COURT OF APPEALS OF VIRGINIA 

Present: Judge Annunziata, Senior Judges Duff and Hodges 

Argued at Alexandria, Virginia 

ROBERT JOHN RIGGINS 

 OPINION BY 

v. Record No. 2297-99-4 JUDGE ROSEMARIE ANNUNZIATA 

 DECEMBER 12, 2000 

MARY LOUISE O'BRIEN 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jonathan C. Thacher, Judge 

Kathleen H. MacKay, Judge 

 Jerry M. Phillips (Phillips, Beckwith, Hall & 

Chase, on briefs), for appellant. 

 Elizabeth D. Teare (Surovell, Jackson, 

Colten & Dugan, P.C., on brief), for 

appellee. 

 Robert John Riggins appeals two decisions of the circuit 

court, one finding him liable to Mary Louise O'Brien for 

$106,137.99 in past due child support and interest under the 

parties' support agreement and the other setting the amount of 

ongoing monthly child support. Riggins contends the trial court 

(1) erred in interpreting the child support provisions of the 

final decree of divorce entered June 12, 1991; (2) erred in 

finding that the parties did not renegotiate child support 

pursuant to the provisions of the final decree; (3) abused its 

discretion in refusing to impose monetary sanctions for O'Brien's 

civil contempt in relocating the minor children without permission 

of the court; (4) erred by severing the issue of the ongoing child 
support payments; (5) erred by granting a non-suit of O'Brien's 

petition for modification of child support and visitation despite 

Riggins's pending interrelated issues; (6) erred by not 

considering the Code § 20-108.1 factors when setting child 

support; and (7) erred by modifying the final decree of divorce to 

change the emancipation date for termination of child support. 

Riggins also seeks appellate attorney's fees. For the reasons 

that follow, we affirm the trial court's rulings. 

BACKGROUND

 The parties married in 1974. After almost fifteen years of 

marriage and four children, they separated in 1989. Under a 

property settlement agreement signed by the parties on June 10, 

1991, they resolved their outstanding property distribution 

issues. They did not resolve the issues of custody, visitation or 

child support, and a hearing on those issues was scheduled for 

June 12, 1991. However, prior to the start of the hearing, the 

parties reached an oral agreement on those issues. The terms of 

their agreement as to child support, custody and visitation were 

set out only in the final decree of divorce, entered June 12, 

1991, which provided in pertinent part: 

ADJUDGED, ORDERED and DECREED, by agreement 

of the parties, that the Cross-Plaintiff, 

ROBERT JOHN RIGGINS, as and for the support 

and maintenance of the parties' minor 

children, shall pay unto the Plaintiff, MARY 

LOUISE RIGGINS, the sum of Three Thousand Two 

Hundred Fifty Dollars ($3,250.00) per month 

on the first day of each month hereafter, 

commencing on July 1, 1991, and continuing 

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thereafter until said children shall attain 

the age of eighteen (18) years, marry, become 

self-supporting, become otherwise 

emancipated, or die, whichever should first 

occur, there being no existing arrearages as 

of June 12, 1991; provided, however, that the 

amount payable hereunder shall be 

renegotiated or submitted to a court for 

adjudication on the first event of 

emancipation, as set forth above, as to each 

child . . . . 

Riggins made the agreed child support payment each month until 

August 1992, when the parties' eldest child reached the age of 

eighteen. Riggins testified that he then wrote a letter to 

O'Brien, indicating that he was reducing the amount of child 

support by one-quarter, pursuant to the parties' agreement. 

O'Brien testified that there was no "re-negotiation" of the amount 

of child support nor was the amount submitted to the court. 

However, it was uncontested that O'Brien did not object to the 

reduced amount of child support and continued to receive the 

monthly payments for over six years without voicing any objection. 

 In addition, in 1994, following her remarriage, O'Brien moved 

to Kansas with the children. Riggins testified that he first 

learned about the pending relocation from his children less than a 

month before the move took place. Riggins subsequently relocated 

to New York in February 1995. The majority of the expenses for 

visitation were borne by Riggins. 

 In 1996, the parties' second oldest child, a daughter then 

age sixteen, left high school and moved into a condominium with 

two young men. Riggins notified his daughter and O'Brien that he 

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would not pay child support for his daughter under those 

conditions, as he considered her emancipated. Riggins made a 

corresponding reduction in the amount of his monthly child 

support. 

