Riggins v. O'BRIEN

• Citation: 34 Va. App. 82,538 S.E.2d 320
• Decision Date: 12 December 2000
• Docket Number: Record No. 2297-99-4.
• Parties: Robert John RIGGINS v. Mary Louise O'BRIEN.
• Court: Court of Appeals of Virginia

538 S.E.2d 320

34 Va. App. 82

Robert John RIGGINS v. Mary Louise O'BRIEN.

Record No. 2297-99-4.

Court of Appeals of Virginia, Alexandria.

December 12, 2000.

Jerry M. Phillips (Phillips, Beckwith, Hall & Chase, on briefs), Fairfax, for appellant.

Elizabeth D. Teare (Surovell, Jackson, Colten & Dugan, P.C., on brief), Fairfax, for appellee.

Present: ANNUNZIATA, J., and DUFF and HODGES, Senior Judges.

ANNUNZIATA, Judge.

Robert John Biggins appeals two decisions of the circuit court, one finding him liable to Mary Louise O'Brien for $106,137.99 in past due child support and interest under the parties' support agreement and the other setting the amount of ongoing monthly child support. Riggins contends the trial court (1) erred in interpreting the child support provisions of the final decree of divorce entered June 12, 1991; (2) erred in finding that the parties did not renegotiate child support pursuant to the provisions of the final decree; (3) abused its discretion in refusing to impose monetary sanctions for O'Brien's civil contempt in relocating the minor children without permission of the court; (4) erred by severing the issue of the ongoing child support payments; (5) erred by granting a non-suit of O'Brien's petition for modification of child support and visitation despite Riggins's pending interrelated issues; (6) erred by not considering the Code § 20-108.1 factors when setting child support; and (7) erred by modifying the final decree of divorce to change the emancipation date for termination of child support. Riggins also seeks appellate attorney's fees. For the reasons that follow, we affirm the trial court's rulings.

BACKGROUND

The parties married in 1974. After almost fifteen years of marriage and four children, they separated in 1989. Under a property settlement agreement signed by the parties on June 10, 1991, they resolved their outstanding property distribution issues. They did not resolve the issues of custody, visitation or child support, and a hearing on those issues was scheduled for June 12, 1991. However, prior to the start of the hearing, the parties reached an oral agreement on those issues. The terms of their agreement as to child support, custody and visitation were set out only in the final decree of divorce, entered June 12, 1991, which provided in pertinent part:

ADJUDGED, ORDERED and DECREED, by agreement of the parties, that the Cross-Plaintiff, ROBERT JOHN RIGGINS, as and for the support and maintenance of the parties' minor children, shall pay unto the Plaintiff, MARY LOUISE RIGGINS, the sum of Three Thousand Two Hundred Fifty Dollars ($3,250.00) per month on the first day of each month hereafter, commencing on July 1, 1991, and continuing thereafter until said children shall attain the age of eighteen (18) years, marry, become self-supporting, become otherwise emancipated, or die, whichever should first occur, there being no existing arrearages as of June 12, 1991; provided, however, that the amount payable hereunder shall be renegotiated or submitted to a court for adjudication on the first event of emancipation, as set forth above, as to each child....

Riggins made the agreed child support payment each month until August 1992, when the parties' eldest child reached the age of eighteen. Riggins testified that he then wrote a letter to O'Brien, indicating that he was reducing the amount of child support by one-quarter, pursuant to the parties' agreement. O'Brien testified that there was no "re-negotiation" of the amount of child support nor was the amount submitted to the court. However, it was uncontested that O'Brien did not object to the reduced amount of child support and continued to receive the monthly payments for over six years without voicing any objection.

In addition, in 1994, following her remarriage, O'Brien moved to Kansas with the children. Riggins testified that he first learned about the pending relocation from his children less than a month before the move took place. Riggins subsequently relocated to New York in February 1995. The majority of the expenses for visitation were borne by Riggins.

In 1996, the parties' second oldest child, a daughter then age sixteen, left high school and moved into a condominium with two young men. Riggins notified his daughter and O'Brien that he would not pay child support for his daughter under those conditions, as he considered her emancipated. Riggins made a corresponding reduction in the amount of his monthly child support.

