A Rehearing En Banc was granted in this case on October 11, 1996. 

COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Fitzpatrick 

Argued at Richmond, Virginia 

SHARLENE B. ORLANDI 

 OPINION BY 

v. Record No. 2893-95-2 JUDGE JOHANNA L. FITZPATRICK 

 AUGUST 6, 1996 

ANTHONY P. ORLANDI 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

Richard H. C. Taylor, Judge 

 Halford I. Hayes (Lucretia A. Carrico; Hayes 

& Carrico, P.C., on brief), for appellant. 

 John M. Schilling (White, Blackburn & Conte, 

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

 Sharlene B. Orlandi (mother) appeals the trial court's 

decision to award child support to Anthony P. Orlandi (father). 

She argues that the trial court erred in finding that: (1) 

father was not required to show a material change in 

circumstances, and (2) if father was required to show a material 

change, he met his burden. For the reasons that follow, we 

affirm the trial court's decision. 

 BACKGROUND

 The parties share joint legal custody of their two children, 

with father as the primary care-giver. On December 8, 1994, the 

parties appeared before the trial court on a support appeal from 

the juvenile and domestic relations district court and submitted 

a draft consent decree resolving the disputed support issue. In 

the consent decree entered by the trial court on December 15, 
 2 

1994, the parties agreed that "neither party will pay to the 

other any child support" and that they would "split equally all 

un-reimbursed medical bills." The consent decree referred "all 

future matters pertaining to child support" to the Hanover County 

Juvenile and Domestic Relations District Court. 

 Father later filed a petition seeking a modification in 

child support, and a hearing was held on October 20, 1995. The 

evidence established that, at the time of the entry of the 

consent decree, mother was unmarried, agreed to help with some of 

the children's expenses, and visited the children on a regular 

basis. After the entry of the consent decree on December 15, 

1994, mother remarried. She spent less time with the children 

and did not give father money to help with expenses as 

anticipated. Mother's new husband was self-employed, lived with 

her in her home, and put money in their joint checking account. 

Although mother testified that she continued to pay her expenses 

as before her marriage, she admitted that: "[B]ecause I have had 

a lot of bills coming in lately for different things, he [has 

helped] me pay that." She also testified that her new husband 

"maintains whatever he did before, and I guess whatever he makes 

over and above goes into savings for us both." 

 In a November 29, 1995 order, the trial court found as 

follows: 

 [Father] need not show a material change of 

circumstances since the current Order of 

support was submitted by the consent of the 

parties, and the legislative guidelines were 

not used, and further that the father does 
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not have the right to waive the children's 

right of child support. The Court further 

finds a material change of circumstances 

exists since the entry of the aforesaid 

Consent Order namely, [mother] has remarried 

and has used her current spouse's income to 

help pay her expenses, that the parties 

agreed at the time of the Consent Order that 

[mother] would help support the children 

which she has wholly refused to do since the 

entry of the Order, and that [mother] has not 

visited the children in accordance with the 

 . . . visitation schedule. 

(Emphasis added). The court then determined the presumptive 

amount of child support under the guidelines in Code § 20-108.2 

to be $453.83 per month and ordered mother to pay father this 

amount in child support. 

 CONSENT DECREE

 Mother contends that the trial court erred in finding that 

father was not required to show a material change in 

circumstances because the underlying child support order was the 

result of a consent settlement by the parties rather than a court 

adjudication. We agree that the trial court erred in its initial 

determination that father was not required to prove a material 

change in circumstances in order to justify a modification of 

child support. No legitimate rationale supports using separate 

standards for the modification of child support contained in a 

court-approved consent settlement and child support ordered by 

the court in accordance with the guidelines in Code § 20-108.2. 

