Everett involves modification of child support between parties who are divorced. They have a property settlement agreement (“PSA”) providing that husband will pay $5,000.00 per month child support to wife. At the time of the trial court hearing the parties’ son is over 18 and attending college while the daughter is still a minor. The PSA says if husband seeks to reduce child support, then wife has a right to claim a share of his business, recover her attorney fees, and claim spousal support.
Husband files a motion to modify child support saying he should pay less because the son is an adult. Wife counters by saying the $5,000.00 a month is a guaranteed amount not subject to modification.
The trial court agrees with wife that the $5,000.00-a-month and son’s support cannot be modified because the court no longer has jurisdiction over his support. However the court allows husband to set a hearing on possible modification of support for the daughter because she is still a minor, and the court still has jurisdiction over support for her. Husband figures he is stuck paying the $5,000.00 per month no matter what happens at the hearing, so he declines to set a hearing. He appeals claiming the trial court erred in locking him into a fixed child support amount.
Wife’s counsel, David D. Masterman, is an accomplished family law practitioner. In my professional opinion, though, he makes two implausible arguments before the Court of Appeals:
1. Wife asserts the $5,000.00 in child support cannot be modified, even though there is no language in the property settlement agreement supporting the proposition that child support is non-modifiable.
2. At the same time that Wife asserts the $5,000.00 in child support cannot be modified she alleges the son’s child support cannot be modified because he is an adult, and concedes the daughter’s child support can be modified because she is a minor.
If the support amount owed for the daughter were reduced by the court, and the $5,000.00 in total child support payable were required to remain the same, then necessarily the son’s child support must be deemed to increase. This result places the trial court in the untenable position of increasing support for a child whose support the court no longer has jurisdiction to modify.
The Court of Appeals begins by noting “The trial court’s reading of the parties PSA is also a question of law which we review de novo.”
The court goes on to say that the Cutshaw opinion, 220 Va. 638, 261 S.E.2d 52 (1979) terminates jurisdiction over custody and child support upon emancipation.
Virginia Code section 20-124.2 (C) extends jurisdiction in cases of financial dependence and disability, but those provisions do not apply here.
Another way to extend jurisdiction over custody and child support is by specific contract language. That language must be something more than simply establishing a support obligation after majority.
To summarize, there are four different timelines for continuation of court jurisdiction in Virginia family law cases after a final order is entered:
1. Parties have 21 days after entry of a final order to request exercise of the “revisory” power of the court pursuant to Supreme Court Rule 1:1.
2. Parties have up until age 18, or age 19 and graduation from high school, for a court may exercise jurisdiction over custody, visitation and child support.
3. Jurisdiction may be extended in cases of financial need or disability. And,
4. Jurisdiction may continue to be invoked by private contract if the language extending jurisdiction is explicit.
No such privately-drafted enabling language exists in the agreement before the court in Everett. Therefore the trial court in Everett no longer had jurisdiction over support for the parties’ son; and the trial court could not modify child support payable for him. [This appears to have been a drafting error by husband’s counsel at the time of negotiation of the PSA. It certainly would have been in husband’s interest to be able to modify support for his son after he started college.]
Next, the appeals court points out that agreements are interpreted in the context of the law as it exists on the date of signing of the agreement. Therefore it may be presumed that the parties in this case were aware of Cutshaw, and the requirement established for specifically granting authority of the court to exercise jurisdiction after a child’s emancipation.
The court references the ruling in Kelley v. Kelley, 248 Vs. 295, 449 S.E.2d 55 (1994). Kelley prohibits language in an agreement that wife will pay back to husband any child support husband is ordered to pay her. Such a provision is void and unenforceable. No agreement to pay less than guideline child support is binding and enforceable if the below-guideline amount is challenged in court.
Shoup v. Shoup, 37 Va. App. 240, 556 S.E.2d 783 (2001) protects the jurisdiction of the court from being revoked by the parties. In other words, a contract cannot deprive the court of its inherent power to address custody, visitation, child support and the general welfare of children.
To summarize, Kelley protects the amount of support, and Shoup protects the jurisdiction of the court to award it. The contingency in the Everett PSA allowing wife, for the first time, to claim a share of husband’s business, recover all attorney fees, and seek spousal support – if husband ever tries to reduce child support – does not violate the proscription of Kelley; it does not have the effect of reimbursing a child support payor for child support owed.
Wife claims attorney fees in Everett, pursuant to the PSA language that she is entitled to “all” her attorney fees if husband ever seeks to reduce child support. The Court of Appeals rules that husband sought to reduce support, and wife’s pursuit of a reaffirmation of the trial court’s decision (locking-in her support entitlement at $5,000.00 a month) is not unreasonable. However, the award to wife is “reasonable” attorney fees as determined by the trial court on remand, not “all” her attorney fees as provided by the PSA, an interesting re-writing of the parties’ private agreement.
Wrapping up the decision, here is what happened: Each side earned a partial victory. On remand, the trial court must determine how much of the child support is attributable to the son, because – as Wife correctly argued on appeal -- that amount cannot be modified. Then the amount attributable to the daughter under 18 can be modified based on husband’s valid argument that jurisdiction over daughter’s support is continuing and he has the right to prove a material change in circumstances.
 The court in Kelley did something that has no relevance to Everett but I believe may need to be corrected. Kelley, at 253-54, 556 S.E.2d at 790, ratified conduct by husband unilaterally and proportionately reducing child support he paid based on his own calculations concerning the emancipation of successive children. This seemingly violates the immutable rule that parties can never (except by substantially equivalent payments) modify court ordered support. The troubling portion of the Kelley ruling that overturns an award of arrearages for a child support shortfall will hopefully be reconsidered by the Court of Appeals in the not-too-distant future.