Fernandez v. Fernandez
| Decision Date | 01 July 2018 |
| Docket Number | Case No. CL-2017-14055 |
| Court | Circuit Court of Virginia |
| Parties | Re: Rocio Peggy Fernandez v. Melvin Erick Fernandez |
Mr. John T. Winkler, II
Ms. Michelle A. Bieber
Grenadier, Starace, Duffett & Levi, P.C.
649 South Washington Street
Alexandria, VA 22314
Ms. Emilia Castillo
Attorney at Law
7777 Leesburg Pike, Suite 206 South
Falls Church, VA 22043
Dear Counsel:
This case presents a question of apparent first impression of whether, absent an express agreement, a payor husband may be given credit extinguishing support arrearages, having resumed full financial support for his spouse and child in reunification of the family unit, while an order of temporary spousal and child support nevertheless remained in effect. The payee wife disputes the existence of any express understanding respecting crediting of obligations under the support order. Even if there was no agreement, the undisputed evidence remains that the wife had access to funds of the husband through use of his debit card. This circumstance supplies a course independent of any agreement for husband to be credited in satisfaction of his arrearages with all funds wife accessed, even those moneys she in turn paid to third parties in exercise of her dominion over such card. This Court, however, finds there was in fact an agreement inferable from the payee wife's admission, to wit, that both parties "forgot" about the existing support order, coupled with her acceptance of her payor husband's permanent resumption of his custodial role over the child covered by the order, and his full financial support of the family, including of wife. This created an implied-in-fact unequivocal agreement to reconstitute the marital status quo with husband's complete assumption of the financial obligations pre-existing the prior separation. The agreement escapes any potential bar from the Statute of Frauds because of husband's absolute performance of its contemplated terms as accepted by the wife. An overly technical reading of the applicable statutory legal rules without due deference to their intended legislative purpose, would cast a pervading chill of apparent injustice over this cause, an outcome unnecessary to sheltering the corresponding need for certainty in the law. The governing principle of precedence that a party not be unjustly enriched by application of a support order which purpose is otherwise completely satisfied, compels this Court decline to find the husband owes wife an arrearage under such order. To hold otherwise would constitute an absurd, inequitable result under the facts of this case unintended by theGeneral Assembly, for the payor spouse has fully fulfilled his obligation under the support decree.
Rocio Peggy Fernandez ("Plaintiff" or "wife") and Melvyn Erick Fernandez ("Defendant" or "husband") were married in Lima, Peru, in October 2001. In October 2002, their first child was born. The parties separated in early 2004, and the wife filed for custody and support relief. On October 29, 2004, the Fairfax County Juvenile and Domestic Relations District Court ("District Court") granted the parties joint legal custody of the minor child, with physical custody awarded to the wife. The District Court also entered an order awarding the wife $583.00 in child support and $737.00 in spousal support per month.
The parties reconciled in 2005 and resumed living together in the same home. The husband continued making the required support payments for some time, until approximately the time of the birth of the couple's second child in May 2006. The parties thereafter had one more child in 2008, and they took no formal action to terminate the child and spousal support order. The parties remained living together as husband and wife until August 31, 2016. At that time the parties separated, residing in the same home but conducting separate lives. On April 26, 2017, the husband filed a Motion to Vacate and Terminate Support in the District Court. On October 4, 2017, the wife filed for divorce in this Court, and the District Court subsequently determined such action divested it of jurisdiction, leading to determination of the arrearage issue eventually landing before this Court. The wife moved out of the marital home during May 2018.
From the time the parties reconciled to the moment the husband filed his Motion to Vacate and Terminate Support, the husband was substantially the sole financial supporter of the family. He provided complete support for the wife and the parties' three children. The wife did not work outside the home, and husband was the sole breadwinner. The wife contends the husband has not paid child or spousal support as required by the District Court's order since May 2006. The wife seeks enforcement of such claimed arrearage ancillary to a divorce and equitable distribution proceeding pending before this Court.
In this cause, after a period of separation, the parties chose to resume their marital cohabitation as it existed before the entry of the order of support. Initially, the husband continued to pay the contemplated support despite the reunification of the family, but payments ceased during May 2006. In 2017, the wife indicated she would be seeking a divorce, and the husband sought to terminate the previously-entered temporary child and spousal support order. The wife responded in turn by praying this Court award her the sum of arrearages due her during the period the parties resumed cohabitation and jointly reared their children without having extinguished the order of the Juvenile and Domestic Relations District Court. For the entirety of such time, the husband was the sole earner for the family, responsible for all expenses, while the wife had the primary role of raising the children and maintaining the household, thus enabling the husband to pursue his career. The husband argues preliminarily that imposing the arrearage on him would be unfair and that the wife has "unclean hands". The husband further argues he should becredited with the support he provided his spouse and covered child during the applicable period, under an extension of the holding in Acree v. Acree, 2 Va. App. 151, 342 S.E.2d 68 (1986), wherein an express agreement was found by the Court of Appeals of Virginia to permit such a credit in the context of a child support order.
Normally, support payments made by an obligor spouse directly to children or to third parties, even if indirectly thereby benefiting the obligee spouse, are deemed to be gifts and may not be credited against the support obligation. Fearon v. Fearon, 207 Va. 927, 154 S.E.2d 165 (1967). This is because "in the absence of statute, payments exacted by the original decree of divorce become vested as they accrue and the court is without authority to make any change as to past due installments." Cofer v. Cofer, 205 Va. 834, 838, 140 S.E.2d 663, 666 (1965). The Supreme Court of Virginia further detailed the obligations of payors under orders of support:
[l]t is the obligation of the divorced husband to pay the specified amounts according to the terms of the decree and that he should not be permitted to vary these terms to suit his convenience. In such a decree the required payments are fixed according to the needs of the child or children and the ability of the husband to pay. Should these vary, from time to time, and warrant a change in the terms of the decree favorable to the husband, his remedy is to apply to the court for such relief.
Newton v. Newton, 202 Va. 515, 519, 118 S.E.2d 656, 659 (1961).
Preliminarily, this Court notes the facts in this case are significantly different to those noted in the cited precedent. During the period of reunification, the wife had use of the husband's debit card and access to funds solely held in the husband's name, which arguably satisfied the husband's obligation of support to the extent of the funds she accessed. "A rule giving the trial court discretion to grant credit, in whole or in part, or to deny credit against an arrearage, depending upon the circumstances, allows the judge toconsider the equities of a given situation." Commonwealth v. Skeens, 18 Va. App. 154, 160, 442 S.E.2d 432, 436 (1994).
When a trial court grants credit to a payor . . . the court does not alter the amount of child support that the parent has been ordered or is required to pay. The court simply allows a source of funds, indirectly attributable to a parent, to be used to satisfy the parent's court-ordered support obligation. Thus, a circuit court does not retroactively modify a child support award or forgive an accumulated arrearage by crediting a . . . support obligation.
Id. at 159, 442 S.E.2d at 435.
Irrespective, the cases already cited "do not address the status of the husband's obligation where there is an unequivocal agreement between the parties that: permanently alters the custody of the child; provides that support for the child no longer be paid to the wife; and where that agreement has been fully performed at the time the wife petitioned the court for the arrearage." Acree, 2 Va. App. at 155, 342 S.E.2d at 70. The Acree Court explained:
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