Shoup v. Shoup

• Court: Virginia Court of Appeals
• Writing for the Court: ANNUNZIATA.
• Citation: Shoup v. Shoup, 34 Va. App. 347, 542 S.E.2d 9 (Va. App. 2001)
• Decision Date: 27 February 2001
• Docket Number: Record No. 0098-00-4.
• Parties: Francis E. SHOUP v. Heidi S. SHOUP.

542 S.E.2d 9

34 Va. App. 347

Francis E. SHOUP v. Heidi S. SHOUP.

Record No. 0098-00-4.

Court of Appeals of Virginia, Alexandria.

February 27, 2001.

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.

ANNUNZIATA, Judge.

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.

BACKGROUND

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.

ANALYSIS

I. Automatic Reduction in, Support upon Emancipation

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.

Because the "best interest of the child or children is the paramount and guiding principle in setting child support," Watkinson v. Henley, 13 Va.App. 151, 158, 409 S.E.2d 470, 474 (1991), the court must approve modifications to the amount of support at the time the modification is made. See Cofer v. Cofer, 205 Va. 834, 838, 140 S.E.2d 663, 666 (1965); Bennett v. Commonwealth, 22 Va.App. 684, 696, 472 S.E.2d 668, 674 (1996); Goodpasture v. Goodpasture, 7 Va. App. 55, 58-59, 371 S.E.2d 845, 847-48 (1988). As we noted in Goodpasture, modifications by agreement without prior court approval "substitute the self-determined interests of one or both of the parents over the court-determined best interests of the child." Goodpasture, 7 Va.App. at 59, 371 S.E.2d at 848.

The emancipation of a child does not constitute an exception to Virginia's decisional law that precludes the court from ordering modification of support prospectively and without its approval. The rule applies even when the emancipation of one child is the proposed catalyst for the modification by agreement, except in one well defined circumstance not applicable here. When an undivided child support award has been made for multiple minor children, the emancipation of a child, except the last remaining in custody, does not permit automatic termination or modification of support. See Eaton v. Eaton, 215 Va. 824, 828 n. 3, 213 S.E.2d 789, 792 n. 3 (1975); see also S.R. Shapiro, Propriety and Effect of Undivided Award for Support of More than One Person, 2 A.L.R.3d 596, § 5 (1965 & Supp.2000).² Although under Eaton, the court's jurisdiction to enforce support awards ends with the child's majority or emancipated status, Eaton does not stand for the general proposition that a child support award addressing the needs of multiple minor children may be automatically and either unilaterally, or by agreement, modified without court approval upon emancipation. Eaton, 215 Va. at 826, 213 S.E.2d at 791.³ The prevailing and well-established principle of law requiring contemporaneous court approval of modifications has not been diminished or eroded by the Commonwealth's public policy favoring "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 (1975). The parties cannot by agreement limit or terminate the court's jurisdiction to make and modify child support awards. See 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."); see also Featherstone v. Brooks, 220 Va. 443, 446, 258 S.E.2d 513, 515 (1979) ("Code § 20-108 gives the divorce court continuing jurisdiction to change or modify its decree concerning the custody and maintenance of minor children, and a contract between husband and wife cannot prevent the court from exercising this power."). "Should circumstances change requiring alteration in the amount of support, a party's remedy is to apply to the court for relief." Goodpasture, 7 Va.App. at 58,371 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) (because "parents cannot contract away their children's rights to support," any provision which impinges upon the right of children to support is void, and a decree which incorporates such provision is likewise void); 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) (reversing support decree which ordered father to pay a percentage of children's education expenses, rather than a specific amount); Keyser v. Keyser, 2 Va.App. 459, 345 S.E.2d 12 (1986) (reversing support decree which provided for automatic increase or decrease in father's obligation according to the percentage increase or decrease of his annual income). As we have stated:

[N]eeds and capacities change as circumstances change and [ ] these changes are not always fairly predictable. Determination of support awards must be based on contemporary circumstances and modified in the future as changes in circumstances occur.

* * *

...