 In October 1998, O'Brien filed a petition for a rule to show 

cause alleging that Riggins was in contempt for his failure to pay 

$3,250 in monthly child support since 1992. Riggins also filed a 

petition for a rule to show cause, alleging that O'Brien's 

relocation to Kansas violated the provision for joint custody. A 

hearing on these two issues, plus the issue of prospective child 

support, was set for March 15, 1999. On the March 12, 1999 

motions day, O'Brien moved to non-suit her petition to modify 

child support, which the presiding judge granted. In order to 

keep the determination of child support on the docket for the 

March 15, 1999 hearing, Riggins filed his own petition seeking 

modification of child support and visitation. At the hearing, 

however, Judge MacKay ruled that O'Brien's non-suit removed the 

issues of child support modification and visitation from the 

proceeding. After receiving the evidence, Judge MacKay issued a 

final decision on September 15, 1999, finding Riggins liable for 

$85,332.94 in child support arrearage and $20,805.05 in 

pre-judgment interest. On August 30, 1999, following a hearing on 

May 3, 1999, Judge Thacher issued a final decision setting the 

amount of child support. Riggins appealed both decisions. 

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I. and II. Renegotiation of Child Support

 In our opinion, the issue of whether the parties renegotiated 

the child support upon the eldest child reaching majority and 

again upon the daughter quitting high school and moving out of her 

mother's home is not dispositive of the legal issues presented. 

 Although "public policy favors 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), any such 

agreements for support, either established at the time of divorce, 

or for modification post-divorce, must be reviewed and approved by 

a court of law. Id. at 461, 219 S.E.2d at 867 ("[T]he court 

retains continuing jurisdiction to modify its decree as to the 

maintenance of minor children, notwithstanding the existence of a 

contract between the parents."); 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."). 

Following the Virginia Supreme Court's decision in Morris, 

we held in Goodpasture v. Goodpasture, 7 Va. App. 55, 371 S.E.2d 

845 (1988), that "[p]arties cannot contractually modify the 

terms of a support order without the court's approval. . . . 

Should circumstances change requiring alteration in the amount 

of support, a party's remedy is to apply to the court for 

relief." Id. at 58, 371 S.E.2d at 847; see also Kelley v. 

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

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have approved specific procedures to be followed by the trial 

court in its determination of whether to ratify, affirm and 

incorporate an agreement which sets child support. In Watkinson 

v. Henley, 13 Va. App. 151, 409 S.E.2d 470 (1991), we held that 

the agreed amount must be evaluated relative to the factors set 

forth in Code § 20-108.1 as follows: 

[W]here parents have agreed upon an amount, 

or agreed upon other provisions, for the 

support and maintenance of a child, the 

trial court must consider the provisions of 

the agreement, that relate to the factors in 

Code §§ 20-107.2 and 20-108.1 [now contained 

exclusively in § 20-108.1], in deciding 

whether the presumptive amount would be 

unjust or inappropriate in a particular 

case. In so doing, the trial court must

consider whether the agreed provisions for 

the child would better serve the interest or 

"equities" for the parents and children. 

Code § 20-107.2(2)(h) [now 

§ 20-108.1(B)(18)]. 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. 

Furthermore, we hold that if the trial court 

finds that the presumptive amount is unjust 

or inappropriate because the provisions in a 

separation agreement serve the best interest 

of the child, the court may vary from the 

guidelines by ordering support be paid in an 

amount equal to the benefits provided for in 

the contract. Alternately, the court may, 

rather than judicially set support, elect to 

affirm, ratify and incorporate by reference 

the agreement between the parties, or any 

provisions thereof, concerning the 

maintenance and support of the minor 

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children, or establish or impose any other 

condition or consideration, monetary or 

nonmonetary. 

Id. at 158-59, 409 S.E.2d at 474 (citations omitted). Accord

Spagnolo v. Spagnolo, 20 Va. App. 736, 460 S.E.2d 616 (1995) 

(reversing the trial court's failure to follow the parties' 

agreement, where the record indicated that the trial judge 

failed to adequately consider the best interests of the child, 

as the judge neither considered the entire package of benefits 

available to the child as set forth in the support agreement nor 

compared the relative merits of the support agreement to the 

statutory support guideline amount). 

 Because the "best interest of the child . . . is the 

paramount and guiding principle in setting child support," 

Watkinson, 13 Va. App. at 158, 409 S.E.2d at 474, the need for 

court approval of agreements reached by the parties to modify 

the amount of support to be paid has neither been eliminated 

from the paradigm established for determination of child 

support, nor has it been subordinated to contract principles or 

public policy considerations in favor of the resolution of 

disputes by the parties themselves. See 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." (citation 

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omitted)). Furthermore, the principle is applicable to the 

court’s consideration of the child support amount established 

both by agreements reached in conjunction with divorce and 

post-divorce. See id.; Watkinson, 13 Va. App. at 158-59, 409 

S.E.2d at 474; see also Acree v. Acree, 2 Va. App. 151, 342 

S.E.2d 68 (1986).1 There is no principled basis upon which to 

conclude that where the law requires a judicial determination of 

the best interests of the child initially, that such a 

determination is no longer necessary when a change is sought, by 

whatever means. 

