COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Senior Judge Hodges 

Argued at Richmond, Virginia 

JENNIFER MIEDERHOFF 

 OPINION BY 

v. Record No. 2372-01-2 JUDGE JERE M. H. WILLIS, JR. 

 MAY 28, 2002 

PATRICK MIEDERHOFF 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 Janet E. Brown (Janet E. Brown, P.C., on 

brief), for appellant. 

 Matthew N. Ott (Matthew N. Ott, P.C., on 

brief), for appellee. 

 Jennifer Miederhoff contends on appeal that the trial court 

erred (1) in offsetting Patrick Miederhoff's non-conforming 

payments against his child support arrearages by holding 

enforceable an agreement under which he paid their son's college 

tuition and other expenses in lieu of delinquent child support; 

and (2) in limiting the accrual of interest on the child support 

arrearages. For the following reasons, we affirm in part and 

reverse and remand in part. 

I. BACKGROUND

 The Miederhoffs' May 14, 1990 final divorce decree included 

a provision that Mr. Miederhoff "owes a duty of support to the 

minor child [Eric,] born of this marriage [on April 19, 1978,] 

in the amount of $75.00 per week, beginning on August 7, 1989, 
and continuing each week until said child reaches the age of 

eighteen." 

 In January 1992, Mr. Miederhoff accused Ms. Miederhoff of 

cohabiting with another man without the benefit of marriage. He 

threatened to file a court action seeking custody of Eric. The 

parties entered into negotiations. Ms. Miederhoff offered to 

forgo receiving child support if Mr. Miederhoff agreed not to 

seek Eric's custody. He agreed and proposed a consent order, 

providing, inter alia, that "[Mr. Miederhoff] shall not be 

obligated to pay [Ms. Miederhoff] child support for the 

afore-mentioned child" and that "[n]o child support arrearage 

exists." 

 Mr. Miederhoff endorsed the consent order and sent it to 

Ms. Miederhoff for her endorsement. At that time, he ceased 

making child support payments. Ms. Miederhoff neither endorsed 

the consent order nor filed it with the court. In January 1996, 

Mr. Miederhoff learned that the consent order had not been 

endorsed by Ms. Miederhoff and filed with the court. He 

employed an attorney, who contacted Ms. Miederhoff regarding the 

formalization of the agreement. By letter dated March 5, 1996, 

Ms. Miederhoff informed Mr. Miederhoff's attorney that if the 

consent order was modified to provide that Mr. Miederhoff would 

be "largely responsible for the financial support of Eric's 

college education, [she] would reconsider [her] decision." 

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 On April 19, 1996, Eric reached the age of majority, and 

Mr. Miederhoff's ongoing support obligation ceased. However, 

commencing in July 1996, Mr. Miederhoff began paying for Eric's 

college education, pursuant to the terms of Ms. Miederhoff's 

March 5, 1996 letter and the parties' prior agreement. Between 

the summer of 1996 and the spring of 2000, Mr. Miederhoff paid 

$11,611 in educational expenses for Eric. 

 On May 5, 2000, Ms. Miederhoff obtained a show cause order 

against Mr. Miederhoff, alleging that he owed her $16,650 in 

child support due to non-payment between January 6, 1992 and 

April 19, 1996. The juvenile and domestic relations district 

court credited Mr. Miederhoff $11,611 against the arrearage and 

found him to be $5,039 in arrears. It ordered that interest 

would accrue on the arrearage as of January 1, 2001. Ms. 

Miederhoff appealed to the trial court. 

 On retrial de novo, the trial court held (1) that Mr. 

Miederhoff had a child support arrearage of $16,800; (2) that he 

was entitled to an offset of $11,611 for payments made toward 

Eric's college education pursuant to the parties' agreement; (3) 

that Ms. Miederhoff should be allowed three years of interest in 

the amount of $467; and (4) that additional interest would 

accrue from June 1, 2000. 

II. ANALYSIS

 On appeal, Ms. Miederhoff contends that the trial court 

erred in offsetting Mr. Miederhoff's payments for Eric's college 

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expenses against his child support arrearages by holding 

enforceable the parties' agreement that he would pay those 

expenses in lieu of paying the child support arrearage. She 

further contends that the trial court abused its discretion in 

limiting the accrual of interest. 

