Shoup v. Shoup
Decision Date | 27 February 2001 |
Docket Number | Record No. 0098-00-4. |
Parties | Francis E. SHOUP v. Heidi S. SHOUP. |
Court | Virginia Court of Appeals |
Betty A. Thompson, Arlington (David M. Levy; Surovell, Jackson, Colten & Dugan, Fairfax, on brief), for appellant.
Valerie Szabo (Valerie Szabo, P.L.L.C., on brief), Arlington, for appellee.
Present: FITZPATRICK, C.J., and BENTON and ANNUNZIATA, JJ.
Francis E. Shoup ("father") appeals from the judgment of the Circuit Court of Fairfax County finding him in arrears for child support payments in the amount of $33,838.20, plus interest, as well as attorney's fees and costs. The court also found father in contempt. He contends the trial court erred: (1) by disregarding the emancipation of two of the parties' children in computing arrearages; (2) in finding him in contempt and ordering him to pay arrearages accruing after September, 1995, given evidence that he had paid an amount equivalent to what he owed according to the Virginia support guidelines; (3) in finding that the parties' agreement concerning modification of child support was self-executing as to changes in child-care costs, but was not self-executing upon the emancipation of a child; (4) by declining to enforce the parties' purported self-executing agreement on child support modification; and (5) in awarding attorney's fees to Heidi S. Shoup ("mother").
The mother appeals the trial court's award of credit to the father for child-care costs. The mother alleges the trial court erred: (1) by awarding a credit to the father for child-care costs in the absence of a request for such a credit; (2) in retroactively crediting child-care costs when the child support award had not been modified; and (3) in determining that mother had conceded the issue of child-care expenses.
We affirm the order in part, and reverse, in part.
The parties were divorced by a final decree of divorce entered by the Fairfax County Circuit Court on September 1, 1994. At the time of the divorce, the parties had three minor children: Allison Elliot Shoup, born November 30, 1977; Francis Elliot Shoup, IV, born June 8, 1979; and Kyle A.M. Shoup, born June 20, 1985. The final divorce decree incorporated the parties' June 27, 1994 Custody, Support and Property Settlement Agreement.1 In accordance with the parties' agreement, the final decree ordered the father to pay $2,177 per month in child support to the mother. The decree also provided for a proportionate division of certain medical expenses and for reimbursement of child-care costs based on the parties' relative annual gross incomes as calculated in the support guideline worksheet, Attachment A to the agreement.
The oldest child, Allison, graduated from high school in June, 1995 and turned eighteen years of age on November 30, 1995. Beginning in October, 1995, the father unilaterally reduced the amount of support by approximately one-third to $1,452 per month. Also beginning in October, 1995, child-care costs were no longer incurred. The second child, Elliot, graduated from high school in May, 1997 and turned eighteen in June, 1997. Beginning in June, 1997 the father again unilaterally reduced the amount of support by another one-third to $764 per month. Although the father unilaterally reduced the amount of support paid on each of these two occasions, the record shows that the mother did not object until she filed the present suit to collect the arrearages.
On April 13, 1999 the mother filed a petition for a rule to show cause against the father for failing to pay $2,177 per month in child support. The matter was heard on June 24, 1999. In its letter opinion dated October 30, 1999, the trial court found the father to be in contempt of court and found that he was in arrears as to the support amount contained in the final decree from October, 1995 through May, 1999. Based on the parties' agreement as incorporated into the final decree, the trial court also awarded father a credit for his payments of child-care expenses that had not been incurred by the mother. The trial court entered an order dated December 7, 1999 finding the father in contempt and entered judgment against the father in the principal sum of $33,838.20, with interest running at the judgment rate. It also awarded mother her attorney's fees.
The father contends the trial court erred in holding him in contempt. He argues that the terms of the final divorce decree and incorporated property settlement agreement permitted him to automatically reduce his child support payments when each child reached the age of eighteen and graduated from high school. We disagree.
371 S.E.2d at 847; see also Kaplan v. Kaplan, 21 Va.App. 542, 548, 466 S.E.2d 111, 114 (1996) (quoting Code § 20-108).
Father nevertheless contends that, because the agreement was incorporated into the decree, the court was bound to enforce the parties' agreement permitting modification of child support without court approval. To be sure, "incorporation of the [child support] agreement . . . into the decree render[s] the terms of the agreement so incorporated enforceable as a decree of the court." Fry v. Schwarting, 4 Va.App. 173, 179, 355 S.E.2d 342, 345 (1987). However, a decree that incorporates an agreement permitting automatic, unilateral, or agreed upon modification of support without prior court approval is a legal nullity and void. Kelley v. Kelley, 248 Va. 295, 298-99, 449 S.E.2d 55, 56-57 (1994) ( ); see also Biggins v. O'Brien, 34 Va. App. 82, 538 S.E.2d 320 (2000)
.4
Furthermore, father's position that the terms of the final decree itself permitted automatic modification of the child support award upon the emancipation of each child also fails to consider that, under Virginia law, the court cannot order prospective modification of child support upon the occurrence of a future event. See Solomond v. Ball, 22 Va. App. 385, 470 S.E.2d 157 (1996)
( ); Keyser v. Keyser, 2 Va.App. 459, 345 S.E.2d 12 (1986) ( ). As we have stated:
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Shoup v. Shoup, Record No. 0098-00-4.
...actions violative of public policy, holding that the child support payments could only be changed by court order. See Shoup v. Shoup, 34 Va.App. 347, 542 S.E.2d 9 (2001). On that basis, the panel majority also found the incorporated self-adjustment provision for periodic fluctuations in chi......
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