 Code § 20-109.1 provides, in pertinent part, as follows: 

 Any court may affirm, ratify and 

incorporate by reference in its decree 

dissolving a marriage or decree of divorce 
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whether from the bond of matrimony or from 

bed and board, or by a separate decree prior 

to or subsequent to such decree, any valid 

agreement between the parties, or provisions 

thereof, concerning the conditions of the 

maintenance of the parties, or either of them 

and the care, custody and maintenance of 

their minor children, or establishing or 

imposing any other condition or 

consideration, monetary or nonmonetary. 

Where the court affirms, ratifies and 

incorporates by reference in its decree such 

agreement or provision thereof, it shall be 

deemed for all purposes to be a term of the 

decree, and enforceable in the same manner as 

any provision of such decree. 

(Emphasis added). Pursuant to Code § 20-109.1, the court "'may 

accept a child support agreement [between the parties], in whole 

or in part, or it may completely reject the agreement and 

exercise its statutory right to determine support.'" Watkinson 

v. Henley, 13 Va. App. 151, 157, 409 S.E.2d 470, 473 (1991) 

(quoting Fry v. Schwarting, 4 Va. App. 173, 178, 355 S.E.2d 342, 

345 (1987)).1 

 "Once a child support award has been entered, only a showing 

of a material change in circumstances will justify modification 

of the support award. The moving party has the burden of proving 

a material change by a preponderance of the evidence." Crabtree 

 

 1We recognize that, when ordering child support by entering 

a consent decree or by approving the child support provisions of 

a property settlement agreement, a trial court is required to 

consider the agreed amount and determine whether that amount 

serves the best interests of the child. See Watkinson, 13 Va. 

App. at 158, 409 S.E.2d at 474. In the instant case, the record 

fails to show that the trial court considered the statutory 

guidelines before entering the parties' original consent decree. 

 However, neither party appealed the underlying 1994 consent 

order, and its validity is not now an issue. 
 5 

v. Crabtree, 17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993) 

(emphasis added). "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." Featherstone v. Brooks, 220 Va. 443, 446, 258 

S.E.2d 513, 515 (1979). In cases involving a consent decree 

agreeing to child support or a property settlement agreement 

providing for child support, the court's continuing authority to 

modify child support may be exercised only upon a showing of a 

material change in circumstances. See id. at 444-47, 258 S.E.2d 

at 513-16 (holding that court had authority to modify a divorce 

decree incorporating a property settlement agreement and to order 

mother to pay child support when father showed a material change 

in circumstances); Watkinson, 13 Va. App. at 156-61, 409 S.E.2d 

at 472-75 (holding that court had authority to reduce father's 

child support obligation contained in the parties' consent decree 

if he proved a material change in circumstances). Additionally, 

"'[a] consent decree is a contract or agreement between the 

parties to the suit, entered of record in the cause with the 

consent of the court, and is binding unless secured by fraud or 

mistake.'" Durrett v. Durrett, 204 Va. 59, 63, 129 S.E.2d 50, 53 

(1963) (emphasis added) (quoting Barnes v. American Fertilizer 

Co., 144 Va. 692, 720, 130 S.E. 902, 911 (1925)). 

 Although neither the Supreme Court of Virginia in 
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Featherstone nor this Court in Watkinson explicitly held that the 

material change of circumstances test for modification of child 

support should be utilized when an award is based on a consent 

decree or a property settlement agreement, both courts implicitly 

adopted this standard.2 Thus, we agree with mother's contention 

that the trial court erred in its initial ruling that father was 

not required to prove a material change in circumstances because 

"the current Order of support was submitted by the consent of the 

parties." However, because the evidence supports the trial 

court's alternative finding that a material change was proven, 

this error was harmless.3

 

 2Other jurisdictions have also held that a parent seeking 

modification of a child support award contained in a consent 

decree must show a change in circumstances. See, e.g., Dull v. 

Dull, 392 N.E.2d 421, 423 (Ill. App. Ct. 1979) ("[P]rovisions 

relating to child support payments, including those embodied in a 

consent decree, are always subject to modification by a court 

upon changed circumstances and to promote the best interests of 

the child."); McDaniel v. McDaniel, 670 So. 2d 767, 769 (La. Ct. 