 In Acree, we made clear that where only the form or method

of the child support payment, and not the amount, is modified by 

agreement of the parties, such modification may be proper and 

court approval may be obtained post facto. In such cases, the 

total amount of support to be paid has not been modified, and 

subsequent court approval of the change does not constitute an 

improper retroactive modification of the child support payment 

 1

 In Acree, we held that "[b]ecause of the unique facts" of 

that case, the father should be awarded credit for his 

non-conforming payments. 2 Va. App. at 152, 342 S.E.2d at 68. 

We found that the father had not altered the amount of support 

that he had paid, but rather he had altered the method of 

payment. We noted that "[t]he agreement of the parties as 

carried out worked to the benefit of the child to the same 

degree as absolute conformity with the terms of the decree would 

have." Id. at 158, 342 S.E.2d at 72. Here, the parties 

modified the amount of the award, not merely the method of 

payment, and it cannot be said the new agreement worked to the 

benefit of the remaining minor children "to the same degree as 

absolute conformity with the terms of the decree would have." 

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decreed. See Acree, 2 Va. App. at 157-58, 342 S.E.2d at 71; see 

also Code § 20-108. 

In the instant case, even if the parties modified by 

agreement the amount to be paid in support of the minor 

children, upon the emancipation of two of their children, their 

agreement resulted in diminished child support payments to the 

minor children who remained in the mother's custody. Such a 

reduction in support by agreement, without the court's approval, 

is in clear contravention of Virginia law and public policy. 

Goodpasture, 7 Va. App. at 59, 371 S.E.2d at 848 (to allow the 

parties to modify by agreement the amount of support owed 

without prior court approval "would substitute the 

self-determined interests of one or both of the parents over the 

court-determined best interests of the child"); see also 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); cf. Acree, 2 Va. App. 151, 342 S.E.2d 68. Thus, unlike 

the parties in Acree, the parties in this case modified the 

amount of the award, not merely the method of payment. As such, 

we cannot say that the new agreement reducing support worked to 

the benefit of the remaining minor children "to the same degree 

as absolute conformity with the terms of the decree would have." 

Acree, 2 Va. App. at 158, 342 S.E.2d at 72. 

It is contended that because the divorce decree itself 

incorporated the parties' agreement and ordered that such 

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prospective modifications of child support were to be 

"renegotiated," any resulting modification is consistent with 

the court's final order and is, therefore, proper. We disagree. 

In our judgment, such an order is violative of Code § 20-1082 and 

is, therefore, ineffective. Not only does the order purport to 

allow retroactive reduction of the child support amount by 

agreement of the parties in the absence of court review and 

approval, it contravenes an equally important principle of law 

which makes invalid a prospective modification of child support. 

See Keyser v. Keyser, 2 Va. App. 459, 345 S.E.2d 12 (1986). As 

we stated in Keyser: 

[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. 

* * * * * * * 

 2

 The court may, from time to time after 

 decreeing as provided in 

 § 20-107.2 . . . revise and alter such 

 decree concerning the care, custody, and 

 maintenance of the children and make a new 

 decree concerning the same, as the 

 circumstances of the parents and the benefit 

 of the children may require. . . . 

* * * * * * * 

No support order may be retroactively 

modified . . . . 

Code § 20-108. 

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The statutory scheme provided by the General 

Assembly does not contemplate automatic 

changes or escalator clauses. 

Id. at 461-62, 345 S.E.2d at 13-14 (citations omitted). 

 In short, whether the court's decree is seen as one which 

allows the parties to retroactively modify the child support 

amount by agreement, or do so prospectively, in our judgment, 

such a decree is void and ineffective. Kelley, 248 Va. at 299, 

449 S.E.2d at 57 ("[T]he rights of children to support and 

maintenance . . . cannot be impinged by contract, and any 

contract purporting to do so is facially illegal and 

void. . . . [A] void judgment may be attacked and vacated in 

any court at any time, directly or collaterally."). 

III. Refusal to Grant Monetary Sanctions

 For the reasons set out more fully in our memorandum opinion 

in O'Brien v. Riggins, No. 2421-99-4 (Va. Ct. App. Dec. 12, 2000), 

we find that the trial court abused its discretion in finding 

O'Brien guilty of civil contempt for her relocation to Kansas in 

1994. There was no express prohibition on relocation in the 

parties' final decree of divorce, nor was there an express 

requirement that the parties notify each other or the court in 

writing thirty days prior to any planned relocation. Code § 20-

124.5, which requires the inclusion of such a condition in each 

order of custody or visitation, was enacted in 1994, well after 

the entry of the parties' decree. Therefore, the trial court 

abused its discretion in finding O'Brien in contempt. 