A. AGREEMENT EXISTED JUSTIFYING OFFSET

 Court-ordered child support payments become vested as they 

accrue. The court lacks authority to order changes as to past 

due installments. Commonwealth v. Skeens, 18 Va. App. 154, 158, 

442 S.E.2d 432, 434 (1994). Generally, the law does not permit 

extra-judicial agreement to vary the terms of a support order or 

permit a payor spouse credit for non-conforming support 

payments. See Acree v. Acree, 2 Va. App. 151, 342 S.E.2d 68 

(1986). The purpose of this rule is to promote respect for and 

consistency in the enforcement of orders and to avoid confusion. 

Id. at 156-57, 342 S.E.2d at 71. The general rule is not 

without exception, however. 

[A]lthough a court may not retroactively 

modify a child support obligation, allowing 

a payor spouse credit for non-conforming 

support payments, in the limited situations 

where permitted, is not a modification of a 

support order. See Acree v. Acree, 2 

Va. App. 151, 152, 342 S.E.2d 68, 69 (1986). 

A court may, when equitable and under 

limited circumstances, allow a party credit 

for non-conforming support payments, 

provided that the non-conforming support 

payment substantially satisfies the purpose 

and function of the support award, see

[id.], and to do so does not vary the 

support award. 

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Gallagher v. Gallagher, 35 Va. App. 470, 476, 546 S.E.2d 222, 

225 (2001). 

 Before credit will be given for agreed non-conforming 

payments, two conditions must exist. First, there must be an 

agreement between the parties which modifies only the terms or 

method of payment. Second, there must be no adverse effect on 

the support award. Id. "An agreement which itself establishes 

or modifies the support obligation, rather than only the terms 

or method of payment, does not meet this test." Id. We 

approved one narrow exception to this rule in Acree. 

Acree involved a bilateral modification agreement that 

provided for a permanent change of custody of the subject child. 

It was agreed that the child, who had theretofore resided with 

her mother, would thenceforth reside with her father. The 

father was relieved of further support payments to the mother on 

behalf of that child. We held that where a 

custodial parent has by his or her own 

volition entered into an agreement to 

relinquish custody on a permanent basis and 

has further agreed to the elimination of 

support payments and such agreement has been 

fully performed, . . . the purpose to be 

served by application of an inflexible rule 

denying credit for non-conforming payments 

is outweighed by the equities 

involved. . . . By assuming [complete] 

physical custody and total responsibility 

for the support of the child, the [father] 

fulfilled his obligation under the decree. 

Acree, 2 Va. App. at 157-58, 342 S.E.2d at 71-72. 

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 "Our holding in Acree was premised in part on the fact that 

when a complete change in custody occurs, the parent originally 

obligated to pay support for that child 'has . . . furnished 

support in a different manner under different circumstances 

easily susceptible of proof.'" Gallagher, 35 Va. App. at 477, 

546 S.E.2d at 225 (quoting Acree, 2 Va. App. at 157, 342 S.E.2d 

at 71). "In short, . . . absent a complete change in custody, 

'the appropriate remedy' in a case in which the parties have 

agreed to a modification of support 'is for the part[ies] 

[timely] to petition the court to modify the decree.'" Id. at 

478, 546 S.E.2d at 226 (quoting Commonwealth v. Skeens, 18 

Va. App. 154, 158, 442 S.E.2d 432, 435 (1994)). 

 This case falls within the rule announced in Acree and 

reaffirmed in Gallagher. 

 First, the trial court found that the parties had an 

agreement. This factual finding, if supported by the evidence, 

will not be disturbed on appeal. See Ivy Construction Company 

v. Booth, 226 Va. 299, 301, 309 S.E.2d 300, 301 (1983); 

Dickerson v. Conklin, 218 Va. 59, 65, 235 S.E.2d 450, 454 

(1977); Brooks v. Roanoke County Sanitation Authority, 201 Va. 

934, 938, 114 S.E.2d 758, 761-72 (1960). In considering this 

question, we view the evidence in the light most favorable to 

Mr. Miederhoff, who prevailed on that issue in the trial court. 

