Hughe v. Hughes
| Decision Date | 07 September 2010 |
| Docket Number | Record No. 2602-09-4 |
| Court | Virginia Court of Appeals |
| Parties | PAUL DAVID HUGHE v. RUTH HANKINSON HUGHES |
August McCarthy for appellant.
Julia Savage (Walker Jones, PC, on brief), for appellee.
Paul David Hughes (husband) appeals the ruling of the Circuit Court of Fauquier County regarding child support arrearages owed to Ruth Hankinson Hughes (wife). Husband further appeals the circuit court's decision finding him in contempt. Wife cross-appeals, arguing that the circuit court erred by not awarding her attorney's fees. For the following reasons, we affirm in part and reverse in part.
This case stems from a dispute over the amount of child support owed following the parties' divorce. The parties had two minor children at the time of the divorce, L.C.H. and a younger child.
The parties signed a "Property Settlement and Separation Agreement and Stipulation" (PSA), which was ultimately affirmed, ratified, and incorporated into the divorce decree. The PSA specifically provided, in pertinent part:
The child L.C.H. turned eighteen years old in October of 2008, leaving one minor child in wife's household. In response, husband unilaterally reduced his monthly child support payments by half.
Wife petitioned for a rule to show cause. At the resulting hearing, the circuit court heard testimony and argument from the parties. Husband explained that he believed that L.C.H.'s birthday automatically reduced his child support payments by half. He did not seek the court's permission because he did not think doing so was necessary. 1
The circuit court determined the PSA was incomplete, explaining:
This agreement is silent as to what happens when [L.C.H.'s] emancipation... occurs. It's missing a sentence. It didn't say [husband's child support obligation is] divided in half. It didn'tsay it's divided by a third. It didn't say we were going to follow the child support guidelines. It says nothing. So the problem is you've got an agreement that is incomplete and the Court can't write the contract for the parties.
The circuit court thus found that husband improperly reduced the child support payment. Accordingly, the court calculated the sum of the arrearage based on the $1,175 amount provided in the PSA.
The circuit court further found husband in civil contempt, noting that it was "kind of a close case... because the agreement is not as clear as it should be." The court noted, "[I]f he had tried to follow the guidelines and reduced it to the guidelines, I might have felt differently." The circuit court permitted husband to purge his contempt by paying the full amount of his child support arrearage within a year.
Additionally, in rejecting wife's request for attorney's fees, the circuit court simply stated that it was "not going to award any attorney's fees." Husband appeals the circuit court's determination of the child support arrearage and contempt findings, and wife cross-appeals the denial of attorney's fees.
Husband argues that Code § 20-109.1 allowed him to modify the child support amount without court intervention when L.C.H. reached the age of eighteen. He takes the position that the PSA clearly demonstrated the intent of the parties to modify the child support obligation when L.C.H. reached the age of eighteen, despite its silence as to how the child support obligations would be modified. Wife responds that the circuit court correctly determined a child support arrearage existed because the PSA lacked an identifiable methodology for recalculating child support and, thus, was not self-effectuating.
Under Code § 20-109.1, a court may affirm, ratify, and incorporate into a divorce decree any valid agreement between the parties concerning the care, custody, and maintenance of their minor children. "Unless otherwise provided for in such agreement or decree incorporating such agreement, such future modifications shall not require a subsequent court decree." Code § 20-109.1. This code section applies when the parties contract for a monetary support award and that contract specifically provides a method by which support is recalculated. See Shoup v. Shoup, 37 Va. App. 240, 253-54, 556 S.E.2d 783, 789-90 (2001) (en banc) ().
Here, the agreement does not provide that the amount of support attributable to each child is equal or that support shall be reduced proportionately when a child reaches the age of majority. The child support award is unitary because it does not indicate what portion of the award is for each child, and the agreement provides no mechanism for the parties to determine how much support is due upon the terminating contingency of a child's reaching majority. The agreement's provision for the future reduction of child support was not self-executing because it did not provide how the parties should modify child support once the oldest child became emancipated.
Because the language in the agreement regarding the adjustment of child support was not self-executing, husband was obligated to obtain court approval before modifying support. See Goodpasture v. Goodpasture, 7 Va. App. 55, 58, 371 S.E.2d 845, 847 (1988) (); Johnson v. Johnson, 1 Va. App. 330, 333, 338 S.E.2d 353, 355 (1986) (). Therefore, the circuit court properly found that husband violated the divorce decree by unilaterally reducing support and, consequently, owed wife child support arrearages.
Husband also argues that the circuit court erred in its calculation of the arrearage amount. According to husband, the court could only accept husband's method of reducing the support by half or recalculate the support according to Virginia's child support guidelines for the relevant period. Husband, however, cites no authority in support of his assertion. Rule 5A:20(e) required that an appellant's brief contain "[t]he principles of law, the argument, and the authorities relating to each question presented." "Statements unsupported by argument, authority, or citations to the record do not merit appellate consideration." Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). Accordingly, we decline to address husband's argument on this matter.
Husband next argues that the trial court erred in finding him in civil contempt, because the evidence did not support a finding of willfulness. Wife does not address this issue.
"It 'is within the discretion of the trial court' to conduct civil contempt proceedings[;] thus we review the exercise of a court's contempt power under an abuse of discretion standard." Petrosinelli v. People for the Ethical Treatment of Animals, Inc., 273 Va. 700, 706, 643 S.E.2d 151, 154 (2007) (quoting Arvin, Inc. v. Sony Corp. of Am., 215 Va. 704, 706, 213 S.E.2d 753, 755 (1975)). A trial court may hold an offending party in contempt for "'acting in bad faith or for willful disobedience of its order.'" Commonwealth Dep't of Soc. Servs. ex rel Graham v. Bazemore, 32 Va. App. 451, 455, 528 S.E.2d 193, 195 (2008) (quoting Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d 666, 669 (1991)). "'[B]efore a person may be held in contempt for violating a court order, the order must be in definite terms as to the duties therebyimposed upon him and the command must be expressed rather than implied.'" Winn v. Winn, 218 Va. 8, 10, 235 S.E.2d 307, 309 (1977) (quoting Wood v. Goodson, 485 S.W.2d 213, 217 (Ark. 1972)); cf Fisher v. Salute, 51 Va. App. 293, 305-06, 657 S.E.2d 169, 174-75 (2008) (). In other words, a person is in contempt of a court order only if it is shown that he or she has violated its express terms.
The circuit court found that husband's violation of the divorce decree was willful, but did not indicate that the violated duty was expressly stated in the PSA. Indeed, the court implicitly concluded the duty was not express by stating that, had husband unilaterally reduced the amount in accordance with the child support guidelines, such...
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