COURT OF APPEALS OF VIRGINIA

Present: Judg e Annunziata, Se nior Judges Du ff and Hodges Argued at Alex andria, Virginia

ROBERT JOHN RIGGINS OPINION BY v. Record No. 2297-99-4 JUDGE ROSEMARI E ANNUNZIATA DECEMBER 12, 2000 MARY LOUISE O'BRIEN

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Jonathan C. Th acher, Judge Kathleen H. MacKay, Judge Jerry M. Phillips (Phi llips, Beckwith, Hall & Chase, on briefs), for appellant. Elizabeth D. Teare (Surovell, Jackson, Colten & Dugan, P.C., on brief), for appellee.

Robert John Riggin s appeals two decisions of the circuit court, one finding hi m liable to Mary Louise O'Brien for $106,137.99 in past due child support and intere st under the parties' support agre ement and the ot her setting th e amount of ongoing monthly ch ild support. Ri ggins contends the trial court (1) erred in interpreting the ch ild support prov isions of the final decree of divorce entere d June 12, 1991 ; (2) erred in finding that the parties did not renegotiate child support pursuant to the provisions of th e final decree; (3) abused its discretion in re fusing to impose monetary sanctions fo r O'Brien's civil contempt in relocating the minor chil dren without permission of the court; (4) erre d by severing the issu e of the on going childsupport paymen ts; (5) erred by granting a non-suit of O'Brien's petition for modificati on of child su pport and visita tion despite Riggins's pendin g interrelated issues ; (6) erred by not considering the Code § 20-108.1 factor s when setting child support; and (7) erred by modifyin g the final decree of divorce to change the emancipation date for term ination of child support. Riggins also seeks ap pellate attorney 's fees. Fo r the reasons that follow, we affirm th e trial court' s rulings.
BACKGROUND The parties marr ied in 1974. After al most fifteen years of marriage and four ch ildren, they separate d in 1989. Under a property settlement ag reement signed by the parties on June 10, 1991, they resolved their outstand ing property distribution issues. They did not resolve the is sues of custody, visitation or child support, and a hearing on those issues wa s scheduled for June 12, 1991. However, prior to the start of the hearing, the parties reached an oral agreement on thos e issues. The terms of their agreement as to child suppor t, custody and vi sitation were set out only in the final decree of divorce, en tered June 12, 1991, which pr ovided in pe rtinent part: ADJUDGED, ORDERE D and DECREED, by agreement of the parties, that the Cross-Pl aintiff, ROBERT JOHN RIGGINS, as and for the support and maintenanc e of the parties' minor children, shall pay unto the Plaintiff, MARY LOUISE RIGGINS, the sum of Three Thousand Two Hundred Fifty Do llars ($3,250. 00) per month on the first day of ea ch month hereafter, commencing on July 1, 1991, and continuing

- 2 -thereafter until said children shall attain the age of eighteen (18) years, marry, become self-support ing, become otherwise emancipated, or die, whicheve r should first occur, there being no ex isting arrearages as of June 12, 1991 ; provided, howe ver, that the amount payable he reunder shall be renegotiated or submitted to a court for adjudication on th e first event of emancipation, as set forth abov e, as to each child . . . . Riggins made the agre ed child support paym ent each month until August 1992, when the parties' eldest chil d reached the age of eighteen. Riggins te stified that he then wrote a letter to O'Brien, indicating th at he was redu cing the amou nt of child support by one-quarter, pursuant to the pa rties' agreement. O'Brien testifie d that there was no "re-ne gotiation" of the amount of child support nor was the amount submit ted to the court. However, it was uncontested th at O'Brien did no t object to the reduced amount of child support and co ntinued to receive the monthly paymen ts for over six years without voic ing any ob jection. In addition, in 19 94, following he r remarriage, O'Brien moved to Kansas with the ch ildren. Riggins test ified that he first learned about the pending reloca tion from his chil dren less than a month before the move took place. Riggins subsequently relocated to New York in Februa ry 1995. The majority of the expenses for visitation were bo rne by Riggins. In 1996, the parties' second oldest chil d, a daughter then age sixteen, left high school and moved into a condominium with two young men. Riggins notifi ed his daughter an d O'Brien that he

- 3 -would not pay ch ild support fo r his daughter under those conditions, as he considered her emancipa ted. Rigg ins made a corresponding re duction in the amount of his monthly child support. In October 1998, O'Br ien filed a peti tion for a rule to show cause alleging th at Riggins was in contempt for his fail ure to pay $3,250 in monthl y child support si nce 1992. Riggin s also filed a petition for a rule to show cause, alle ging that O'Brien's relocation to Kansas violated th e provision for jo int custody. A hearing on these two is sues, plus the issue of prospect ive child support, was set for March 15, 1999. On the March 12, 1999 motions day, O'Brien mo ved to non-suit her petition to modify child support, which th e presiding judg e granted. In order to keep the determinatio n of child support on the docket for the March 15, 1999 hearin g, 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 modifica tion and visita tion from the proceeding. After rece iving the eviden ce, Judge MacK ay issued a final decision on September 15, 19 99, finding Rigg ins liable for $85,332.94 in chil d support arrearage and $20, 805.05 in pre-judgment interest. On August 30, 1999, following a hearing on May 3, 1999, Judge Th acher issued a final decision setting the amount of chil d support. Ri ggins appealed both decisions.

