One of the great benefits of unreported Virginia opinions is the citations they contain to reported opinions. The same case law authorities are quoted so frequently that appellate judges seem to be stockpiling them as if they were building materials. To me, they are the equivalent of bricks, drywall, and door frames for a homebuilder. I store them away for future use in oral argument, written motions and appellate briefs.
To illustrate the key words and phrases that I index, here are two from my collection — child support and clerical error:
Related key words:
Relevance of payor's spouse in a child support matters:
Orlandi v. Orlandi, 473 S.E.2d 716, 23 Va.App. 21, 29 (Va. App., 1996)
Section 63.2-1900 Definitions "Health care coverage" means any plan providing hospital, medical or surgical care coverage for dependent children provided such coverage is available and can be obtained by a parent, parents, or a parent's spouse at a reasonable cost.
Here are the general rules for paying support pursuant to a court order: 1. Overpayments of support, and payments in advance never entitle you to a credit against future support that you owe. 2. Payments to third parties and payments in kind (gold bricks, for example) rarely are allowed to reduce the dollar amount you owe directly in support. In other words, you do not get credit for doing those things. Getting credit for such conduct is complicated, and better not attempted at all. 3. Underpayments of support can always be supplemented. However, you should never underpay without a valid reason, since failure to pay support is often contempt of court and may land you in jail. 4. You may never reduce or under-pay support by off-setting anything your ex owes you (like rent) except for child support; and you may ONLY adjust for child support owed to you if the adjustment has been authorized by written court order (as we expect yours will be). And finally, 5. Support can rarely be reduced or modified by any agreement you make directly with your ex-spouse. The times when you are allowed to do this are so exceptional that you are unlikely to ever qualify. It is safer not to change your support payments until after going to court and obtaining a modified order.
+++ [W]e have consistently held: "[A] former spouse must make payments according to the court’s decree; a spouse’s delay in pursuing enforcement, or acquiescence by accepting a lesser amount than the court award, or an agreement to accept a lesser sum than the award, will not relieve the obligor nor will it prevent accumulation of an arrearage." Schmidt, 6 Va. App. at 504, 370 S.E.2d at 313 (citing Richardson v. Moore, 217 Va. 422, 229 S.E.2d 864 (1976)). Virostek, 20 March 2012 Record No. 1546-11-4
+++ CS cannot be non-conforming unless there was a CS award. Junes, 43 Va App 9 Credit for non-conforming payment is an exception to statutory limitation on retroactive modification of past due CS. Gallagher, 35 Va App 470, 476. CS deviation requires written findings. Mayers, 15 Va App 587, 592. 20-1081 (B) CHILD CARE COST including DAY CARE. are mandatory inclusions in CS formula. 20-108.2(F) But failure to adequately prove the expense allows court to omit it. Bowers, 4 Va App 610, 617.
++++++++ PRIVATE SCHOOL AND COLLEGE: "Decisions concerning child support rest within the sound discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence." Smith v. Smith, 18 Va.App. 427, 433, 444 S.E.2d 269, 274 (1994). Joynes contends that the trial court lacked statutory authority to order payments of child support for educational expenses. However, Code § 20-108.1(B) clearly states that the presumptive child support amount may be rebutted. Such a finding shall be determined by considering several factors "affecting the obligation, the ability of each party to provide child support, and the best interests of the child." Code § 20-108.1(B). One of these factors is "[d]irect payments ordered by the court for .. education expenses, or other court-ordered direct payments for the benefit of the child . ." Code § 20-108.1(B)(6).
