COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Elder 

Argued at Alexandria, Virginia 

LAURA B. CARVER 

 MEMORANDUM OPINION* BY 

v. Record No. 2189-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 MAY 5, 1998 

DONALD LEE CARVER, JR. 

FROM THE CIRCUIT COURT OF FREDERICK COUNTY 

James L. Berry, Judge 

 E. Eugene Gunter for appellant. 

 No brief or argument for appellee. 

 Laura B. Carver (mother) appeals the trial court's order 

requiring that she reimburse child support payments Donald Lee 

Carver, Jr. (father) paid to her for a time period when he had 

physical custody of the child. She contends the effective result 

of the order is a retroactive termination of father's support 

obligation that is contrary to the requirements of Code § 20-108. 

Finding no error, we affirm. 

 I. 

 Father and mother were married June 28, 1980, and one child 

was born of the marriage on May 10, 1981. The parties were 

divorced November 19, 1992. The divorce decree granted sole 

custody to mother and ordered father to pay $100 per week in 

child support commencing October 9, 1992. In June 1995, by 

mutual agreement, the child began living with father, and he 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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stopped paying child support at that time. Father testified that 

when the parties met on June 18, 1995 to transfer physical 

custody, they discussed support but executed no written 

agreement. The essence of the conversation was that mother 

"would pay what she could - Thirty Dollars ($30.00) or so per 

week." 

 Father took no action to legally modify the terms of the 

divorce decree until October 11, 1996, when he filed a petition 

to change the existing court order in the Frederick County 

Juvenile and Domestic Relations District Court (JDR court). 

Notice of the petition for modification was provided to mother on 

October 16, 1996. In his petition, father asserted that the 

child had adjusted well to the current living situation with him 

in Winchester and that he wanted custody changed to avoid the 

anxiety associated with mother's threat to remove the child from 

father's home without warning. By order entered March 6, 1997, 

the JDR court ordered joint legal custody, awarded physical 

custody to father, and terminated father's support obligation as 

of July 1, 1995. Mother appealed the JDR court's termination of 

father's support obligation. 

 On appeal, the trial court found that the JDR court order 

was a modification order under Code § 20-108 which could not 

terminate father's support obligation retroactively. 

Consequently, the trial court found that father was required to 

have made the child support payments of $100 per week for the 
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period from July 1, 1995, when he ceased making payments, through 

October 16, 1996, when mother was notified of the pending 

modification petition. However, "as a matter of equity" the 

trial court ordered mother to "pay the child support payments for 

the period indicated back to [father] on the basis that he was 

the physical custodian of the child during the said period." 

Mother's motions to reconsider and suspend the final decree were 

denied.1

 II. 

 Mother contends the trial court's order that she reimburse 

the accrued child support payments was a "back door" attempt to 

relieve father of his delinquency status. She argues that, as a 

matter of law, the trial court was without the authority to 

terminate father's support obligations prior to October 16, 1996, 

the date mother was notified of the petition for modification. 

 Code § 20-108 provides, in part: 

 No support order may be retroactively 

modified, but may be modified with respect to 

any period during which there is a pending 

petition for modification, but only from the 

date that notice of such petition has been 

given to the responding party. 

"Past due support installments become vested as they accrue and 

are thereafter immune from change. Parties cannot contractually 

 1After Judge Berry heard the trial, he was succeeded by 

Judge John R. Prosser, who entered the order embodying Judge 

Berry's decision. Judge Prosser subsequently denied mother's 

motion to reconsider on the grounds that he "would not reconsider 

a decision made by his predecessor Judge." 
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modify the terms of a support order without the court's 

approval." Goodpasture v. Goodpasture, 7 Va. App. 55, 58, 371 

S.E.2d 845, 847 (1988). "Should circumstances change requiring 

alteration in the amount of support, a party's remedy is to apply 

to the court for relief." Id. (citing Newton v. Newton, 202 Va. 

515, 519, 118 S.E.2d 656, 659 (1961)). A court may not 

retroactively modify a child support obligation. See Code 

§ 20-108; Wilderman v. Wilderman, 25 Va. App. 500, 489 S.E.2d 701 

(1997). 

 However, in Acree v. Acree, 2 Va. App. 151, 342 S.E.2d 68 

(1986), this Court created an "exception to the general rule of 

nonretroactive modification." Goodpasture, 7 Va. App. at 59, 371 

S.E.2d at 847. This case is analogous to the situation in Acree

and is controlled by this rationale. 

 The cases that apply a seemingly inflexible 

rule denying credit for nonconforming support 

payments involve expenditures made during 

short visits or vacations, gifts, clothing, 

or direct payments in cash to the child, 

payments to an educational institution for 

the child's benefit, and overpayments made to 

the wife. The rationale for denying relief 

under those circumstances has been the 

avoidance of continuous trouble and turmoil. 

 In each of the instances cited, to grant 

relief would result in some detriment to the 

custodial parent and child for whose benefit 

the support was to be paid. 

Acree, 2 Va. App. at 157, 342 S.E.2d at 71. Upon finding that 

the father's "undisputed agreement with his wife, whereby he 

assumed permanent custody and total responsibility for the 

support of [the child], had the effect of fully satisfying his 
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support obligation under the divorce decree," id. at 156, 342 

S.E.2d at 70, this Court held that 

 [t]o enforce the letter of the decree after 

its purpose has been served and the parties' 

agreement fully performed would unjustly 

enrich the wife and shock the conscience of 

the average person. Most important, failure 

to enforce the letter of this decree under 

these circumstances will not work to the 

detriment of the child, for whose benefit the 

support was to be paid. The agreement of the 

parties as carried out worked to the benefit 

of the child to the same degree that absolute 

conformity with the terms of the decree would 

have. 

Id. at 158, 342 S.E.2d at 72. 

 As a result, and contrary to wife's contention, 

 [a] court may, when equitable and under 

limited circumstances, allow a party credit 

for non-conforming support payments, provided 

that the non-conforming payment substantially 

satisfies the purpose and function of the 

support award and to do so does not vary the 

support award. 

Commonwealth v. Skeens, 18 Va. App. 154, 158, 442 S.E.2d 432, 435 

(1994). The trial court has "discretion to grant credit, in 

whole or in part, or to deny credit against an arrearage, 

depending upon the circumstances" and in light of "the equities 

of a given situation." Id. at 160, 442 S.E.2d at 436. 

 In the instant case, while mother disputes the existence of 

an agreement for a permanent change, the parties fully complied 

with the change in physical custody for the time at issue - a 

period at the time of the hearing in excess of fifteen months. 

The resulting arrangement, that father "assum[ed] physical 
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custody and total responsibility for the support of the child," 

fulfilled his obligation under the decree. Acree, 2 Va. App. at 

158, 342 S.E.2d at 72. Thus the trial court had discretion to 

exercise its equity power and to credit father for his 

nonconforming payments. The court ordered father to pay support 

and ordered mother to pay it back, an implicit means of crediting 

father for his expenditures in support of the child in his 

custody. These orders achieved a result that was within the 

court's discretionary use of its equity power. 

 Finding no error, we affirm. 

 Affirmed.