Virginia Child Support: Outside the Box Thinking Put in a Box

Everett v. Everett, Record No. 2299-14-4 (Va. Ct. Appeals 2015) is a weird case.  In that case, the parties entered into a property settlement agreement that included these odd provisions:

            “In recognition of the Children’s living expenses, including two private school tuition, summer camps, work-related child care, transportation, insurances, in addition to food, clothing and housing, Husband agrees to pay Wife the sum of Five Thousand and 00/100 ($5,000) per month as and for child support commencing July 1, 2004, and continuing until each child graduates from college . . . The parties acknowledge and agree that this amount of child support and its duration are an upward adjustment from Virginia’s child support guidelines.”

            “In the event that Husband ever seeks a downward adjustment in his child support obligations, Wife shall be entitled to pursue her marital share of Husband’s business interests and to pursue spousal support, both of which were waived to obtain child support beyond Virginia’s guidelines.”

In addition, the agreement provided that the parties would “share equally all expenses of the children’s undergraduate educations, including tuition as well as room and board.  Also, that “in the event Husband seeks a downward adjustment in his child support obligations, he shall be responsible for all of Wife’s attorney’s fees and costs.”  Notably, the agreement did not specify any details on how modification of child support was supposed to work for any emancipated child.

It’s unusual to see someone agree to pay more than guideline child support.  It’s unusual to see someone agree to pay child support through college in Virginia.  It’s very unusual to see someone agree to pay child support through college and half of college tuition and room and board.  And it’s very unusual to have someone agree to pay the other’s attorney’s fees and be subject to a possible spousal support and equitable distribution award if they simply seek a reduction of child support in the future.[1]  What an odd arrangement!

Anyway, of course, the husband in this case filed a motion to reduce his child support obligation when the oldest child went away to college, the youngest got a private school scholarship, and the wife’s income presumably increased.  And, of course, the courts struggled with how to untangle this mess.  The trial court basically told the husband that he couldn’t win here.  He’d always owe $5,000 per month until the youngest graduated college.  So he appealed to the Virginia Court of Appeals, which went through the trouble of answering these tricky legal questions:

– Was the court precluded from modifying the oldest child’s support obligation since he was no longer a minor? 

Yes.  Trial courts have no jurisdiction to award child support to emancipated children in the absence of an agreement.  More specifically, the court can only award child support to emancipated children exactly as the parties spell out in their agreement.  In this case, while the agreement is clear that support can be payable to an emancipated child, the agreement contains no language permitting modification of the eldest child’s portion of the child support award.  Without such language, the court lacks the authority to modify child support for the emancipated oldest child.  See, e.g., Cutshaw v. Cutshaw, 220 Va. 638 (1979) (per curiam).

– Was the court precluded from modifying the youngest child’s support obligation since she was still a minor?

No.  You can’t contract away the court’s “power to change, modify, or enforce its decree concerning the custody and maintenance of minor children.”   See, e.g., Shoup v. Shoup, 37 Va. App. 240 (2001).

– But isn’t the $5,000 child support award indivisible between the two children? 

No.  First, there is nothing in the agreement indicating that the support award cannot be apportioned between the two children.  Second, the agreement itself contemplates modification of support, thus undercutting the idea that the award is indivisibly fixed at $5,000.  Third, it would be impermissible to hold that the award is indivisibly fixed at $5,000 under the aforementioned Shoup and Kelly.

– But how can anyone figure out what part of the child support award is attributable to the older child versus the younger one?

Uh, good luck with this one on remand trial court!

– Did wife get her attorney’s fees per the agreement because husband sought to reduce his child support obligation? 

Yes, she did, including in the appeal.

– So what happens next?

The case will be (or was) remanded back to the trial court.  The trial court cannot modify the eldest son’s portion of the $5,000 child support award, but will consider modification of the youngest child’s portion of the same.  The wife will again be awarded her attorney’s fees incurred in the subsequent litigation on remand.  And she may very well petition for spousal support and/or equitable distribution of her former husband’s business interest.  All in all, I can’t help but wonder whether the former husband’s decision to modify his child support obligation was a wise one.  Unless the trial court treats the unmodifiable portion of the support award dedicated to the eldest son as being quite small, it sure looks bad from here.

[1] In case it’s unclear, the parties reached an unusual deal, had an attorney’s fees provision as a deterrent against someone reneging on the deal, and another provision that allowed the parties to get back to square one by bringing spousal support and equitable distribution back into the fold in the event that the payor spouse reneges on the deal.  So, all in all, this looks pretty well thought out, though the provision requiring child support until each child “graduates from college” is awfully dangerous given that at least one of the kids might not graduate.