COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

PEDRO F. BECERRA-CELY 

 MEMORANDUM OPINION*

v. Record No. 1798-96-1 BY JUDGE JOSEPH E. BAKER 

 APRIL 15, 1997 

JUDY AMICK-BECERRA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Kenneth N. Whitehurst, Jr., Judge 

 James A. Evans (Dinsmore, Evans & Bryant, on 

brief), for appellant. 

 Paul M. Lipkin (Goldblatt, Lipkin & Cohen, 

P.C., on brief), for appellee. 

 Pedro F. Becerra-Cely (husband) appeals from a decree of 

divorce entered by the Circuit Court of the City of Virginia 

Beach (trial court). Husband contends that the trial court erred 

in granting Judy Amick-Becerra (wife) sole custody of their minor 

child, and in limiting husband's visitation such that he may not 

have overnight visitation with their child. Husband further 

asserts that the trial court erred in awarding wife $446 monthly 

child support and in holding that husband was in arrears in 

support payments in the sum of $19,246. 

 As the parties are familiar with the record, we recite only 

those facts necessary to an understanding of our opinion. The 

judgment of the trial court is presumed correct, and the burden 

is on the party alleging reversible error to show by the record 

 

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

designated for publication. 
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that reversal is the remedy to which he or she is entitled. 

Steinberg v. Steinberg, 11 Va. App. 323, 326, 398 S.E.2d 507, 508 

(1990). We will not set aside the trial court's judgment unless 

the judgment is plainly wrong or without evidence to support it. 

Simmons v. Simmons, 1 Va. App. 358, 361, 339 S.E.2d 198, 199 

(1986). 

I. and II. Custody and Visitation 

 The parties married on July 13, 1982 and separated on August 

31, 1994. The record establishes that husband was having an 

adulterous affair with Melissa Gavrish during the parties' 

marriage. Gavrish gave birth to a child by husband and was 

pregnant by him with a second child at the time of the parties' 

divorce. The trial court found that husband committed adultery, 

and the record supports that finding. 

 Two children were born of the parties' marriage, one having 

died after the parties separated. Sole custody of the surviving 

child, age nine, was awarded to wife with the right of reasonable 

visitation to husband; however, husband was denied overnight 

visitation. The record discloses that husband intended to move 

to Ireland with Gavrish and the children born of her affair with 

husband. In matters of custody and visitation, the best 

interests of the custodial child are always paramount and within 

the sound discretion of the trial court. The trial court's 

decision thereon will not be reversed in the absence of a showing 

of abuse of discretion. Under the facts contained in this 
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record, no abuse of discretion has been shown. 

III. Child Support 

 In computing the amount of child support, the trial court 

accepted the commissioner's report, which included a guideline 

worksheet that determined husband's monthly earnings to be 

$3,583, and accordingly ordered monthly support of $446.1

 The 

record does not support the trial court's finding with respect to 

 husband's monthly earnings. The last annual earnings of husband 

shown by this record are approximately $27,000 which he was not 

earning at the time this matter was heard below. The only monies 

shown by the record to have been received by husband thereafter 

were annual student loans from the "federal government" in the 

sum of $36,000, which the record further discloses must be repaid 

by husband. That repayable loan may not be imputed as income to 

husband. Accordingly, we reverse the trial court's finding 

relative to monthly support payments and remand this cause for 

further consideration of that issue. 

 At oral argument, husband conceded that in making an 

appropriate support award it may not be error to impute previous 

annual income based upon previous years in which actual earned 

 1Wife argued that the trial court's finding of fact that 

husband earned $26,950 during his last year of full employment 

justifies the amount $446 in monthly support. While the trial 

court did find that husband earned $26,950 during his last year 

of full employment, it specifically stated that the amount of 

support was determined based upon an imputed income to husband of 

$43,000 ($3,583 per month). This sum included a $36,000 loan 

obtained by husband and a $7,000 loan for which husband applied. 

 
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income was shown. 

IV. Arrearages 

 Prior to their separation, on December 31, 1993, the parties 

executed a Final and Permanent Separation and Property Settlement 

Agreement (PSA). In this appeal, we discuss only the provisions 

in the PSA concerning custody and support for the child. As to 

child support, the PSA provided as follows: 

 9. Child Support. Child support shall be 

paid by the parent who does not have primary 

physical custody of the children to the 

parent who has primary physical custody at 

the time of the payment commencing on January 

1, 1994 in the amount of $__________ per 

month. Husband is currently in medical 

school and has minimal income, but is 

expected to contribute to child support based 

upon what income he does have. . . . 

As can be seen, the dollar amount was left blank; however, in the 

margin opposite paragraph 9, the words "house mortgage payment" 

were handwritten and initialed by the parties. The record 

clearly discloses that the amount of that monthly payment was 

$931.64. 

 At the time the PSA was executed, the parties were living 

together in the same house with their two children.2

 They 

continued to live together for an additional eight months, 

apparently jointly operating three separate Montessori schools 

from which they received income. Thus, neither party had 

exclusive "primary custody" of the children until they separated 

 2One child died in an accident prior to the entry of the 

final decree of divorce from which this appeal emanates. 
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on August 31, 1994. Until August 1994, husband paid $931.64 each 

month to wife. Notwithstanding that wife has continually 

retained "primary custody" of the surviving child, husband 

thereafter did not make that monthly payment. 

