Virginia Family Law Appeals

Support changed when custody order changed, not when child moved, by literal terms of contract - Voltz v. Voltz

CHILD SUPPORT – AGREEMENTS – RETROACTIVITY OF SUPPORT-PROVISION CHANGE – CHILD’S MOVE TO FATHER’S HOUSE.  A case from Loudoun County involving a “Parenting Agreement” between two apparently divorced spouses has perhaps been media-hyped as something more than it is.  The question in Voltz v. Voltz,____ Va. App.____, ____SE2d____, (3/27/12), was not whether the agreement was enforceable as to child support (a matter never in dispute), but how the agreement should be interpreted. For the Court of Appeals it involved interpretation of the language of a crucial clause as to retroactivity of support-amount changes and also the statutory power of courts to grant such remedies. Father contended that the trial court erred and was not faithful to the written agreement when it refused to modify the child support amount retroactive to the actual day their daughter’s residence changed from mother’s house to his house. The Court of Appeals also had to interpret the arbitration decision that resulted from the parties’ dispute, since the agreement provided that the dispute should be arbitrated. That decision, helpfully or unhelpfully, but somewhat oddly, determined a child support amount, and said that future modifications would be justified in the event of “a material change in the Parenting Agreement,” which would seem to be a circular way of saying never. The father certainly had not slept on his rights: the day after the daughter moved in with him full time, he moved to modify the custody order, and the trial court then awarded him physical and legal custody.  When he moved to modify child support, the dispute was over the date the new amount should start.  The trial court held that the new amount should start only from the date the new custody order was entered.  That meant that he still had to pay for the entire year 2008 despite the daughter’s living with him a significant part of the year.  On appeal the father claimed that the trial court had thereby modified in non-compliance with the agreement, since there was certainly a “material change,” in the sense used by that contract when the daughter moved. Support payments become judgments as they become due, so generally courts can modify only retroactive to the time of filing for modification, but courts are allowed to impose a solution reflecting the parties’ agreement about future modifications, as such provisions are “valid and enforceable,” under §20-109.1. And that leaves the arbitrated agreement, which did include a provision binding them to modified child support immediately if one of the children moves to the other’s residence.  Here, in arguing for the earlier modification affecting this date, the father relied on the “if there is a material change in the Parenting Agreement …” language of the arbitrated decision. Now obviously, as the appellate court noticed right away, that decision calls for changes in the agreement itself, not in the residence of the child. A modification of the agreement took place when the circuit court modified it by changing the daughter’s custodial residence by Order dated April 17, 2009, but there hadn’t been a change to the agreement before that. Changes in the language of a written agreement are certainly not the same thing as a change in actual physical location of a child’s home. The Court goes on to make the matter even more abstract by more deeply analyzing the agreement itself, but that didn’t change the result.  After his first argument understandably failed, the father went on to invoke another paragraph of the agreement saying that “child support payments shall continue to the … cessation of his or her residence with either parent.” In a bit of reasoning that may leave some readers struggling behind, the appellate court says that that language meant when the family support obligation ended rather than the time physical residence ended.  But it’s obvious that neither one of the parties intended to end the child support obligation entirely upon this change of residence, since that would contradict the earlier agreement paragraph stating that modification would happen if both children ended up residing primarily with one party, and if the agreement itself changed.  Obviously, this appeal was not a frivolous one, and the father’s argument had been “fairly debatable,” so such fees are denied.  The trial court did not violate the terms of the Parenting Agreement and therefore the decision is affirmed.    

 

Agreement wasn't specific enough to automatically reduce support when 1 child aged out.

CHILD SUPPORT – NO CHANGE IF CHILD AGES OUT – SEPARATION AGREEMENTS. How dare people try to keep their cases out of court by putting something they don’t disagree about and don’t want to fight about into an express written agreement?  That seems to be judicial attitude demonstrated in a case called Virostko v. Virostko, ___ Va. App. ___, ___ S.E.2d ___, 26 VLW 1223 (3/20/12), where a couple (and probably their lawyers), proceeded on an unwarranted assumption about what lay people, and probably most non-Virginia judges and lawyers, doubtless regard as the most self-evident proposition in all family law: the ability of obligors to regard a child support obligation as ended when the child in question becomes an adult at age 18 (or 19…, etc.). Of course they only gave the Court of Appeals another chance to pontificate on how they surely ought to know that child support termination upon attainment of majority “is not self-executing.” Well O.K., so it’s not. But these foolish people felt that they were agreeing on child support amounts, and that if you put how the child support is going to diminish in your separation agreement, in writing, maybe then it can “self-execute,” can’t it?  Of course not, the voices from on high intoned. It’s a job for judges -- and not common folk -– to make decisions about. Now of course we, who labor in these stony vineyards all the time, know full well how you can’t chip away at this judicial discretion that’s seen as such a sacred trust, and so long as Best Interest is part of the law of child support, it won’t change. Still devilishly counter-intuitive for the naive bumpkins who pay and receive it. But what of that? The Court of Appeals does, however, provide some prescriptive criticism about just how this incredibly acrobatic and otherwise-unthinkable feat can (supposedly) be performed. An incorporated final decree under §20-109.1 permissibly incorporates a valid such provision on three conditions: (1) Before approving incorporation, the trial judge at the time of the divorce must review the reduction-formula provisions for consistency with Virginia statutory public policy and the particular child’s best interests; (2) There has to be language added making clear that this doesn’t preclude some judge in the future from exercising the sovereign power to modify all this; and (3) The parties can’t, by invoking this agreement, terminate a supporting parent’s duty to pay support for that child. (Uh,……… yeah.) Of course if this is supposed to prevent an obligor from receiving that nasty shock we all know about when his child ages out, it’s clearly a safety net so full of holes that these parties and their counsel are likely to throw up their hands and give up on the effort. But wait, the Court says more. If none of the above three things would seem to do the trick, the Court of Appeals explains that the provision involved here merely said the parties would either agree upon a new amount based on the father’s then income, or assume that they cannot agree and return to court.  That provision does not provide an “objective standard by which the parties could determine a new amount.” That makes it nothing but an agreement to try to agree, and if you have a self-executing agreement, it can’t be one of those.(Let’s see. First full moon after majority obtained? That’s objective.) Thus the trial court’s ruling that self-execution did not happen here is affirmed. 

