the children's care and maintenance, including regular periodic child support. The divorce decree states, "whereupon, the Court having considered the agreement and representations of the parties in light of the factors set forth in the Code of Virginia and other relevant factors, it is adjudged, ordered and decreed as follows . . . ."
Paragraph 4 of the final decree1 sets father's child support obligation at $2,000 a month, an amount "calculated by agreement of the Parties as an upward deviation from the presumed [guideline] amount . . . ," with such support continuing until all three of the parties' children either die or are emancipated upon attaining the age of eighteen. In addition, "[t]he ordered childsupport shall not be reduced or terminated when one or more of the Parties' minor children reside with [the father, and] . . . shall not be reduced or terminated when the first or second of the Parties' minor children is/are emancipated." Paragraph 4 also states that "[c]hild support may be modified upward due to a change in circumstances but may not be reduced" and that father's obligation would be unaffected by mother's remarriage. In Paragraph 5, the final decree directs that mother "shall expressly acknowledge and credit any payment she shall receive from [father's] father[, James Host,] and/or stepmother toward [his] child support obligations set forth in this Order."
As part of their divorce, both parties waived spousal support and agreed to sell or refinance the marital home. In addition, Paragraph 7 provides that mother is entitled to $30,000 from father for attorneys' fees. Nevertheless, "so long as [father] is current and timely in his support payments, [he] is not required to pay any of these fees." Paragraph 8 similarly relieves father of a stipulated support arrearage of $5,826, "so long as [he] is current and timely in his child support payments[.]" In addition to these conditional waivers, the final decree, in Paragraph 6 of the order, provides that, upon default of his support payments, father "shall pay all costs of enforcement of this Order[,] including but not limited to reasonable attorney fees, costs, travel and lodging costs of [mother], sheriff or special process server, court reporter and transcript fees."
Subsequent to their divorce, the parties presented to the circuit court a consent decree, entered July 31, 2013, modifying custody by transferring to father physical custody of their son. The agreed order maintains the $2,000 payable by father as monthly child support and provides that "[t]he parties have agreed that child support shall not be affected by this agreement or modified due to [the son] relocating back to [his father's residence]." The order recites that the child support was calculated using the incomes of the parties as set forth in the final decree.
On August 13, 2013, father filed a motion in the circuit court seeking a declaratory judgment that, under Paragraph 5 of the final decree, he was entitled to a credit for certain monies given to mother by father's father (hereinafter "James Host") that were in excess of his $2,000 monthly obligation.2 Mother demurred in response.
While the declaratory judgment action was pending, mother filed, on October 21, 2013, a motion for rule to show cause for father's alleged failure to comply with the terms of the final decree and modified custody order, including provisions related to child support, attorneys' fees, and sharing of his federal tax return. Mother specifically alleged failure to pay the full $2,000 a month and, based on his noncompliance, sought enforcement of the penalty provisions related to her conditional waiver of collection of arrearages and attorneys' fees.
A hearing was held on December 13, 2013. The court ruled that the final decree did not allow for excess payments from James Host to be credited towards another month; rather such monies were received as gifts and thus father was found to be in arrears and in violation of the support orders. The court, however, did not find the violation willful and declined to find father in contempt. This ruling was memorialized in an order entered January 31, 2014, which "ma[de] no finding or order concerning" the provisions relating to mother's collection of past arrearages and attorneys' fees, "leav[ing] those issues to be resolved by agreement of the Parties or by other proceeding in this cause." The matter remained on the court's docket.
On March 7, 2014, father filed a second motion for declaratory judgment, seeking an order directing mother to deposit support checks, seeking attorneys' fees, and a finding that mother waived any claim of collecting on the penalty provisions.
On March 13, 2014, mother filed a "Motion to Enforce Order" raising issues arising from the final decree's provisions related to the martial home, tax returns, medical costs payments, collection of the conditionally waived attorneys' fees and arrearages, and attorneys' fees associated with the ongoing litigation. On May 5, 2014, mother filed another motion, entitled a "Motion for Resolution of the Remaining Issues in this Cause," claiming the issues related to attorneys' fees, application of the final decree's default provisions, and tax returns remained unresolved. Mother also sought to compel father to sell or refinance the marital home in accord with the divorce decree.
On May 27, 2014, father filed his "Response to [Mother's] 'Motion to Enforce Order' and Motion for Resolution of the Remaining Issues in this Cause." In this pleading, father raised, for the first time, the issue of whether the child support provision was void because it impermissibly limited the circuit court's ability to modify child support in violation of the rule set out in Kelley v. Kelley, 248 Va. 295, 449 S.E.2d 55 (1994). Father reasoned that, if the underlying order is void, he did not owe the claimed support arrearage and that the mother was not entitled to the relief she sought in her May 5, 2014 motion.
On June 27, 2014, the circuit court held a hearing on whether the agreement was void under Kelley. The circuit court took the matter under advisement, issuing a letter opinion and order on August 26, 2014. The court concluded that the "parties' Final Divorce Order and the July 13, 2013 Agreed Order Modifying Child Custody contain no void provisions." Father fileda motion to reconsider, which was denied September 15, 2014. On September 24, 2014, father noted his appeal of the August 26, 2014 order ("August order").3
Notably, neither the circuit court's letter opinion nor its August order resolved all of the issues raised by mother's May 5, 2014 motion. The matter was continued on the docket, and the parties returned to the circuit court for a hearing on October 16, 2014.
At that hearing, the parties sought entry of an order and to address multiple issues related to the proceedings, beginning with father's filing of his initial motion for declaratory judgment.
On October 21, 2014, the court entered an order, that, among other things, directed father to pay the conditionally waived $30,000 attorneys' fees and $5,826 arrearage, appointed a special commissioner for the sale of the house, denied father's motion for support, and awarded mother an additional $30,000 for attorneys' fees incurred in the litigation that began with the filing of father's declaratory judgment action in 2013. Father noted his appeal of this order on November 20, 2014.
In his appeal of the circuit court's October 21, 2014 order, father asserted four assignments of error:
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