See Cloutier v. Queen, 35 Va. App. 413, 417, 545 S.E.2d 574, 576 

(2001). 

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 So viewed, the evidence disclosed that when Mr. Miederhoff 

first threatened to seek Eric's custody, Ms. Miederhoff offered 

to forgo receiving further child support if Mr. Miederhoff would 

not pursue a custody change. Although Ms. Miederhoff did not 

endorse Mr. Miederhoff's proposed consent order, she acquiesced 

in his forbearance from seeking a change of custody and in his 

cessation of child support payments. When the question of 

formalizing the agreement arose again in 1996, Ms. Miederhoff 

amended her offer to say that she would reconsider her 

"decision" if Mr. Miederhoff would pay Eric's college expenses. 

Understanding this to mean that if he paid the college expenses, 

Ms. Miederhoff would forgo any child support claim and endorse 

the consent order, Mr. Miederhoff proceeded to pay those 

expenses, again with Ms. Miederhoff's acquiescence. Not until 

Eric had arrived at an age where his custody was no longer an 

issue and Mr. Miederhoff had completed paying the college 

expenses did Ms. Miederhoff first raise the question of whether 

she had, in fact, agreed to Mr. Miederhoff's understanding. 

These circumstances support the trial court's determination that 

the parties had an agreement whereby Ms. Miederhoff would forgo 

a claim for child support in exchange for Mr. Miederhoff's 

abstention from seeking a custody change and his payment of 

Eric's college expenses. The trial court's finding, being thus 

supported by the evidence, will not be disturbed on appeal. 

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 Second, when Eric reached the age of majority on April 19, 

1996, his eligibility for child support ceased. On that date he 

was no longer subject to the custody of his mother or entitled 

to ongoing support from his father. His reaching the age of 

majority was tantamount to a complete change of custody. The 

arrearages owed by Mr. Miederhoff became an indebtedness to Ms. 

Miederhoff. 

 Third, the agreement between the Miederhoffs did not alter 

the child support provision of the divorce decree. The accrued 

delinquency in child support payments was recognized and 

enforced in full by the trial court. Mr. Miederhoff was held 

fully responsible for the arrearages that had accrued between 

January 6, 1992 and April 19, 1996. 

 Fourth, the agreement between the parties, which was fully 

performed by Mr. Miederhoff, merely altered the method of 

payment. Had Mr. Miederhoff paid $11,611 to Ms. Miederhoff, he 

would unquestionably have been entitled to credit. Ms. 

Miederhoff's agreement authorized Mr. Miederhoff to make this 

payment to Virginia Commonwealth University ("VCU"). This is no 

different than if he had paid her and she, in turn, had paid 

VCU. 

 Finally, the non-conforming payment is readily susceptible 

of proof. Its calculation is plain and is not disputed. 

 The agreement the parties made and performed was not made 

in the context of an ongoing custody and support obligation. To 

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the contrary, it involved a child who had reached the age of 

majority, was discharged from custody, and was no longer 

entitled to ongoing support pursuant to the support order. The 

agreement in no way modified or abrogated the May 1990 support 

order, but rather was in discharge of it. As a result of the 

agreement, Eric was afforded the benefit of a college education. 

The trial court did not err in offsetting Mr. Miederhoff's 

arrearage. 

B. INTEREST

 "The general rule is that in the absence of factors making it 

inequitable, interest should be assessed on unpaid installments of 

[support] from the date they mature or become due until the date 

they are paid." Allig v. Allig, 220 Va. 80, 85, 255 S.E.2d 494, 

497-98 (1979). Interest is generally awarded at the judgment 

rate. The trial court's award of interest based on its 

determination of Mr. Miederhoff's unpaid arrearage does not 

comport with this general rule and contains no statement of 

calculation permitting an assessment on appeal of whether that 

award represents a fair exercise of discretion. For that reason, 

we reverse the interest award and remand this case to the trial 

court for calculation of the interest awarded Ms. Miederhoff from 

Mr. Miederhoff and a statement on the record of that calculation. 

 Affirmed in part,

 reversed in part

and remanded.

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