App. 1996) ("[A] party seeking a modification of a child support 

award, including a consent decree, must establish a substantial 

change in the circumstances of one of the parties."). 

 3Father argues that the consent decree was void and that he 

was not required to show a material change in circumstances 

because "parents cannot contract away their children's rights to 

support nor can a court be precluded by agreement from exercising 

its power to decree child support." Kelley v. Kelley, 248 Va. 

295, 298, 449 S.E.2d 55, 56 (1994). The agreement at issue in 

Kelley provided that the husband would never be responsible for 

child support and that the wife would never petition a court to 

receive child support. Id. The Supreme Court determined that 

the agreement as to child support was void and subject to 

collateral attack because "the children's rights to receive 

support from both parents were substantially abridged, and the 

court's power to decree support was diminished." Id. at 298, 449 

S.E.2d at 56. 

 However, this case is distinguishable from Kelley. Unlike 
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MATERIAL CHANGE IN CIRCUMSTANCES

 The trial court found that, if father was required to prove 

a material change in circumstances, he met the threshold burden 

to get the issue before the court. The evidence established 

that: (1) mother had remarried; (2) her new husband provided 

some additional financial benefit to her and paid some of her 

expenses; and (3) mother had refused to help with the children's 

expenses after agreeing to do so at the time of the consent 

decree.4

 The court found a material change in circumstances, 

correctly applied the child support guidelines of Code 

§ 20-108.2, and awarded father the presumptive amount of child 

support. 

 "The trial court's decision, when based upon an ore tenus

hearing, is entitled to great weight and will not be disturbed 

unless plainly wrong or without evidence to support it." Venable 

v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986). 

"[I]n order to entertain a petition to increase, decrease, or 

terminate child support, [a trial court must] . . . make a 

 

the agreement in Kelley, the consent decree at issue in this case 

did not limit the court's continuing jurisdiction to modify child 

support or forever waive the children's right to support. Thus, 

the consent decree was not void, was binding on the parties 

unless set aside on appeal, and was subject to modification only 

upon a showing of a material change in circumstances. 

 4The trial court also found that mother had not visited the 

children in accordance with the visitation schedule and that the 

children were one year older. While these additional changes 

standing alone are not sufficient to prove a material change in 

circumstances, they may be considered. 
 8 

threshold finding that a material change of circumstance has 

occurred since the last award or hearing to modify support." 

Hiner v. Hadeed, 15 Va. App. 575, 579, 425 S.E.2d 811, 814 

(1993). "[W]hen a judge determines that a material change of 

circumstance has occurred in the children's needs or the parents' 

abilities to provide for those needs and that a change in the 

amount of support is required, the initial step to determine how 

to modify the support award is to calculate the amount presumed 

to be correct according to the guidelines." Id. at 579, 425 

S.E.2d at 813. Whether a parent is seeking a modification of 

support ordered in a consent decree, agreed to in a property 

settlement agreement incorporated by the court, or determined by 

the court in accordance with the guidelines, the trial court must 

first calculate the presumptive amount of support under the 

guidelines in Code § 20-108.2 and then determine whether 

deviation from the presumptive amount is required. Watkinson, 13 

Va. App. at 158, 409 S.E.2d at 473-74. In Scott v. Scott, 12 Va. 

App. 1245, 408 S.E.2d 579 (1991), this Court held that, when the 

parties have agreed to child support, the trial court 

 must determine the guideline amount and then 

may compare this amount with the provisions 

of the separation agreement. If the factors 

described in Code §§ 20-107.2 and 20-108.1 

justify an award based upon the provisions of 

the separation agreement instead of the 

statutorily presumptive amount, it may then 

enter an award in the amount provided for in 

the separation agreement . . . . 

Id. at 1249, 408 S.E.2d at 582. Thus, the starting point is the 
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presumptive amount of child support under the guidelines, not the 

agreed amount of child support under the consent decree. 

