Fry v. Schwarting
| Decision Date | 21 April 1987 |
| Docket Number | No. 0124-86-4,0124-86-4 |
| Citation | 355 S.E.2d 342,4 Va.App. 173 |
| Court | Virginia Court of Appeals |
| Parties | , 55 USLW 2691 Dorothy N. Schwarting FRY v. Wilford R. SCHWARTING. Record |
Kaletah N. Carroll, Fairfax, for appellant.
Leslye S. Fenton (Odin, Feldman & Pittleman, P.C., Fairfax, on brief) for appellee.
Present: KOONTZ, C.J., and COLEMAN and DUFF, JJ.
In this appeal, we are asked to decide whether a divorce court is empowered to enforce through its contempt powers a child support decree after the child attained his majority when the terms of the decree track the support provisions of a separation agreement. The trial court ruled that it lacked jurisdiction to enforce the child support obligation, even though the agreement purported to require that support be paid after the age of majority. The court refused to enforce the support provision because the agreement was not incorporated by reference into the decree in accordance with Code § 20-109.1. We disagree with the trial court's ruling and reverse.
We find that the child support provisions of the separation agreement were incorporated into the decree and, thus, were enforceable by contempt. Furthermore, we hold that under the terms of the agreement the parties intended that child support be paid until the children reached the age of twenty-one or until they were "otherwise earlier emancipated." Finally, we hold that legislation lowering the age of majority to eighteen was not an event of "emancipation" within the intent or contemplation of the parties which alleviated the duty of support until the children reached the age of twenty-one. Accordingly, we reverse the trial court's dismissal of the rule to show cause and remand the matter for such further consideration as is consistent with the findings of fact and conclusions of law hereafter stated.
After seventeen years of marriage and the birth of four children, the parties separated in 1967 by mutual consent. A Property Settlement Agreement executed February 5, 1969, provided that Wilford Schwarting pay $125 per month per child totaling $500 per month until "said child or children reach the age of twenty-one, marry or are otherwise emancipated." The agreement further specified:
This agreement shall be offered in evidence in such action, and if acceptable to the court, shall be incorporated by reference in the decree that may be granted therein. Notwithstanding such incorporation, this agreement shall not be merged in the decree, but shall survive the same and shall be binding and conclusive on the parties for all times.
On June 12, 1969, a final divorce decree was entered which provided in material part:
... and it further appearing to the Court that the parties have on the 5th day of February, 1969, entered into an agreement in writing for the settlement of the marital property rights of each of the parties in and to the property of the other, that are now owned or hereafter acquired, and also setting forth therein an agreement as to the custody of the infant children and provisions of visitation thereof, and making provisions for the support and maintenance of the four minor children, and that the Respondent has agreed in the said agreement to $125.00 per month per child, for the care support and maintenance of the minor children, making a total of $500.00 per month, said payments to continue until said child or children reach the age of 21 years, marry or are otherwise earlier emancipated, it is further
ADJUDGED, ORDERED and DECREED that the Respondent shall pay to the Complainant the sum of $125.00 per month per child for their care, support and maintenance, making a total of $500.00 per month, said payment to continue until said child or children reach the age of 21 years, marry or are otherwise emancipated, and it is further
ADJUDGED, ORDERED and DECREED that the terms of the said agreement settling the property rights of the parties, be and they hereby are confirmed....
Despite the provisions of the agreement which called for incorporation by reference, the decree recited the terms of the child support provisions of the agreement and then incorporated them ad haec verba as the child support order. Neither the agreement nor the decree contained any other provisions concerning the obligation to support, maintain, educate or otherwise provide for the children.
Effective July 1, 1972, the Virginia General Assembly enacted Code § 1-13.42 which reduced the age of majority from twenty-one to eighteen years. 1 Between 1972 and 1984 three of the children attained majority. We are not concerned with their status under the agreement. On October 20, 1982, the youngest child Daniel, who was unmarried, a full-time college student and not self-supporting, became eighteen.
On November 21, 1984, the appellant obtained a rule to show cause why the father should not be held in contempt for violating the original support order by failing to pay $125 per month for Daniel's support between April 6, 1984, and November 12, 1984. 2 The juvenile court 3 held that the parties had not intended by their agreement that child support be paid beyond majority, that "otherwise emancipated" included emancipation by the change in the law which lowered the age of majority, and since no support was due, dismissed the rule and closed the case. On appeal, the circuit court also dismissed the contempt proceeding, but on the ground that it lacked authority to enforce the agreement by contempt because it was not properly incorporated by reference in the divorce decree pursuant to Code § 20-109.1.
Both courts predicated their decision upon separate findings that they lacked authority to exercise their contempt power to enforce the child support obligation. The juvenile court concluded that the support obligation did arise from the agreement and was incorporated in the decree, but ended when the youngest child reached majority; thus, the juvenile court ruled that it had no authority to grant relief after the child attained majority. The circuit court decided that the child support obligation was not incorporated by reference as part of the decree or made enforceable by it.
At the outset, we must decide whether the contractual child support provisions were given the force and effect of a decree of the divorce court. If so, and if as the appellant contends the provision obligated the father to pay support until each child reached the age of twenty-one, then the trial court erred in dismissing the rule to show cause.
The jurisdiction of a divorce court to provide for child support is statutory, Code § 20-107.2; Jackson v. Jackson, 211 Va. 718, 719, 180 S.E.2d 500, 500 (1971) and divorcing parents cannot by agreement divest a divorce court of its jurisdiction to award child support. Hammers v. Hammers, 216 Va. 30, 31, 216 S.E.2d 20, 21 (1975). The extent to which and method by which an agreement for child support is enforceable will depend upon the action taken by the divorce court pursuant to Code § 20-109.1. The court may accept a child support agreement, in whole or in part, Rodriguez v. Rodriguez, 1 Va.App. 87, 90, 334 S.E.2d 595, 597 (1985), or it may completely reject the agreement and exercise its statutory right to determine support. If the court accepts the agreement, its decree may merely approve, ratify or affirm the agreement, in whole or in part, without incorporating its provisions into the decree or ordering payment or compliance with its terms. See Shoosmith v. Scott, 217 Va. 789, 791-93, 232 S.E.2d 787, 788-89 (1977). In that situation, the decree merely constitutes judicial approval of a private bilateral contract, see Rodriguez, 1 Va.App. at 90, 334 S.E.2d at 597 (citing Shoosmith v. Scott (citation omitted)), and the provisions of the support agreement do not have the full force and effect of a court's decree and are not enforceable by the court's contempt powers. See Shoosmith v. Scott, 217 Va. at 792, 232 S.E.2d at 789. The court also has the option to incorporate by reference the child support provisions, in whole or in part, as part of the final decree, Code § 20-109.1, and retain jurisdiction to enforce compliance through its contempt powers. Thus, we must determine whether the child support provisions of the decree were based upon the statutory authority of the court to award child support pursuant to Code § 20-107.2, or whether the court merely gave judicial approval of the provisions by affirming or approving the agreement, or whether the provisions were incorporated into the decree giving it the effect of a court order.
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