Scott v. Sylvester, 801871

• Decision Date: 29 April 1983
• Docket Number: No. 801871,801871
• Citation: 302 S.E.2d 30,225 Va. 304
• Parties: Nancy H. SCOTT v. Anthony I. SYLVESTER. Record
• Court: Virginia Supreme Court

Page 30

302 S.E.2d 30

225 Va. 304

Nancy H. SCOTT v. Anthony I. SYLVESTER.

Record No. 801871.

Supreme Court of Virginia.

April 29, 1983.

Robert G. Jones, Virginia Beach, on briefs, for appellant.

Barry Randolph Koch, Richmond (Edward T. Caton, Virginia Beach, on brief), for appellee.

Before CARRICO, C.J., COCHRAN, POFF, COMPTON, STEPHENSON and

RUSSELL, JJ., and HARRISON, Retired Justice.

POFF, Justice.

Appellant Nancy H. Scott questions the power of a Virginia court to make retroactive modifications in arrearages in child support payments accrued under a foreign decree.

This appeal is a sequel to one we decided in 1979. In that case, Scott invoked the provisions of the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), Code §§ 20-88.12, et seq., by registering a divorce decree entered by a Maryland court requiring her former husband, Anthony I. Sylvester, to make child support payments of $200 per month for each minor child. Scott claimed $9,160.50 in arrearages, most of which had accrued before Sylvester moved to Virginia. The trial court construed Code § 20-88.18 as a limitation upon its jurisdiction to enforce payment of arrearages accrued while Sylvester resided out-of-state and disallowed all but $655.00 of her claim. We held that jurisdiction extended to the full amount of arrearages accruing under the Maryland decree, reversed the judgment, and remanded the cause for further proceedings. Scott v. Sylvester, 220 Va. 182, 257 S.E.2d 774 (1979).

Upon remand, the trial judge conducted two hearings and issued a letter opinion dated June 10, 1980. The judge found that Scott's claim totalled $16,200.00. Against this total, he offset $6,073.50 in payments Scott acknowledged Sylvester had made to her. He also allowed Sylvester $2,086.20 in credits for certain payments he had made directly to the children or to others for their benefit. Other such credits claimed by Sylvester were disallowed on the ground they were gifts. The evidence showed that Sylvester had been unemployed for six months in 1975 and that the children had spent several months in his custody over the years in question. For these intervals, the court reduced the quantum of the monthly payments decreed by the Maryland court and allowed Sylvester a credit of $2,925.00. Applying these several credits against Scott's claim, the court concluded that Sylvester was delinquent in the sum of $5,115.30.

In a final decree entered August 22, 1980, nunc pro tunc June 10, 1980, the trial court held that "the defendant's arrearage should be retroactively modified pursuant to the law of Maryland by the various amounts set forth in the attached letter opinion" and awarded Scott judgment for the net arrearages, interest in the sum of $1,450.50, and an attorney's fee in the sum of $1,131.84.

In ruling on Scott's first appeal, we discussed at length the purposes and legislative history of RURESA. See 220 Va. at 185-86, 257 S.E.2d at 775-76. We recognized that a foreign support order registered pursuant to Code § 20-88.30:5 "shall be treated in the same manner as a support order issued by a court of this State." Code § 20-88.30:6(a). But we had no occasion to decide, as we must now, whether this statutory provision mandates the application of Maryland or Virginia law to assess the amount of arrearages actually due Scott under her claim.

The choice of law is crucial. Under Virginia law, a court lacks authority to relieve a delinquent spouse of the obligation to pay accrued installments of child support. The reasoning underlying this rule is that each installment becomes a vested property right the moment it falls due and, as such, is immune from modification. Cofer v. Cofer, 205 Va. 834, 839, 140 S.E.2d 663, 667 (1965); accord Fearon v. Fearon, 207 Va. 927, 932, 154 S.E.2d 165, 168 (1967). Under Maryland law, however, "child support payments (like alimony) may be modified with respect to such payments as have accrued as well as those not yet due." Johnson v. Johnson, 241 Md. 416, 420, 216 A.2d 914, 917 (1966).

Scott asserts that "the plain, unqualified language and intent of § 20-88.30:6(a)" subject the registered Maryland decree to Virginia law for all purposes. She urges that "the ruling of the lower court retroactively modifying the arrearages ... must be reversed" because a support order entered by a Virginia court cannot be so modified. Sylvester counters that the statute should be construed "to give a foreign support order equal dignity in procedural enforcement, not in substantive application." He reasons that, in taking evidence during the Virginia enforcement proceeding of the need for retroactive modification, the judge properly afforded him the same opportunity he would have had in a Maryland court to challenge his obligation under the decree.

This Court has enunciated the guiding principles in Alig v. Alig, 220 Va. 80, 255 S.E.2d 494 (1979). That case involved a suit in Virginia for enforcement of the alimony provisions of a Maryland divorce decree and for payment of arrearages. Acknowledging that the modifiable Maryland decree lacked the quality of finality contemplated by the full faith and credit clause, U.S. Const. art. IV, § 1, we reaffirmed our approval of the comity doctrine, which allows our courts to give such a decree "the same force and effect as if it had been entered in Virginia". 220 Va. at 84, 255 S.E.2d at 497 (quoting McKeel v. McKeel, 185 Va. 108, 113, 37 S.E.2d 746, 749 (1946)). We admonished, however, that

[i]n enforcing a foreign decree for alimony arrearages under the comity doctrine, due...