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Accordingly, we find no abuse of discretion in the trial court's 

refusal to grant Riggins greater monetary sanctions against 

O'Brien. 

IV. Severance

 Riggins contends the trial court erred by permitting a 

severance of the child support issues from the other issues. As 

noted below, Riggins did not appeal the trial court's decision 

granting O'Brien's non-suit. The record demonstrates that the 

trial court did not sever the issue, but refused Riggins's request 

to consolidate his newly-filed petition for determination of child 

support with the pending contempt proceedings. We find no 

reversible error in the trial court's refusal to consolidate these 

matters into a single hearing. 

V. Non-suit

 Riggins also contends the trial court erred when it granted 

O'Brien's voluntary non-suit. Code § 8.01-380(A) and (B) provide 

that a party may take one timely-filed non-suit as a matter of 

right. See generally Nash v. Jewell, 227 Va. 230, 315 S.E.2d 825 

(1984). We find Riggins is procedurally barred from pursuing this 

issue because he did not appeal the trial court's order granting 

the non-suit within thirty days after its entry. See Rule 5A:6. 

VI. Code § 20-108.1 Factors

 Riggins contends the trial court erred by failing to consider 

the statutory factors contained in Code § 20-108.1(B) when setting 

child support. We find no error. 

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The determination of child support is a 

matter of discretion for the trial court, 

"and such awards will not be reversed on 

appeal unless plainly wrong or unsupported by 

the evidence." Although the amount of child 

support called for by the guidelines set 

forth in Code § 20-108.2 is presumptively 

correct, this presumption may be 

rebutted . . . . 

Ragsdale v. Ragsdale, 30 Va. App. 283, 295, 516 S.E.2d 698, 703 

(1999) (citations omitted). The statute provides that "[i]n order 

to rebut the presumption, the court shall make written findings in 

the order, which findings may be incorporated by reference, that 

the application of such guidelines would be unjust or 

inappropriate in a particular case." Code § 20-108.1(B); see

Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 

(1991). 

 We find no error in the trial court's decision to rely only 

on evidence arising during 1998 or later as that most relevant to 

the parties' current circumstances for purposes of calculating 

prospective child support. Based upon the relevant evidence, the 

trial court deviated from the guideline amount by imputing 

additional income to O'Brien, based upon her most recent earnings. 

See Code § 20-108.1(B)(3). We find no error in the trial court's 

refusal to further deviate from the guidelines on the basis of 

unspecified amounts of capital gains allegedly received by O'Brien 

upon the sale of her residence. See Code § 20-108.1(B)(7). We 

also find no error in the trial court's refusal to include as 

income amounts O'Brien received in previous years from her 

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husband. Cf. Orlandi v. Orlandi, 23 Va. App. 21, 29, 473 S.E.2d 

716, 722 (1996). 

 Evidence supports the trial court's refusal to deviate from 

the guidelines on the basis of certain contributions made by 

Riggins to Uniform Gift to Minor accounts held for his children. 

These accounts, which were not controlled by Riggins, were not 

"independent financial resources" of the children. See Code 

§ 20-108.1(B)(9). 

 The trial court was not required to deviate from the 

presumptive amount based upon certain taxes paid in full by 

Riggins in 1998. See Code § 20-108.1(B)(18). Similarly, the 

trial court was not required to deviate from the presumptive 

amount based upon support paid by Riggins for the daughter of his 

new family. See Code § 20-108.1(B)(1). A trial court may, but is 

not required to, consider support paid for a new family when the 

failure to do so would render application of the guideline amount 

"unjust or inappropriate." Finally, the trial court did not err 

in failing to consider unspecified amounts of "relocation 

expenses" paid by Riggins, particularly in light of the fact that 

the trial court ruled that O'Brien would bear the transportation 

costs of future visitation. 

VII. Improper Modification of Decree

 We find no merit in Riggins's contention that the trial court 

erred by modifying his child support obligations to provide for 

the parties' two younger children until the age of nineteen, 

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pursuant to the provisions of Code § 20-124.2. No contract 

between the parties can deprive children of the support to which 

they are entitled by law. See Kelley, 248 Va. at 298, 449 S.E.2d 

at 56. 

VIII. Appellate Attorney's Fees

 We decline the parties' requests for an award of appellate 

attorneys' fees. See O'Loughlin v. O'Loughlin, 23 Va. App. 690, 

479 S.E.2d 98 (1996). Accordingly, the decree appealed from is 

affirmed. 

 Affirmed.

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