COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

CARL O. PATTON 

 MEMORANDUM OPINION*

v. Record No. 1851-96-4 BY JUDGE CHARLES H. DUFF 

 JULY 8, 1997 

LINDA GIULIANO PATTON 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Michael P. McWeeny, Judge 

 William K. Dove, II (William K. Dove & 

Associates, P.C., on briefs), for appellant. 

 Marcia M. Maddox (Heather Ann Cooper; Law 

Office of Marcia M. Maddox, on brief), for 

appellee. 

 Carl O. Patton (father) contends that the trial judge erred 

by (1) denying his petition to modify his child support 

obligation because his workers' compensation benefits had been 

terminated; and (2) not crediting his child support payments with 

the lump sum Social Security disability benefit received by Linda 

Giuliano Patton (mother) on behalf of the children. We find no 

error and affirm the judgment of the trial judge. 

Background

 The parties were married in 1982 and their Final Decree of 

Divorce was entered on June 15, 1990. Two children were born of 

the marriage, and custody of the two minor children was awarded 

to mother. Father agreed to pay spousal and child support 

 

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

designated for publication. 
 2 

pursuant to the parties' Separation Agreement which was 

incorporated into the final decree of divorce. 

 On June 24, 1994, father was involved in an employment 

related traffic accident, resulting in permanent brain injury. 

He received workers' compensation payments, and he sought Social 

Security disability benefits for himself and his children. A 

February 1, 1996 letter from the Social Security Administration 

indicates that mother was to receive Social Security benefits in 

the amount of $219 for each child for December 1994, $222 per 

child starting in January 1995, and $228 per child starting in 

December 1995. 

 On June 14, 1995, the parties entered into a Consent Order, 

addressing child and spousal support, and insurance premium 

arrearages owed by father to mother. Effective March 1, 1995, 

the Consent Order provided that these arrearages were reduced to 

judgments against father in favor of mother. The Consent Order 

further provided that the judgments constituted "judgment 

lien[s]" against father's anticipated personal injury award and 

included interest. 

 The Consent Order also confirmed the continuing, 

non-modifiable nature of father's spousal support obligation. In 

addition, the parties agreed to a temporary reduction of father's 

child support obligations from $1,000 per month to $900 per 

month. The Consent Order further provided that, of the $900 per 

month child support due, father would pay only $800 per month 
 3 

until receipt of the personal injury award or his return to 

employment, whichever first occurred. The $100 per month not 

paid by father would accrue as additional arrearages, 

constituting additional judgment liens against his anticipated 

personal injury award. 

 On November 9, 1995, father was awarded $300,000 in his 

personal injury action. On November 17, 1995, mother requested a 

payment of $18,521.34 from father as satisfaction of the 

judgments established in the Consent Order. 

 On January 5, 1996, mother filed a "Petition for Rule to 

Show Cause" due, inter alia, to father's refusal to satisfy the 

judgments pursuant to the Consent Order. The circuit court 

entered a "Rule for Contempt" against father on January 11, 1996. 

 Father filed a "Response to Rule to Show Cause" on January 

26, 1996. In the response, he stated that he had paid mother 

$13,362.34 pursuant to the Consent Order prior to her filing the 

Petition for Rule to Show Cause. He also indicated that he was 

withholding $5,328 as a credit to him based upon pending Social 

Security disability payments to be paid to the parties' children 

on his behalf. Father more fully set forth this argument in his 

"Petition for Entry of Order to Implement Consent Order." In 

that petition, father contended that mother had received a lump 

sum payment of $5,328 in Social Security benefits on behalf of 

the children, which was retroactive through the period of time 

covered by the Consent Order, and which compensated mother for 
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the monthly Social Security payments beginning December 1994. 

Father asserted that he was entitled to a credit against the lien 

set forth in the Consent Order in the amount of $5,328. 

 Also in that petition, father asked the trial judge to 

recalculate his child support obligation, crediting him with the 

$444 per month in Social Security benefits received by the 

children, resulting in a reduction of $444 per month in his child 

support payments. 

 On February 16, 1996, the trial judge held a hearing on the 

outstanding motions. On February 27, 1996, the judge issued an 

opinion letter, finding that father had no right to an offset 

against the child support arrearages for Social Security 

disability benefits "potentially due" to the children on his 

behalf. The judge noted that the language of the June 14, 1995 

Consent Order was "clear and unambiguous" in requiring that the 

judgment for arrearages be paid out of father's personal injury 

recovery. 

