Shoup v. Shoup, Record No. 0098-00-4.

• Decision Date: 27 December 2001
• Docket Number: Record No. 0098-00-4.
• Parties: JoFrancis E. SHOUP v. Heidi S. SHOUP.
• Court: Virginia Court of Appeals

556 S.E.2d 783

37 Va. App. 240

JoFrancis E. SHOUP v. Heidi S. SHOUP.

Record No. 0098-00-4.

Court of Appeals of Virginia, Richmond.

December 27, 2001.

Betty A. Thompson (Law Offices of Betty A. Thompson, Ltd., on briefs), Arlington, for appellant.

Valerie Szabo (Valerie Szabo, P.L.L.C., on brief), Arlington, for appellee.

Present: FITZPATRICK, C.J., BENTON, ELDER, BRAY, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS and AGEE, JJ.

ANNUNZIATA, Judge.

This matter comes before the Court on a rehearing en banc from a decision of a divided panel rendered February 27, 2001. The panel affirmed the trial court's ruling that a provision of the parties' child support agreement, which had been incorporated into the final decree of divorce, was void and unenforceable. The provision that the trial court declined to enforce provided for modification of child support upon emancipation of each of the parties' children, according to a standard set forth in the agreement. The panel also reversed the trial court's enforcement of a provision permitting modification upon changes in child care expenses, and found Francis E. Shoup ("father") in contempt and liable to Heidi S. Shoup ("mother") for arrearages of $33,838.20 plus interest and attorney's fees. We granted father's petition for a rehearing en banc, stayed the mandate of that decision, and reinstated the appeal. Upon rehearing en banc, we find the decree's provisions for future modification by agreement of the parties valid and enforceable and hold that the trial court erred in its calculation of arrearages and in finding the father in contempt of its support order. We also hold that the trial court properly enforced the provision for modification upon a change in child-care costs. Therefore, we affirm in part and reverse and remand in part.

I. 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. He continued making payments for childcare costs, although the mother, beginning in October, 1995 incurred none. In May, 1997, the parties' second child, Elliot, graduated from high school and turned eighteen one month later. 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 in his support payments from October, 1995 through May, 1999 because a support order may not be retroactively modified by the parties or without court approval.² 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 at the judgment rate. It also awarded mother her attorney's fees.

II. Analysis

Father raised the following issues for determination en banc: (1) whether the final decree which incorporated the parties' agreement pursuant to statute should have been upheld, including the provisions for future modification of child support; (2) whether the court erred by ignoring the statutory guidelines in determining child support arrearages where the incorporated agreement provided for the application of guidelines in computing child support in the event of a change of circumstances; (3) whether the panel's holding that the Shoup divorce decree was a nullity and void destroyed its vitality as an enforceable order and thereby relieved father from any alleged arrearages and from a charge of contempt; and (4) whether the trial court erred in ordering an award of attorney's fees to appellee. Mother argues that the child support modification provisions did not, in fact, authorize modification of child support payments without court approval and that a provision purporting to do so would improperly undermine the authority of the court to set child support awards. The issues raised by the parties in this case bring into sharp relief the foundational principles of Virginia divorce law regarding the divorce court's jurisdiction to determine child support and the rights of the parties to resolve those issues by agreement. Divorce and its incidents are matters rooted in and reflective of a state's public policy. state is "directly interested in determining the status of its own citizens, and to this end can and does establish and enforce its policy in relation to marriage and divorce...." Heflinger v. Heflinger, 136 Va. 289, 308, 118 S.E. 316, 322 (1923). Consistent with this interest, the General Assembly enacted a statutory basis for the grant of divorce in the Commonwealth. Jackson v. Jackson, 211 Va. 718, 719, 180 S.E.2d 500, 500 (1971); Code § 20-107.2. The judicial authority granted in divorce matters encompasses the authority to determine child support.Code § 20-79.1.³

Under Virginia law, the grant of a divorce petition is a purely judicial function grounded in statute. Jackson, 211 Va. at 719, 180 S.E.2d at 500. Accordingly, the parties cannot, by agreement, effectuate a divorce. Foster v. Foster, 195 Va. 102, 104, S.E.2d 471, 473 (1953). However, the parties can reach agreement on all other Divorcing parents may and, indeed, are encouraged under Virginia public policy, to reach agreement respecting the care and support of their minor children. Morris v. Morris, 216 Va. 457, 459, 219 S.E.2d 864, 867 (1975) ("[P]ublic policy favors prompt resolution of disputes concerning the maintenance and care of minor children .... Voluntary, court-approved agreements promote that policy and should be,encouraged."); Richardson v. Richardson, 10 Va.App. 391, 399, 392 S.E.2d 688, 692 (1990) ("Settlement agreements between parties to [divorce] lawsuits are designed to put an end to litigation and are favored by the law.)" (citing Stamie E. Co. v. County of Hanover, 231 Va. 21, 26, 341 S.E.2d 174, 178 (1986)); Code § 20-109.1.

A substantial body of law has been developed explicating the principles that govern court's jurisdiction to enter child support awards, as well as those that govern the parties' right to reach agreement on the issue. In resolving the issues in the case before us, it is important to understand how the principles that govern the court's jurisdiction to enter child support awards impact the parties' right to reach agreement on the issue. While the two sets of principles often intersect, on certain questions, the principles of one are independent from and unrelated to the function and dictate of the other.

Where the court's jurisdiction to set support has been invoked, either in the absence of an agreement or where the parties seek to have their agreement of child support reviewed and considered by the court in the course of its determination of a proper award, the court has been granted broad discretion to make an award. Franklin v. Commonwealth, Dept. of Social Servs., 27 Va.App. 136, 143, 497 S.E.2d 881, 885 (1998). However, its exercise of discretion is not unfettered, as numerous decisions of the Virginia appellate courts make manifest.

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.

Watkinson v. Henley, 13 Va.App. 151, 158-59, 409 S.E.2d 470, 474 (1991).

In addition, the trial court must base an award for child support on contemporaneouse events. Keyser v. Keyser, 2 Va.App. 459, 345 S.E.2d 12 (1986). It may not award support prospectively, Solomond v. Ball, 22 Va.App. 385, 470 S.E,2d 157 (1996), including upon the emancipation of one of many children. See Johnson v. Johnson, 1 Va.App. 330, 333, 338 S.E.2d 353, 355 (1986) (where trial court awarded unitary support to children, in order to reduce payments to the remaining children upon the emancipation of the oldest child, the husband must "apply to the court for a modification of the decree upon a change of condition"). It may not modify an award retroactively. Code § 20-108; Bennett v. Commonwealth, 22 Va.App. 684, 696, 472 S.E.2d 668, 674 (1996) (citing Cofer v. Cofer, 205 Va. 834, 838-39, 140 S.E.2d 663, 666-67 (1965)).

A review of the relevant cases makes clear that these legal...