Scott v. Scott, 0424-90-2

• Decision Date: 27 August 1991
• Docket Number: No. 0424-90-2,0424-90-2
• Citation: 408 S.E.2d 579,12 Va.App. 1245
• Parties: Gregory Lewis SCOTT v. Dixie Lee SCOTT. Record
• Court: Virginia Court of Appeals

Page 579

408 S.E.2d 579

12 Va.App. 1245

Gregory Lewis SCOTT v. Dixie Lee SCOTT.

Record No. 0424-90-2.

Court of Appeals of Virginia.

Aug. 27, 1991.

Bruce R. Williamson, Jr. (Williamson & Toscano, Charlottesville, on brief), for appellant.

George H. Dygert (George H. Dygert & Associates, Charlottesville, on brief), for appellee.

Present: BARROW, COLE ^* and COLEMAN, JJ.

COLE, Judge.

This is an appeal from the child support provisions of a final divorce decree entered in the Circuit Court of Albemarle County on February 14, 1990. The appellant, Gregory Lewis Scott, raises two issues on appeal: (1) whether the trial court erred in ruling that in setting child support payments, it would deviate from the amount fixed in a post-nuptial agreement of the parties only upon a showing by the husband that he could not possibly carry out the provisions of such agreement; and (2) whether the trial court erred in ruling that it would not deviate from the amount fixed in the agreement unless the husband proved a material change in circumstances without regard to changes in circumstances of the appellee. We find error in both holdings and reverse.

We commence our analysis with the general principle that the jurisdiction of a divorce court to provide for child support is statutory. Code § 20-107.2; see Jackson v. Jackson, 211 Va. 718, 719, 180 S.E.2d 500, 500 (1971). 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). As of the hearing date, February 9, 1990, no child support award was in effect and none had previously been entered. Since the court was setting child support for the first time, the hearing was an initial child support hearing and the trial court erred in considering only those factors which were relevant to a change in circumstances. See Lee v. Lee, 3 Va.App. 631, 634, 352 S.E.2d 534, 536 (1987).

In any proceeding on the issue of determining child support, there exists a rebuttable presumption that the amount of the award as determined by the application of the statutory child support guidelines is the correct amount. Code § 20-108.1. Therefore, a trial court must first determine the presumptive amount of child support in accordance with the terms of the statute. Code § 20-108.2; see also Richardson v. Richardson, 12 Va.App. 18, ---, 401 S.E.2d 894, 896 (1991); Farley v. Liskey, 12 Va.App. 1, ---, 401 S.E.2d 897, 899 (1991); Alexander v. Alexander, --- Va.App.[12 Va.App. 1248] ---, ---, 406 S.E.2d 666, 668 (1991). ¹ This amount is determined according to a schedule that varies according to the combined gross income of the parties and the number of children involved. Once the presumptive amount is determined, the trial court may deviate from the presumptive amount if such deviation is justified by factors recognized in Code §§ 20-108.1 and 20-107.2.

When divorcing spouses have entered into a separation agreement providing for child support and maintenance, the trial court may, in the exercise of its sound discretion, affirm, ratify, or incorporate the provisions of the agreement into its decree. Code § 20-109.1. "[P]ublic policy favors prompt resolution of disputes concerning the maintenance and care of minor children and the property rights of the parties. Voluntary, court-approved agreements promote that policy and should be encouraged." Morris v. Morris, 216 Va. 457, 459, 219 S.E.2d 864, 867 (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, 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. In that situation, the decree merely constitutes judicial approval of a private bilateral contract, 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. 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.

Fry v. Schwarting, 4 Va.App. 173, 178, 355 S.E.2d 342, 345 (1987) (citations omitted). When the parties have entered into a separation agreement providing for child support, a trial court has authority to incorporate the agreement in its decree. Code § 20-109.1. This incorporation may include a provision for child support. Id. However, such an agreement between husband and wife cannot prevent the court from exercising its power to make and modify child support awards. Featherstone v. Brooks, 220 Va. 443, 446, 258 S.E.2d 513, 515 (1979); see also Mayhood v. Mayhood, 4 Va.App. 365, 369, 358 S.E.2d 182, 184 (1987). The provisions of a separation agreement may be considered if they are consistent with the best interests...