 In the instant case, mother orally agreed to help with the 

children's expenses, and her failure to do so was properly 

considered by the trial court in meeting the threshold burden of 

showing a material change in circumstances "in the children's 

needs or the parents' abilities to provide for those needs." 

Hiner, 15 Va. App. at 579, 425 S.E.2d at 813. Additionally, the 

remarriage of mother and the related economic impact of her 

remarriage may be considered a "material" change in circumstances 

justifying modification of the agreed amount of child support. 

We do not hold that a new spouse is required to support the other 

spouse's children, but we recognize that remarriage may change a 

parent's ability to provide support for his or her children by 

either increasing or decreasing that parent's expenses and by 

altering the utilization of the parent's own funds. The evidence 

established that mother remarried; that her new husband was 

employed; that he paid some of mother's bills; and that he made 

deposits into their joint checking account. The trial court 

determined that, if father was required to show a material change 

in circumstances, he met his burden because of mother's 

remarriage and her new husband's financial contributions to their 

household. We cannot say that the trial judge abused his 

discretion in finding mother's remarriage and its economic impact 

to be a material change in circumstances. 
 10 

 Accordingly, the decision of the trial court is affirmed. 

 Affirmed. 
 11 

Benton, J., dissenting. 

 I concur in the portions of the opinion styled BACKGROUND 

and CONSENT DECREE. I do not agree, however, with the ruling 

that the trial judge's error was harmless or with the portion of 

the opinion styled MATERIAL CHANGE IN CIRCUMSTANCES. 

 When the parties divorced, they agreed that their children 

would live with the father and that the mother and father would 

have "joint custody." The children live with their father, whose 

income is in excess of $100,000. No evidence proved the children 

have financial need. 

 The father initiated this proceeding based upon his claim 

that the mother refused to pay for an automobile for the daughter 

and other bills. However, the consent decree does not require 

the mother to pay for an automobile or other general expenses the 

father incurs while the children are in his physical custody. 

The consent decree specifically states that "neither party will 

pay the other any child support" and "that each party shall split 

equally all un-reimbursed medical bills." 

 The father testified as follows concerning medical bills: 

 Q Are there any other bills? 

 A Doctor bills and dental bills. 

 Q Have you submitted them through counsel? 

 A No. 

 Q So you haven't submitted or asked [the 

 mother] to pay those at this time? 

 A No, I have not asked her to pay them. 
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Clearly, the mother's failure to pay for the daughter's 

automobile and the medical bills she had not received could not 

give rise to a change in circumstances. 

 The undisputed evidence proved that the mother has attempted 

to maintain visitation with her children. However, the 

sixteen-year-old daughter refuses to visit the mother. The 

mother continues to visit the son, but her visits are limited 

because of the son's and the father's schedules. The evidence 

clearly established that the children's schedules and their 

wishes have caused changes in the mother's visitations. In any 

event, as the majority recognizes, those issues do not justify a 

change in the support provisions of the consent decree. 

 The consent decree resolved issues of custody, payments of 

expenses for the children, and provided that "neither party will 

pay to the other any child support." Nothing in the consent 

decree states that the agreement the parties reached was premised 

upon the mother's gross or net income or upon a consideration of 

her economic circumstances. Moreover, the trial judge did not 

make a finding of fact that the mother's remarriage improved her 

financial condition or her ability to pay child support. Indeed, 

on this record the trial judge could not have made such a finding 

because the only evidence of economic impact was as follows: 

 Q Now you are married; are you not? 

 A Yes. . . . 

 Q Well, [your husband] helps you to pay 

some of the bills, doesn't he? 
 13 

 A Yes, he does. 

 Q So your expenses are less now than they 

were before you got married, correct? 

Because he helps pay the bills? 

 A Well, actually it could be wrong in 

somebody else's eyes, but I maintain what I 

usually did now, and he maintains what he had 

from before. So I still pay the bills, but 

he has income; yes, he does. 