- 4 -I. and II. Renegotiat ion of Child Support In our opinion, the issue of whether the partie s 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 lega l issues presented. Although "public poli cy favors prompt reso lution of disputes concerning the maintenance an d care of mino r children," Morris v. Morris , 216 Va. 457, 459, 219 S.E.2d 864, 86 7 (1975), any such agreements for support, either established at the time of divorce, or for modification post-divorce, mu st be reviewed and approved by a court of law. Id. at 461, 219 S.E.2d at 867 ("[T]he court retains contin uing jurisdiction to modify its de cree as to the maintenance of minor ch ildren, notwiths tanding the ex istence of a contract between the parents."); Scott v. Scott , 12 Va. App. 1245, 1249, 408 S.E.2d 579, 582 (1991) ("[A]gre ement[s] between husband and wife cannot preven t the court from exer cising its power to make and modify chil d support aw ards."). 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

- 5 -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

- 6 -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

- 7 -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."

- 8 -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

- 9 -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 § 20-108 2 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.

- 10 -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 (V a. Ct. App. De c. 12, 2000), we find that the tria l court abused its di scretion in finding O'Brien guilty of civil contempt for her re location to Kansas in 1994. There was no express prohibit ion on relocation in the parties' final decree of divorce, nor wa s there an express requirement that the parties noti fy each other or the court in writing thirty da ys prior to any planned relocation. Code § 20- 124.5, which requires the inclusion of such a condit ion in each order of custody or vi sitation, was en acted in 1994, well after the entry of the part ies' decree. Theref ore, the trial court abused its discreti on in finding O'Br ien in contempt.

- 11 -Accordingly, we find no abuse of discreti on in the tr ial court's refusal to grant Rigg ins greater mo netary sanctions against O'Brien.
IV. Severance Riggins conten ds the trial court er red by permitting a severance of the child support issues from the other issues. As noted below, Riggins did not appeal the tr ial court's decision granting O'Brien's non- suit. The record demonstrates that the trial court did not sever the issue, but refused Ri ggins's request to consolidate hi s newly-filed peti tion for determin ation of child support with the pend ing contempt proceedi ngs. We find no reversible error in th e trial court's refusal to cons olidate these matters into a single hearing. V. Non-suit Riggins also conten ds the trial court er red 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 Riggin s is procedurally barred from pursuing this issue because he did not appeal the trial court's orde r granting the non-suit within thirty days af ter its entry. See Rule 5A:6. VI. Code § 20 -108.1 Factors Riggins contends the trial cour t erred by failin g to consider the statutory fact ors contained in Code § 20-108.1(B ) when setting child support. We find no error.

- 12 -The determinat ion of child support is a matter of disc retion for the trial court, "and such awards will not be reversed on appeal unless plainly wrong or unsupported by the evidence." Although the am ount of child support called for by the guidelines set forth in Code § 20-108 .2 is pres umptively correct, this pr esumption may be rebutted . . . . Ragsdale v. Ragsdale , 30 Va. App. 283, 295, 516 S.E.2d 698, 703 (1999) (citations omit ted). The statute prov ides that "[i]n order to rebut the pres umption, the court shall ma ke written fi ndings in the order, which findin gs 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 cour t's decision to rely only on evidence arising duri ng 1998 or later as th at most relevant to the parties' current circumstances fo r purposes of calculating prospective child support. Based upon the rele vant evidence, the trial court devi ated from the guideline amount by imputing additional income to O' Brien, based upon her mo st recent earnings.
See Code § 20-108.1(B)(3). We find no error in th e trial court's refusal to further devi ate from the guidelin es on the basis of unspecified am ounts of capital ga ins allegedly rece ived by O'Brien upon the sale of her reside nce. See Code § 20-108 .1(B)(7). We also find no error in the trial court's re fusal to include as income amounts O'Brie n received in previous years from her

- 13 -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 contribution s made by Riggins to Uniform Gift to Minor acco unts held for his children. These accounts, wh ich were not controlled by Riggins, were not "independent financial reso urces" of th e children. See Code § 20-108.1 (B)(9). The trial court wa s not required to deviate from the presumptive am ount based upon certain taxes paid in full by Riggins in 1998. See Code § 20-108 .1(B)(18). Si milarly, the trial court was not required to deviate from the presumptive amount based upon supp ort paid by Ri ggins for the da ughter of his new family. See Code § 20-108.1(B )(1). A trial co urt may, but is not required to, consid er support paid for a new family when the failure to do so woul d render application of the guidel ine amount "unjust or inappropriat e." Finally, the tr ial court di d not err in failing to consid er unspecified amou nts of "relocation expenses" paid by Riggins, particularly in light of the fact that the trial court ru led that O'Brien would be ar the tran sportation costs of future visitation. VII. Improper Modi fication of Decree We find no merit in Riggins's cont ention that th e trial court erred by modifying hi s child support obligations to provide for the parties' two youn ger children until th e age of nineteen,

- 14 -pursuant to the provisions of Code § 20 -124.2. No contract between the partie s can deprive chil dren of the su pport to which they are entitl ed by law. See Kelley , 248 Va. at 29 8, 449 S.E.2d at 56. VIII. Appellate Attorney's Fees We decline the part ies' requests for an award of appellate attorneys' fees. See O'Loughlin v. O'Loughlin , 23 Va. App. 690, 479 S.E.2d 98 (1 996). Accordingly, the de cree appealed from is affirmed.

Affirmed.

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