COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

BARRY LYNN ARTHUR 

 MEMORANDUM OPINION*

v. Record No. 1762-98-3 PER CURIAM 

 FEBRUARY 2, 1999 

COMMONWEALTH OF VIRGINIA, 

 DEPARTMENT OF SOCIAL SERVICES, 

 DIVISION OF CHILD SUPPORT ENFORCEMENT, 

ex rel. SUSAN J. SMITH 

FROM THE CIRCUIT COURT OF BEDFORD COUNTY 

James W. Updike, Jr., Judge 

 (J. Leyburn Mosby, Jr., on brief), for 

appellant. 

 (Mark L. Earley, Attorney General; Ashley L. 

Taylor, Jr., Deputy Attorney General; Robert 

B. Cousins, Jr., Senior Assistant Attorney 

General; Craig M. Burshem, Regional Special 

Counsel; Jack A. Maxwell, Special Counsel, on 

brief), for appellee. 

 Barry L. Arthur appeals the judgment of the trial court 

holding him liable for past due child support owed to Susan 

Smith. Arthur contends that the trial court erred because: (1) 

he and Smith agreed to terminate his child support obligation; 

(2) the claim for past due child support is barred by laches or 

the statute of limitations; (3) the claim for past due child 

support is barred under the doctrine of estoppel; and (4) any 

interest awarded should accrue only from the date of the trial 

court's judgment. Upon reviewing the record and briefs of the 

parties, we conclude that this appeal is without merit. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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Accordingly, we summarily affirm the judgment of the trial court. 

See Rule 5A:27. 

 On appeal, 

 we view [the] evidence and all reasonable 

inferences in the light most favorable to the 

prevailing party below. Where, as here, the 

court hears the evidence ore tenus, its 

finding is entitled to great weight and will 

not be disturbed on appeal unless plainly 

wrong or without evidence to support it. 

Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 

15, 20, 348 S.E.2d 13, 16 (1986). 

Background

 The parties were divorced by decree entered January 1, 1980. 

 The decree ruled that there was one child born of the marriage. 

 On February 18, 1980, the Bedford County Juvenile and Domestic 

Relations District Court ordered Arthur to pay child support. 

Two months later, Smith's attorney wrote to the clerk of the 

juvenile court that Smith "wishes to release [Arthur] of all past 

and future child support payments" and that Arthur "has agreed to 

give up all visitation rights to the child." Although that 

attorney drafted an order to that effect, the order was never 

entered. 

 In 1997, Smith filed a motion seeking to recover $21,970 in 

past child support due under the unmodified support order. 

Arthur contended that the parties had agreed to modify the order, 

exchanging a waiver of his child support obligation for a waiver 

of his visitation rights. The Division of Child Support 
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Enforcement (DCSE) intervened in the matter on behalf of Smith. 

The trial court entered judgment against Arthur in the amount of 

$22,835, plus interest at the judgment rate accruing as of July 

1, 1995. 

Agreement

 Arthur contends that the trial court erred by failing to 

enforce the parties' agreement under which Smith waived all child 

support and Arthur waived his visitation rights. We find no 

error. No order incorporating the purported agreement was ever 

entered. The trial court did not err in refusing to give effect 

to a proposed order that was never entered. 

 Assuming arguendo that an agreement had been reached, the 

Supreme Court has held that "parents cannot contract away their 

children's rights to support nor can a court be precluded by 

agreement from exercising its power to decree child support." 

Kelley v. Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 56 (1994). A 

child's right to support from his or her parents "cannot be 

impinged by contract, and any contract purporting to do so is 

facially illegal and void." Id. at 299, 449 S.E.2d at 57. The 

agreement to waive Arthur's obligation to support the child in 

exchange for a waiver of his visitation rights, even if executed, 

was unenforceable. 

 Arthur cites Acree v. Acree, 2 Va. App. 151, 342 S.E.2d 68 

(1986), and Wilderman v. Wilderman, 25 Va. App. 500, 489 S.E.2d 

701 (1997), as authority supporting his position that he is 
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entitled to relief. Those cases are clearly distinguishable and 

not controlling. They involved narrow, fact-specific instances 

where parents agreed to modify their support obligations in ways 

that continued to benefit the children for whom the support was 

paid. No such benefit arose in the circumstances of this case. 