QDRO can be used to enforce support - Va. Ct. in Nkopchieu v. Minlend

SUPPORT ENFORCEMENT – PENSIONS – USE OF QDRO TO ENFORCE.  Less than three months before the Legislature got around to passing this Session a statute authorizing the courts to use a Qualified Domestic Relations Order as a support-enforcement device, a case called Nkopchieu v. Minlend, 59 Va. App. 299, 718 S.E.2d 470 (12/20/11), held that existing law authorized courts to do that anyway. It would not be fair to say that was the judges’ way of telling the General Assembly not to meddle in matters of legal development and public policy, especially as the two branches agreed here. The whole matter would probably have been much simpler and never have arisen, or have been determined years ago, except for the Virginia appellate courts’ dogmatic and doctrinaire approach to the abstract question of whether to characterize an income stream like a pension as income or property. Of course we must remember that the declaration that pensions are property, and other money flow is income, and never the twain shall meet, is what enables the courts to double dip on behalf of non-employee spouses and treat the same money as property in order to divide it in equitable distribution and then order the retired wage earner to pay the rest of it to the ex-wife in alimony and child support, even if it’s now his only income. It’s frequently explained that this is proper because she has two sacred rights of entitlement to that same fund in the hermetically-sealed categories of property and income.  This abstraction has perhaps been what confused some trial judges for so long, despite the clear intent of the first pension-division  statutes, the federal employee ones, that a judge could order division of the pension for property division purposes or support purposes. The unpronounceable instant case was a rather unusual one, in which this husband had failed to make any of the ordered child support payments, and the wife filed an unsuccessful motion for entry of a QDRO to attach husband’s QDRO for the sole purpose of paying the child support arrearage. The arrearage had been over $28,000. His retirement account was the only asset available for attachment and the Court of Appeals  held that this was a proper remedy, including making the ex-wife an “alternate payee” of the plan’s benefits by QDRO under ERISA, specifically 29 U.S.C. §1056(d)(3)(J, K). Though the trial judge thought his denial was required by Hoy v. Hoy, 29 Va. App. 115, 510 S.E.2d 253 (1999), the Court of Appeals held that neither that case nor any other provisions of Virginia domestic relations law keeps circuit courts from granting such a QDRO, and neither does ERISA. The appellate judges distinguish Hoy as an attempt to reopen a divorce case that had already been filed for over 20 years to enter a QDRO against a retirement account that did not even exist at the time of the divorce.

 

Perhaps more interesting in Nkopchieu v. Minlend was the father’s argument that the mother was precluded by a pre-marital agreement in which she expressly disavowed any property interests in husband’s retirement assets.  Her counsel argued that ERISA allows the court to enter a QDRO for the two separate purposes of property division and support, and that she was not looking for property division at all in this instance, but invoking the second purpose of the QDRO in addressing child support use of a retirement account. The marital agreement in fact provided too that “nothing in this agreement shall be construed as limiting the right of either party to make claims for child support,” and the mother said she was simply pursuing a claim for the arrears of unpaid child support. She was trying to enforce her children’s rights to support through a garnishment-like process, and not to establish property rights for herself. And mother’s counsel argued that this woman could have enforced a judgment against a debtor even if she had never been married to this man.  Indeed, the Court of Appeals says, it is established Virginia law that the obligation of child support is owed to the child, not the mother.  What the mother does when she sues is act as a “conduit” for the payment of support to the children.

 

     True, ERISA does say that retirement funds cannot be assigned or alienated, but this prohibition, the Court of Appeals says, does not apply when a state domestic relations order is determined to be a qualified one under 29 U.S.C. 29 U.S.C. §1056 (d)(3). QDROs are an exception to the alienation and assignment provision.  Section 20-107.2, the court says, authorizes making fathers pay their child support obligations.  The court said it could not reach the question of whether the mother’s draft QDRO actually qualified as one under ERISA’s “technical” requirements about the contents of such orders, because the trial judge never reached those questions in the trial below.  It was remanded to give him an opportunity to do so.