Fearon v. Fearon
| Decision Date | 24 April 1967 |
| Citation | 207 Va. 927,154 S.E.2d 165 |
| Court | Virginia Supreme Court |
| Parties | Elizabeth J. FEARON v. Gerard Andrew FEARON. |
Thomas A. Fortkort, Falls, Church, for appellant.
No brief or argument for appellee.
Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.
The dominant question presented in this appeal is whether a husband is entitled to receive credit for monies paid directly to his children or to others for the children's benefit when a divorce decree directs that a lump sum be paid periodically to the wife for the 'support and maintenance' of herself and the children whose sole custody has been awarded to her.
On June 27, 1961, the Circuit Court of Fairfax County entered a decree granting Elizabeth J. Fearon, appellant, a divorce A mensa et thoro from her husband, Gerard Andrew Fearon, appellee, on the ground of constructive desertion. The decree awarded sole custody of their three children to Mrs. Fearon, and it directed that Fearon pay to Mrs. Fearon the sum of $200 on the first and fifteenth of each month for the 'support and maintenance' of herself and the children.
Subsequently, on June 18, 1965, Fearon filed in that court a petition to enlarge the decree of divorce from bed and board into a decree of divorce from the bond of matrimony, and to reduce the amount of support to $300 because two of the children 'were no longer in the care and custody' of the mother and have been emancipated. Based on an affidavit filed by Mrs. Fearon on June 25, 1965, alleging that Fearon was in arrears in payments for the support of herself and the children directed by the decree of June 27, 1961, the court issued an order directing Fearon to appear and show cause why he should not be held in contempt for failure to make the required payments.
An Ore tenus hearing was had on July 1, 1965, and the testimony of the witnesses is before us in narrative form.
Mrs. Fearon, who was then residing in Florida, testified, among other things, that she had at all times since the entry of the decree of divorce from bed and board maintained a home for the use and benefit of her children, Gerard, Jr., age 22; Joseph, age 20; and Philip, age 15. She stated that she was employed as a school teacher until she became ill and resigned in June, 1964; that Gerard, Jr. attended the University of Virginia after she and Fearon separated and except for short visits with her, he spent the summers with his father; and that while she was employed she sent Gerard, Jr. 'up to one-half of the support money she had received to further his education.'
Mrs. Fearon further testified that Joseph had lived with her part of the time, but he became a problem child and ran away from her home; and that thereafter on occasions he resided with her or his father, 'but usually his whereabouts was unknown or in the custody of law enforcement authorities in Florida and Virginia.' She said that Philip lived with her 'at all times except for visits with his father.' She also said that on September 25, 1962, she 'instituted a support action in the District of Columbia for herself, Gerard, Jr., and Philip'. 1
The 'business records' of Mrs. Fearon offered in evidence showed that since June 27, 1961, there was an arrearage in the amount of $6,350.
Fearon, who was then remarried and residing in Chevy Chase, Maryland, introduced in evidence cancelled checks payable to Mrs. Fearon, the children and to others. Over the objection of Mrs. Fearon he also introduced account sheets 'showing the cancelled check numbers and cash payments, the names of persons to whom all checks and cash payments were made, for what purpose and for whose benefit these payments were made.' He testified that Gerard, Jr. had lived with him from June, 1962 until June, 1965 except for the periods he was in attendance at the Unversity of Virginia. He conceded that Mrs. Fearon had made contributions towards Gerard, Jr.'s tuition and expenses at the University. He further testified that on March 1, 1962, the Juvenile Court of Volusia County, Florida, awarded him the custody of his son, Joseph.
Gerard, Jr. stated that he graduated from the University in June, 1965; that he was presently living with his father; that his mother gave him 'substantial sums of money at varying times' and had sent him all the money he received during his first two years at the University; that in May, 1963 he called upon his father for financial assistance, and that thereafter his father sent him 'about $100 per month for about two years.'
In a letter opinion, dated July 9, 1965, the trial court found, amount other things, that through June 30, 1965, Fearon should have paid Mrs. Fearon $19,200 pursuant to the decree of June 27, 1961 requiring monthly payments of $400, and that she had actually received $12,850. The court stated that the decree of June 27, 1961 'makes no apportionment', but 2
The trial court also observed that all parties since February, 1962, considered Joseph's support as being paid directly by his father. The court stated that this conclusion was consistent with the order of September 25, 1962, entered by the Municipal Court of the District of Columbia, and that Fearon was entitled to a credit of $100 per month from February, 1962 for Joseph's support. Similarly, the court found that Gerard, Jr., had received support directly from his father since May, 1963, and a credit of $100 per month would be allowed from that date.
Based upon the foregoing, the court made the following computations:
'Payments of $400.00 per month from July 1, 1961 to
June 30, 1965 ........................................ $19,200.00
Less
Credit for payments made $12,850.00
Credit for support of Joseph
from February, 1962 4,000.00
Credit for support of Gerard,
Jr. from May, 1963 2,400.00
------------------
$19,250.00'
As a result of the allowance of the above credits for the support of Joseph and Gerard, Jr., the court found that there was no arrearage, and...
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