 The trial judge further stated that the terms of the Consent 

Order were not subject to retroactive modification. The judge 

found that "the disability benefits received by the children 

should be included in the computation of the ongoing support 

obligation and credited against that obligation." The judge set 

father's revised child support obligation at $861 per month, with 

a credit or offset of $444 per month for the Social Security 

benefits, resulting in a net obligation of $417 per month. 
 5 

 The parties filed several motions, including father's 

"Petition for Modification of Support Order and for Computation 

of Credit Against Spousal Support or Refund." In this petition, 

father asserted that, on March 8, 1996, his workers' compensation 

payments were terminated. He asked to modify his child support 

obligation because these benefits had been terminated. He also 

renewed his request for a credit for the lump sum Social Security 

disability payment made to his children on his behalf. 

 On May 24, 1996, the parties presented their respective 

motions to the trial judge. At the hearing, a claims adjuster 

from the workers' compensation carrier testified that the carrier 

terminated father's workers' compensation payments on March 8, 

1996 due to father's receipt of the third-party personal injury 

award. 

 On May 28, 1996, the trial judge issued an opinion letter, 

finding that the monthly Social Security payments constituted 

father's income for child support purposes. The judge also found 

that the change in the source of father's income from workers' 

compensation to the personal injury recovery was not a material 

change in circumstance. Therefore, the judge denied father's 

request for modification of his child support obligation. 

Finally, the judge denied father's request for a credit for the 

lump sum Social Security disability payment against his child 

support or spousal support obligations. The judge reasoned that, 

although father presented no evidence that such payment was 
 6 

received by mother, any lump sum benefits, "if proven, would be 

the periodic payments accrued prior to the February 16, 1996 

hearing," and that this was a benefit that the children should 

have been receiving at the rate of $444 per month, "the exact sum 

used both to compute [father]'s gross income and to serve as a 

credit against his obligation." 

 On June 28, 1996, the trial judge entered an order 

memorializing his May 28, 1996 opinion letter. Father appeals 

from that order. 

Workers' Compensation Benefits Issue

 "Where the trial court's decision is based upon an ore

tenus hearing, its determination will not be disturbed on appeal 

unless it is plainly wrong or without evidence in the record to 

support it." Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 

383 S.E.2d 28, 30 (1989). 

 Father first argues that the trial judge erred in denying 

his petition for modification of his child support obligations 

when his workers' compensation benefits were terminated. 

 Code § 65.2-309 provides for an employer's right of 

subrogation against a third party when the employer has paid 

compensation to an employee who was injured as a result of the 

negligence of the third party. The claims adjuster for the 

insurance carrier testified that his company ceased paying 

workers' compensation benefits to father when he obtained the 

personal injury award, stating that the carrier had a lien on 
 7 

this award. Mother disputes that father proved he no longer 

receives workers' compensation payments. However, the trial 

judge found that the evidence "clearly demonstrate[d]" that the 

insurance company terminated father's temporary total disability 

payments. 

 The trial judge then found that the workers' 

compensation benefits were considered "'gross income'" under Code 

§ 20-108.2(C), and that, because the personal injury award 

replaced the workers' compensation award, "the alteration of the 

source of the workers' compensation benefit d[id] not constitute 

a change in circumstance." 

 Code § 20-108.2(C) defines "gross income" as "all income 

from all sources," including "workers' compensation benefits." 

Clearly, father's workers' compensation benefits constituted part 

of his gross income. However, father argues that the trial judge 

erred in finding that the personal injury award replaced the 

workers' compensation award. Father contends that the result of 

the judge's findings is to require payment of child support from 

the proceeds of the personal injury award, which is in 

contradiction of Code § 34-28.1, providing for an exemption for 

personal injury awards from creditor process. 

 Father cites Whitaker v. Colbert, 18 Va. App. 202, 442 

S.E.2d 429 (1994), as authority for the position that a personal 

injury award is not income for purposes of Code § 20-108.2(C). 

In Whitaker, we held that the evidence did not prove that the 
 8 

personal injury settlement generated income for the former 

husband for purposes of determining child support. Id. at 205, 

442 S.E.2d at 431. However, Whitaker is factually 

distinguishable from father's case. In Whitaker, the disabled 

parent did not receive workers' compensation benefits. His only 

source of income was Social Security benefits. Id. at 204, 442 

S.E.2d at 430. Because the personal injury award included an 

income element and compensation for medical expenses, loss of 

earning capacity, pain and suffering and other elements, the 

trial court reasoned that it would be speculative to apportion 

any part of the settlement to prior lost wages as opposed to 

other elements of damages. Id. at 205, 442 S.E.2d at 431. 