 Q He helps you pay some bills from the 

home? 

 A Like I say. I still continue to pay 

bills from before. 

 Q What bills does he pay? 

 A He has child support, he has to run his 

business expenses through. I, as I say, we 

don't -- I don't know his income. We haven't 

been married that long. He maintains what he 

did before, and I guess whatever he makes 

over and above goes into savings for us both. 

 That's all I know. 

 Q Do you have a joint checking account? 

 A Yes. 

 Q And he puts money into that joint 

checking account? 

 A No. 

 Q He doesn't put money in the joint 

checking account? 

 A He has occasionally. No -- well, he 

gives me money for his child support, yes, he 

does that. And he has his own checking 

account. 

 Q It's your testimony he never gives you 

money or puts it in that account? 

 A I did not say never. I say occasionally 

he has given me money for child support, and 
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because I have had a lot of bills coming in 

lately for different things, he helps me pay 

that. . . . Basically I still pay the bills 

with what I have, yes. And everything else 

has stayed in his account. 

This evidence did not prove a change in the mother's financial 

circumstances sufficient to justify a change in the consent 

decree. 

 In reaching its decision, the majority also states that the 

mother's "failure [to help with the children's expenses] was 

properly considered by the trial court in meeting the threshold 

burden of showing a material change in circumstances." However, 

the trial judge did not and could not make a finding that the 

mother was obligated to pay expenses for the children that were 

not ordered in the consent decree. "'A consent decree is a 

contract or agreement between the parties to the suit, entered of 

record in the cause with the consent of the Court, and is binding 

unless secured by fraud or mistake.'" Durrett v. Durrett, 204 

Va. 59, 63, 129 S.E.2d 50, 53 (1963)(citation omitted). Thus, to 

the extent that the parties had an oral agreement regarding child 

support, it was supplanted by the consent decree. 

 In the present suit, there is no reason to 

construe the contract and to ascertain the 

intention of the contracting parties. The 

agreement of the parties is only incidentally 

involved, because, insofar as its effect on 

the divorce suit is concerned, the contract 

provisions pertaining to child support were 

supplanted by subsequent court orders in the 

divorce suit dealing specifically with that 

subject. 

Eaton v. Eaton, 215 Va. 824, 827, 213 S.E.2d 789, 791 (1975). 
 15 

Indeed, the consent decree specifically states "that neither 

party will pay to the other any child support" and "that each 

party shall split equally all un-reimbursed medical bills." I 

find no basis to conclude that the mother was obligated to make 

any other payments and that her refusal to pay for an automobile 

for the sixteen-year-old child could be considered as a change in 

circumstances. 

 The trial judge's finding that the father proved a change in 

circumstances because the mother "has remarried and has used her 

current spouse's income to help pay her expenses" is tantamount 

to holding that the mother's new spouse must support the mother's 

children. Although the majority disavows requiring the mother's 

new spouse to support her children, the effect of the ruling is 

precisely that. Indeed, on the facts of this case, the 

majority's ruling, that "the remarriage of mother and the related 

economic impact of her remarriage may be considered a 'material' 

change in circumstances justifying modification of the agreed 

amount of child support," opens the door to requiring every 

spouse to contribute to the support of the other spouse's 

children from a previous marriage. This decision is contrary to 

the well established principle that the mother's new husband has 

no obligation to support the mother's children from a prior 

marriage. See T... v. T..., 216 Va. 867, 869, 224 S.E.2d 148, 

150 (1976). NPA v. WBA, 8 Va. App. 246, 249, 380 S.E.2d 178, 180 

(1989). 
 16 

 The circumstances relied upon to justify a modification in 

the consent order are not material to support and do not justify 

a change in support. For these reasons, I would hold that the 

evidence failed to prove the mother's re-marriage, her refusal to 

pay non-medical expenses, and the changes in visitation are 

material changes in circumstances that justified a change in 

child support.