 On April 13, 1995, wife instituted a divorce suit against 

husband. A pendente lite hearing was held in the trial court on 

April 28, 1995. We were not provided a transcript of that 

hearing and neither counsel for the parties in this appeal was 

present at the pendente lite hearing. A temporary support decree 

was entered which gave wife custody of the child and ordered 

husband to pay wife $125 per month beginning May 1, 1995 for 

support of the child.3 The order recites that the support award 

is based on husband's income of $250 per month and wife's monthly 

income of $1,333. 

 The pendente lite order further provided that "[n]o support 

arrearages exist at this time." The order stated that the 

findings were predicated on "having considered the testimonial 

and documentary evidence presented his [sic] date"; however, 

neither the reason for the finding of no arrearages nor the 

evidence considered in making the finding are in the record 

before us. The order contained a further provision that as the 

$125 per month support obligation becomes due and is unpaid, it 

thereby "creates a judgment by operation of law." Upon familiar 

 

 3The trial judge who entered the pendente lite order was not 

the judge who entered the final divorce decree. 
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principles, the order is presumed correct. Steinberg, 11 Va. 

App. at 326, 398 S.E.2d at 508. 

 At trial, wife requested that the trial court enter a 

judgment for "arrearages." She asserted that husband owed her 

for the monthly payments described in the margin of paragraph 9 

of the PSA which husband had not paid since July 1994. Wife's 

assertion disregards the trial court's finding in the pendente 

lite order that as of April 28, 1995, there was no arrearage. In 

addition, the pendente lite order established that husband's 

support obligation was $125 per month. That order may not be 

retroactively modified. See Code § 20-108; see also Cofer v. 

Cofer, 205 Va. 834, 140 S.E.2d 663 (1965); Taylor v. Taylor, 10 

Va. App. 681, 394 S.E.2d 864 (1990). 

 At the hearing before the commissioner, the PSA was 

presented and marked P-1. Neither party wanted the PSA to be 

incorporated into the final decree precisely as that document was 

written. Husband wanted only the PSA provisions pertaining to 

custody and visitation incorporated into the final decree and 

objected to all other provisions. Wife wanted all of the PSA 

provisions incorporated into the final decree except for the 

custody and visitation provisions. In addition, wife wanted a 

judgment for arrearages beginning with the payment due under the 

PSA in August 1994. In its final decree of divorce, the trial 

court confirmed the commissioner's report, granted wife a divorce 

on the ground of husband's adultery, dismissed husband's 
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cross-bill, and dissolved the bonds of matrimony between the 

parties. It affirmed, ratified and incorporated the PSA in part, 

as it is authorized by law to do, see Frye v. Swarting, 4 Va. 

App. 173, 178-79, 355 S.E.2d 342, 344-45 (1987); Rodriguez v. 

Rodriguez, 1 Va. App. 87, 90, 334 S.E.2d 595, 597 (1985), and 

directed the parties to comply with the portions incorporated by 

use of the following paragraph: 

 Except as to the matters dealing with 

Veronica's custody and support, the 

Agreement, which is filed with the papers in 

this cause, be and the same is hereby 

affirmed, ratified and incorporated as a part 

of this decree as if fully set forth herein 

and the parties are directed to comply with 

same. 

Having specifically excluded that portion of the PSA upon which 

wife bases her claim of arrearages, the trial court was without 

jurisdiction to render a judgment concerning the excluded 

provisions.4

 The Supreme Court in Shoosmith v. Scott, 

217 Va. 789, 232 S.E.2d 787 (1977), 

distinguished the effect of a divorce decree 

that approves a contract between the parties 

without specifically incorporating the 

contract or ordering the husband to perform 

its obligations, and a divorce decree that 

specifically incorporates the contract or 

orders the husband to perform its 

obligations. In the former, the decree is an 

approval of a private contract and may not be 

enforced in the divorce suit, whereas in the 

latter situation, the court may enforce the 

agreement through its contempt powers. 

 

 4As aforenoted, the trial court is without authority to 

modify its previous orders (here the pendente lite order) 

retroactively. Cofer, 205 Va. at 839, 140 S.E.2d at 666-67; 

Taylor, 10 Va. App. at 683, 125 S.E.2d at 865-66. 
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Rodriguez, 1 Va. App. at 90, 334 S.E.2d at 597. Here, the 

portion of the PSA containing the support provisions was excluded 

from the final divorce decree. Furthermore, no order in this 

record directs husband to comply with the contract support 

provision. Thus, the support provision constituted a private 

contract between the parties and "may not be enforced in the 

divorce suit." Id. McCaw v. McCaw, 12 Va. App. 264, 403 S.E.2d 

8 (1991), relied upon by wife, is not contrary to this 

conclusion. Accordingly, the trial court was without 

jurisdiction to award a judgment on the portion of the PSA it had 

not approved or with which it had not ordered husband to comply. 

 For the reasons stated, the judgment of the trial court is 

reversed and remanded for such further action as may be warranted 

that is not inconsistent with this opinion. 

 Affirmed in part,

reversed in part,

 and remanded.