Here, the purported agreement would have denied the child support 

from, and contact with, Arthur throughout the years. 

Laches and Statute of Limitations

 Arthur contends that Smith is barred by laches or, 

alternatively, the statute of limitations from seeking to recover 

the past due child support. "Laches is an equitable defense, but 

'"even a court of equity, in an effort to do equity, cannot 

disregard the provisions of a lawful decree . . . ."'" 

Richardson v. Moore, 217 Va. 422, 423-24, 229 S.E.2d 864, 866 

(1976) (quoting Fearon v. Fearon, 207 Va. 927, 931, 154 S.E.2d 

165, 168 (1967)). The trial court could not disregard the 

provisions of the 1980 support decree. Thus, it did not err in 

denying Arthur's laches defense. 

 Similarly, Smith's claim for outstanding child support is 

not barred by any statute of limitations. In Bennett v. 

Commonwealth ex rel. Waters, 15 Va. App. 135, 422 S.E.2d 458 

(1992), we distinguished a "money judgment" from an ongoing 

obligation to pay spousal support pursuant to a court order. 

 When such a . . . support order is initially 

entered, it establishes the monetary amount 

of an ongoing support obligation. It is in 

that sense an order requiring the payment of 

money . . . . It is not, and cannot be, a 
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judgment for a sum certain or liquidated 

amount of money. Time and circumstances of 

the parties will determine ultimately the 

total amount to be paid under an initial, or 

subsequently modified, . . . support order. 

Moreover, because such a . . . support order 

is ongoing and unliquidated, it is 

essentially different from a money judgment, 

which adjudicates a sum certain due and 

owing. 

Id. at 141-42, 422 S.E.2d at 462. Thus, an order to pay the 

ongoing obligation of child support is not a money judgment, 

until an unpaid amount has been determined and reduced to a 

"money judgment." Therefore, Code § 8.01-251, cited by Arthur, 

which sets a twenty-year statute of limitations on the 

enforcement of "money judgments," does not bar Smith from 

recovering the child support arrearage. 

Estoppel

 Arthur also contends that Smith is equitably and 

collaterally estopped from seeking to recover the child support 

arrearage. We disagree. "If without legal excuse one does not 

comply with a lawful decree requiring him to pay support monies, 

he does not meet the requirements of [the] . . . doctrine [of 

estoppel] and may not use 'equity' as a defense." Martin v. 

Bales, 7 Va. App. 141, 146-47, 371 S.E.2d 823, 826 (1988). There 

is no merit in Arthur's contention that Smith was collaterally 

estopped from pursuing the support arrearage because the juvenile 

and domestic relations district court dismissed the criminal 

motion to show cause. The fact that Arthur may not have 

contemptuously disregarded the support order does not relieve him 
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of his civil obligation to support his child. Smith is not 

collaterally estopped by an unsuccessful criminal contempt 

prosecution from pursuing a civil action. 

 For at least 118 years, [the Supreme] Court, 

in dealing with the preclusive effect of a 

criminal judgment upon a subsequent civil 

action arising from the same transaction, has 

recognized that the criminal charge and the 

civil action, "though founded on the same 

fact, are distinct remedies, prosecuted by 

different parties and for different 

purposes," and that there is a "want of 

mutuality." 

Selected Risks Ins. Co. v. Dean, 233 Va. 260, 263-64, 355 S.E.2d 

579, 580-81 (1987) (citation omitted). 

Interest

 Code § 20-78.2 provides, in pertinent part, that an order of 

support arrearage "shall also include an amount for interest on 

the arrearage at the judgment interest rate as established by 

[Code] § 6.1-330.54 unless the obligee, in a writing submitted to 

the court, waives the collection of interest." (Emphasis added.) 

 Code § 63.1-267 provides that "[i]nterest at the judgment 

interest rate as established by [Code] § 6.1-330.54 on any 

arrearage pursuant to an order being enforced by the Department 

[of Social Services] pursuant to this chapter shall be collected 

by the Commissioner except in the case of a minor obligor during 

the period of his minority." (Emphasis added.) These 

provisions, as amended, were effective July 1, 1995. The trial 

court did not err in awarding interest to Smith as provided by 

statute. 
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 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.