Miederhoff v. Miederhoff, 38 Va. App. ___ 2372012, ___ S.E.2d ___ (2002)
What does this case
say?
A minor child is entitled
to child support by court order. The parents agree that if Dad pays college
expenses for the child and does not challenge custody, Mom will waive (not
claim) the child support due for that child.
Mom waits until the child
is not longer eligible for child support (a “complete change of custody”) and
Dad finishes paying college expenses. Then she goes to court to try to collect
the child support arrearage.
The court says Mom gave up
her right to collect the child support because she made an oral contract with
Dad. Dad fully performed the contract. The money Dad paid the college benefited
the child just as child support would have if Dad had paid it directly to
Mom.
Why is this case
important?
This is a bad decision for
children.
This case allows the
parent paying support to -- in certain circumstances -- strip away child
support of a minor child by making “non-conforming” payments to a third party.
This type of contract is
enforced only if:
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[The opinions of Olivier
Denier Long expressed above are not necessarily those of anyone else. Moreover,
judicial decisions vary depending on the facts, the quality of advocacy and
other variables. You should consult with an attorney before reaching a
conclusion about your own individual circumstances].
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Miederhoff v. Miederhoff, 38
Va. App. ___ 2372012, ___ S.E.2d ___ (2002)
IN
THE COURT OF APPEALS OF VIRGINIA
ARGUED
AT RICHMOND, VIRGINIA
JENNIFER MIEDERHOFF
v.
PATRICK MIEDERHOFF
Record
No. 2372-01-2
Decided:
May 28, 2002
Present:
Judges Benton, Willis and Senior Judge Hodges
FROM THE CIRCUIT COURT OF HENRICO COUNTY, George F. Tidey,
Judge
Affirmed in part, reversed in part and remanded.
COUNSEL
Janet E. Brown (Janet E. Brown, P.C., on brief), for appellant.
Matthew N. Ott (Matthew N. Ott, P.C., on brief), for appellee.
OPINION
WILLIS, J. — 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.”
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 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.
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.
“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).
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.
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 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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