In October 1998, O'Brien filed a petition for a rule to show cause alleging that Riggins was in contempt for his failure to pay $3,250 in monthly child support since 1992. Riggins also filed a petition for a rule to show cause, alleging that O'Brien's relocation to Kansas violated the provision for joint custody. A hearing on these two issues, plus the issue of prospective child support, was set for March 15, 1999. On the March 12, 1999 motions day, O'Brien moved to non-suit her petition to modify child support, which the presiding judge granted. In order to keep the determination of child support on the docket for the March 15, 1999 hearing, Riggins filed his own petition seeking modification of child support and visitation. At the hearing, however, Judge MacKay ruled that O'Brien's non-suit removed the issues of child support modification and visitation from the proceeding. After receiving the evidence, Judge MacKay issued a final decision on September 15, 1999, finding Higgins liable for 5,332.94 in child support arrearage and $20,805.05 in pre judgment interest. On August 30, 1999, following a hearing on May 3, 1999, Judge Thacher issued a final decision setting the amount of child support. Riggins appealed both decisions.

I. and II. Renegotiation of Child Support

In our opinion, the issue of whether the parties renegotiated the child support upon the eldest child reaching majority and again upon the daughter quitting high school and moving out of her mother's home is not dispositive of the legal issues presented.

Although "public policy favors prompt resolution of disputes concerning the maintenance and care of minor children," Morris v. Morris, 216 Va. 457, 459, 219 S.E.2d 864, 867 amount, (1975), any such agreements for support, either established at the time of divorce, or for modification post-divorce, must be reviewed and approved by a court of law. Id. at 461, 219 S.E.2d at 867 ("[T]he court retains continuing jurisdiction to modify its decree as to the maintenance of minor children, notwithstanding the existence of a contract between the parents."); Scott v. Scott, 12 Va.App. 1245, 1249, 408 S.E.2d 579, 582 (1991) ("[A]greement[s] between husband and wife cannot prevent the court from exercising its power to make and modify child support awards.").

Following the Virginia Supreme Court's decision in Morris, we held in Goodpasture v. Goodpasture, 7 Va.App. 55, 371 S.E.2d 845 (1988), that "[p]arties cannot contractually modify the terms of a support order without the court's approval ... . Should circumstances change requiring alteration in the amount of support, a party's remedy is to apply to the court for relief." Id. at 58, 371 S.E.2d at 847; see also Kelley v. Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 56 (1994)

. Indeed, we have approved specific procedures to be followed by the trial court in its determination of whether to ratify, affirm and incorporate an agreement which sets child support. In Watkinson v. Henley, 13 Va. App. 151, 409 S.E.2d 470 (1991), we held that the agreed amount must be evaluated relative to the factors set forth in Code § 20-108.1 as follows:

[W]here parents have agreed upon an amount, or agreed upon other provisions, for the support and maintenance of a child, the trial court must consider the provisions of the agreement, that relate to the factors in Code §§ 20-107.2 and 20-108.1 [now contained exclusively in § 20-108.1], in deciding whether the presumptive amount would be unjust or inappropriate in a particular case. In so doing, the trial court must consider whether the agreed provisions for the child would better serve the interest or "equities" for the parents and children. Code § 20-107.2(2)(h) [now § 20-108.1(B)(18)]. The best interest of the child or children is the paramount and guiding principle in setting child support, whether it be adopting the presumptive amount, calculating an alternate sum after the presumptive amount has been rebutted, ordering the amount agreed upon between the parents, or approving, ratifying and incorporating, in whole or in part, the child support provisions of a contract. Furthermore, we hold that if the trial court finds that the presumptive amount is unjust or inappropriate because the provisions in a separation agreement serve the best interest of the child, the court may vary from the guidelines by ordering support be paid in an amount equal to the benefits provided for in the contract. Alternately, the court may, rather than judicially set support, elect to affirm, ratify and incorporate by reference the agreement between the parties, or any provisions thereof, concerning the maintenance and support of the minor children, or establish or impose any other condition or consideration, monetary or nonmonetary.

Id. at 158-59, 409 S.E.2d at 474 (citations omitted). Accord Spagnolo v. Spagnolo, 20 Va.App. 736, 460 S.E.2d 616 (1995)

(reversing the trial court's failure to follow the parties' agreement, where the record indicated that the trial judge failed to adequately consider the best interests of the child, as the judge neither considered the entire package of benefits available to the child as set forth in the support agreement nor compared the relative merits of the support agreement to the statutory support guideline amount).

Because the "best interest of the child... is the paramount and guiding principle in setting child support," Watkinson, 13 Va. App. at 158, 409 S.E.2d at 474, the need for court...