We have applied this language in finding that "a parent may be required to pay for private educational expenses, even though such expenses exceed the guidelines, when there is a demonstrated need for the child to attend private school and the parent has the ability to pay." Ragsdale v. Ragsdale, 30 Va.App. 283, 295, 516 S.E.2d 698, 704 (1999) (citing Solomond v. Ball, 22 Va.App. 385, 391, 470 S.E.2d 157, 160 (1996)). In making this determination, the trial court must consider "factors such as the availability of satisfactory public schools, the child's attendance at private school prior to the separation and divorce, the child's special emotional or physical needs, religious training, and family tradition." Solomond , 22 Va. App. at 391, 470 S.E.2d at 160. Joynes v. Payne, 35 Va. App. 386, 407, 545 S.E.2d 561 , 571 (Va. App., 2001)
+++ SPOUSAL SUPPORT APPELLATE REVIEW When determining a spousal support award, the circuit court “must consider all the factors enumerated in Code § 20-107.1(E),” Miller v. Cox, 44 Va. App. 674, 679, 607 S.E.2d 126, 128 (2005), and set forth “findings or conclusions identifying the [Code § 20-107.1(E)] factors . . . that support the spousal support award,” Robinson v. Robinson, 50 Va. App. 189, 196, 648 S.E.2d 314, 317 (2007). When the record demonstrates, as it does here, that the trial court has duly considered the Code § 20-107.1(E) factors, “its determination ‘will not be disturbed except for a clear abuse of discretion.’” Brooks v. Brooks, 27 Va. App. 314, 317, 498 S.E.2d 461, 463 (1998) (quoting Dodge v. Dodge, 2 Va. App. 238, 246, 343 S.E.2d 363, 367 (1986)). See also: support credit non-conforming child support variation modification factors UIFSA CS cannot be non-conforming unless there was a CS award. Jones v. Davis, 43 Va. App. 9, 595 S.E.2d 501 (Va. App., 2004) Credit for non-conforming payment is an exception to statutory limitation on retroactive modification of past due CS. Gallagher, 35 Va App 470, 476. CS deviation requires written findings. Mayers v. Mayers, 425 S.E.2d 808, 15 Va.App. 587 (Va. App., 1993). 20-108.1 (B) CHILD CARE COST including DAY CARE. are mandatory inclusions in CS formula. 20-108.2(F). But failure to adequately prove the expense allows the court to omit it. Bowers v. Bowers, 359 S.E.2d 546, 4 Va.App. 610 (Va. App., 1987).
+++ “[T]here shall be a rebuttable presumption in any judicial or administrative proceeding for child support . . . that the amount of the award which would result from the application of the guidelines set out in § 20-108.2 is the correct amount of child support to be awarded.” Code § 20-108.1(B). “[D]ecisions concerning child support rest within the sound discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence.” Barnhill v. Brooks, 15 Va. App. 696, 699, 427 S.E.2d 209, 211 (1993) (citing Young v. Young, 3 Va. App. 80, 81, 348 S.E.2d 46, 47 (1986)). “[S]upport must be based upon ‘circumstances in existence at the time of the award’ and not upon speculation or conjecture.” Brooks v. Rogers, 18 Va. App. 585, 592, 445 S.E.2d 725, 729 (1994) (quoting Payne v. Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987)). The decision whether to deviate from the child support guidelines is within the discretion of the trial court. See Rinaldi v. Dumsick, 32 Va. App. 330, 337, 528 S.E.2d 134, 138 (2000).
+++ UIFSA 2008 Sec 211: Only originating state can modify CS. Continuing exclusive jurisdiction. (All states ratified UIFSA, but not all ratified Sec 211.)
+++ CHILD SUPPORT CREDIT for NON-CONFORMING PAYMENTS Child support payments required under a valid court order become vested as they accrue, and the court is without authority to make any change as to past due installments. Generally, the terms of a support decree must be strictly complied with and payments made when due to the designated payee in accordance with the terms of the decree. When changed circumstances dictate a modification of a support decree, the appropriate remedy is for the party to petition the court to modify the decree. The party or parties may not unilaterally or bilaterally vary its terms. However, although 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 the support order. A court may, when equitable and under limited circumstances, allow a party credit for non-conforming support payments, provided that the non-conforming payment substantially satisfies the purpose and function of the support award and to do so does not vary the support award. Commonwealth v. Skeens, 18 Va. App. 154, 158, 442 S.E.2d 432, 434-35 (1994) (emphasis added) (citations omitted); see also Jones v. Davis, 43 Va. App. 9, 13-14, 595 S.E.2d 501, 503 (2004). “‘Typically, two conditions must exist before credits will be given for non-conforming payments: (1) an agreement by the parties which modifies the terms or method of payment; and (2) no adverse effect on the support award.’” Gallagher v. Gallagher, 35 Va. App. 470, 476, 546 S.E.2d 222, 225 (2001) (en banc) (quoting Wilderman v. Wilderman, 25 Va. App. 500, 506, 489 S.E.2d 701, 705 (1997)). If these conditions are not met, “‘payments made by an obligated spouse over and above court-ordered monthly support are considered gifts or gratuities.’” Buxbaum v. Buxbaum, 20 Va. App. 181, 186, 455 S.E.2d 752, 755 (1995) (quoting Sanford v. Sanford, 19 Va. App. 241, 248, 450 S.E.2d 185, 190 (1994)). A further limited exception exists, inapplicable here, where the custodial parent has agreed to relinquish custody on a permanent basis to the other parent. Acree v. Acree, 2 Va. App. 151, 157, 342 S.E.2d 68, 71 (1986).