 Father's personal injury award compensated for a work 

related injury and the award temporarily replaced income he had 

been receiving in the form of workers' compensation benefits. 

Although his award presumably also contained elements such as 

compensation for medical expenses and pain and suffering, the 

trial judge did not have to speculate as to how much of the 

personal injury award to attribute to the replacement of the 

workers' compensation benefits. The claims adjuster from the 

workers' compensation carrier testified that father received 

bi-weekly workers' compensation payments of $902. These payments 

were suspended pending the exhaustion of the carrier's right to 

subrogation. Therefore, a definable portion of the personal 

injury award, $902 per week, replaced the workers' compensation 
 9 

payments which, by statute, are included in gross income for 

purposes of the determination of child support. See Code 

§ 20-108.2(C). Accordingly, the trial judge's ruling was not 

plainly wrong or without evidence to support it. 

 "The moving party in a petition for modification of support 

is required to prove both a material change in circumstances and 

that this change warrants a modification of support." 

Schoenwetter, 8 Va. App. at 605, 383 S.E.2d at 30. The trial 

judge's ruling that the personal injury award was an "alteration 

of the source of the workers' compensation benefit" was not a 

ruling that the entire personal injury award should be included 

in father's gross income. Only that portion of the personal 

injury award which replaced the workers' compensation award was 

included in the computation of father's gross income. Thus, 

father's argument that the judge's ruling results in the payment 

of child support in direct contradiction of Code § 34-28.1 is 

without merit. Because a portion of the personal injury award 

replaced the workers' compensation component of father's gross 

income for the purpose of child support determination, father 

failed to prove a material change in circumstance. 

Lump Sum Payment Issue

 Father next argues that the trial judge erred in not 

crediting his child support payments with the lump sum Social 

Security disability benefit received by mother on behalf of the 

children. 
 10 

 In his February 27, 1996 opinion letter, the trial judge 

found that there was no "right of offset" for disability benefits 

"potentially due" with respect to the arrearages, stating that 

the Consent Order was "clear and unambiguous" that the arrearages 

were to be paid from the personal injury award. However, the 

judge found that the Social Security disability benefits received 

by the children should be included in the computation of the 

ongoing support obligation and credited against that obligation, 

citing Whitaker and Virginia Dep't of Social Servs. v. Skeens, 18 

Va. App. 154, 442 S.E.2d 432 (1994). The judge then reduced 

father's monthly support obligation by $444 per month, the total 

amount of the monthly Social Security benefits payment received 

by the children. The decision to reduce father's ongoing monthly 

support obligation conforms with the holding in Whitaker, which 

held that the child support obligation was properly credited by 

the amount of Social Security benefits received by the children. 

Whitaker, 18 Va. App. at 205-06, 442 S.E.2d at 431-32. 

Skeens, however, addresses the applicability of Social 

Security benefits previously paid as a credit against a child 

support arrearage. In Skeens, after analyzing decisions in other 

jurisdictions, we held: 

 [A] dependent's Social Security disability 

benefits, although constituting an 

independent entitlement, are in the nature of 

support made in lieu of a disabled employee's 

earnings. However, whether the trial court 

credits the payment against an arrearage for 

court-ordered support depends upon the 

circumstances of each case and rests in the 

sound discretion of the trial judge. 
 11 

Skeens, 18 Va. App. at 156, 442 S.E.2d at 433-34 (footnote 

omitted). The rationale behind such a rule is that a request for 

a setoff against an arrearage "goes to the discharge procedure of 

vested support payments and not to the modification of vested 

support rights." Id. at 159-60, 442 S.E.2d at 435. 

 In our analysis, we stated: 

 The payment of money to the child's custodian 

in the form of Social Security payments is an 

indirect payment from the obligor parent for 

which the parent should receive credit. 

However, whether the obligor parent is 

entitled to credit for such payments against 

an accumulated arrearage presents a different 

problem and will depend upon a number of 

factors. 