In Gallagher, we refined our prior cases, holding that “to the extent our case law may be interpreted to hold that payments to ‘third party vendors’ may constitute non-conforming child support payments for which the payor spouse is entitled to receive credit . . . we expressly reject such an interpretation.” 35 Va. App. at 479, 546 S.E.2d at 226. Examples of such “third party vendors” include items such as “day care, doctor visits [and] food.” Id. at 479 n.1, 546 S.E.2d at 226 n.1. Absent an agreement between mother and father, payments made by father to a third party – 19 – vendor, in this instance a school, are considered gifts or gratuities and may not be credited toward father’s child support obligation. Zedan v. Westheim, Va App 2012
+++ PRESUMPTIVE GUIDELINE AMOUNT IS CORRECT: Code § 20-108.1(B) provides in part: In any proceeding on the issue of determining child support under this title, . . . the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court’s decision in any such proceeding shall be rendered upon the evidence relevant to each individual case. However, there shall be a rebuttable presumption in any judicial or administrative proceeding for child support, including cases involving split custody or shared custody, that the amount of the award that would result from the application of the guidelines set out in § 20-108.2 is the correct amount of child support to be awarded. “Decisions concerning [child] support rest within the sound discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence.” Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994).
The Virginia Supreme Court has “consistently held that the statutory authority of [Code § 8.01-428(B)] should be narrowly construed and applied.” Morgan v. Russrand Triangle Assocs., Inc., 270 Va. 21, 25, 613 S.E.2d 589, 591 (2005). Thus, “‘scrivener’s or similar errors in the record, which are demonstrably contradicted by all other documents, are clerical mistakes.’ Clerical errors cause the court’s record to fail to ‘speak the truth.’” State Farm Mut. Auto. Ins. Co. v. Remley, 270 Va. 209, 221, 618 S.E.2d 316, 322 (2005) (quoting Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 283, 568 S.E.2d 671, 673 (2002)).
“‘Examples of clerical errors include a typographical error made by a court reporter while transcribing a court proceeding, or an unintended error in the drafting of a divorce decree.’” Morgan 270 Va. at 25-26, 613 S.E.2d at 591(quoting Wellmore, 264 Va. at 283, 568 S.E.2d at 673).
+++ Code § 8.01-428(B) allows for a trial court to correct clerical mistakes.
“Scrivener’s or similar errors in the record, which are demonstrably contradicted by all other documents, are clerical mistakes.” Zhou v. Zhou, 38 Va. App. 126, 133, 562 S.E.2d 336, 339 (2002). “Scrivener’s errors tend to occur singularly.” Westgate at Williamsburg Condo. Ass’n, Inc. v. Philip Richardson Co., Inc., 270 Va. 566, 576, 621 S.E.2d 114, 119 (2005).
In Dorn v. Dorn, 222 Va. 288, 279 S.E.2d 393 (1981), the Supreme Court of Virginia held that an attorney’s error in drafting the final decree of divorce was a scrivener’s error. In Dorn, the attorney wrote that father’s child support obligation for each of the two children was $100 bi-weekly, as opposed to $100 per month. Id. at 290, 279 S.E.2d at 394. Father had paid the support as $200 per month, or $100 per month for each child, for several years. Id. The attorney who drafted the document explained that he changed “per month” to “bi-weekly” to ensure that payments were made every other week, but he did not intend to change the amount of support. Id.
Likewise, in this case, wife’s attorney erroneously referred to Code § 20-107.1, instead of Code § 20-107.3, in the prayer for relief in the cross-bill. The trial court noted that wife asked the trial court to classify and value the parties’ real and personal property and also requested temporary and permanent spousal support. To adopt husband’s argument that she was referring to her request for spousal support by citing to Code § 20-107.1 would mean that she would have been asking for spousal support in three different ways. The trial court concluded that this was “nonsensical.”