Id. at 158, 442 S.E.2d at 435. The factors 

 includ[e] but [are] not limited to the extent 

to which the original support award was 

sufficient or deficient in meeting the 

child's needs, whether any modification of 

the support award has been made based upon 

the parent's disability, or a change in the 

child's needs, or the parents' abilities to 

provide support independent of the Social 

Security payments, and whether both parents 

have acted in good faith. 

Id. at 160, 442 S.E.2d at 436. 

 Here, the trial judge relied on the "clear and unambiguous" 

wording of the Consent Order that the arrearages would be paid 

out of the proceeds of father's personal injury award. 

Accordingly, there was no need for the trial judge to exercise 

discretion in weighing the various factors set out in Skeens. 

The parties had specifically agreed that the funds to be used 
 12 

were to come from the personal injury award. Their contract, 

exemplified by the consent decree thus displaced the need for 

application of the Skeens factors. We find no error in the trial 

judge's ruling. 

 Finally, we deny mother's request for attorney's fees. 
 13 

 For these reasons, we affirm the judgment of the trial 

judge. 

 Affirmed. 
 14 

Benton, J., concurring and dissenting. 

 I concur in the majority's decision to affirm the trial 

judge's ruling that Carl O. Patton, the father, failed to show a 

material change in circumstances justifying a modification in his 

child support obligation. I dissent, however, from the 

majority's conclusion that the trial judge did not err in 

refusing to use the lump sum Social Security payment received by 

the children to reduce the total amount of child support 

arrearages due. 

 In his opinion letter, the trial judge stated the following, 

in pertinent part: 

 The central issue in each of these motions 

is the asserted "right of offset" for 

disability benefits potentially due the 

dependent children. The Court finds that 

with respect to the arrearages there is no 

such right. The Consent Order of June 14, 

1995, reads in part: ". . . [The father] is 

hereby ordered to cause disbursement of all 

principal and interest accrued as a result of 

this judgment for arrearages to be made 

directly to [the mother] out of any such 

personal injury award to which [the father] 

is entitled." The language is clear and 

unambiguous, and the Consent Order is not 

subject to retroactive modification. In 

addition, at the time this offset was 

asserted there had been no payments of 

disability payments to the dependent 

children. 

(Emphasis added). That ruling was an erroneous application of 

the law. In Virginia Dep't of Social Servs. v. Skeens, 18 Va. 

App. 154, 442 S.E.2d 432 (1994), this Court ruled as follows: 

 Of those jurisdictions that have 

disallowed a credit, most have done so on the 

theory that application of Social Security 
 15 

payments to reduce a child support arrearage 

constitutes a retroactive modification of the 

child support award. We consider this . . . 

approach to be unsound. 

 When a trial court grants credit to a 

payor parent for Social Security benefits 

received by his children on account of his 

disability, the court does not alter the 

amount of child support that the parent has 

been ordered or is required to pay. The 

court simply allows a source of funds, 

indirectly attributable to a parent, to be 

used to satisfy the parent's court-ordered 

support obligation. Thus, a circuit court 

does not retroactively modify a child support 

award or forgive an accumulated arrearage by 

crediting a dependent child's Social Security 

benefits to satisfy a support obligation. 

Id. at 159, 442 S.E.2d at 435 (citations omitted) (emphasis 

added). 

 The majority concludes that because the parents had already 

entered into the agreement contained in the Consent Order, the 

trial judge was not required "to exercise discretion in weighing 

the various factors set out in Skeens." I disagree. 

 "When addressing matters concerning a child . . . the 

paramount consideration of a trial [judge] is the child's best 

interests." Logan v. Fairfax County Dep't of Human Dev., 13 Va. 

App. 123, 128, 409 S.E.2d 460, 463 (1991). Trial judges are 

vested with discretion to render decisions that protect the 

child's best interests. See id. "[P]arents cannot, by agreeing 

upon the amount or conditions, prevent a court from exercising 

its authority to determine child support." Watkinson v. Henley, 

13 Va. App. 151, 157, 409 S.E.2d 470, 473 (1991); cf. Kelley v. 
 16 

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

a child support agreement, which effectively eliminated one 

spouse's responsibility to support the child and diminished the 

court's power to determine support, was void). Accordingly, I 

disagree with the majority's assertion that the parents' 

"contract, exemplified by the consent decree . . . displaced the 

need for application of the Skeens factors." 

 Because the record clearly reveals that, rather than apply 

the Skeens factors, the trial judge arrived at a legally 

erroneous conclusion, I would remand the case to the trial judge 

for reconsideration of the refusal to allow an offset.