Host: A New Unpublished Opinion from the Virginia Court of Appeals

Host v. Host, [Record No. 2134-14-4, November 3, 2015], involves the manner of crediting third-party payments of child support pursuant to a consent order. Had I been on the appellate panel, I would have dissented. I think the majority failed to apply a widely-accepted rule of contract construction that vindicates the father’s position. I would have reversed the decision of the trial court.

The operant sentence in the consent order says mother shall “expressly acknowledge and credit any payment she shall receive from [James Host] toward [father’s] child support obligations set forth in this Order.” James Host is her father-in-law.

The issue is whether these words limit credit to the amount due on the date payment is made, or in the alternative, whether they require excess payments be applied to child support coming due in the future.

Fairfax Circuit Judge Dennis Smith construed the provision narrowly, invoking the presumption that excess child support is a gift unless the presumption is expressly and specifically modified. The court of appeals affirmed, finding no specific modification of the “gift” rule.

I believe that Judge Smith and the Court of Appeals might have applied a different rule: All words in an agreement are presumed to have meaning. If they had applied that rule, it is likely they would have reached the opposite conclusion.

According meaning to all words in a contract (or a consent order) works like this: If interpretation “A” would be unaffected by removal of a phrase, while interpretation “B” would be affected; then interpretation “B” is the favored choice that accords meaning to all words and should be deemed the intent of the parties.

In Host, the “key phrase” that we want to “flip on and off” for comparison is the following: “… toward [father’s] child support obligations set forth in this Order”.

A. Interpretation “A” is that the full sentence, including the key phrase, makes money from father-in-law to mother apply only to child support due in the past and in the month the payment is made. Any extra money is a gift to mother, and does not count as child support at all. This is the reasoning of Judge Smith and the Court of Appeals.

B. Interpretation “B”, which I am suggesting should have been adopted instead, is that the full sentence, including the key phrase, applies to child support due in the past, present and future.

Here is how it works:

1. In condition “1”, we apply the sentence with the key phrase. It reads like this: “… expressly acknowledge and credit any payment she shall receive from [James Host] toward [father’s] child support obligations set forth in this Order.”

2. In condition “2”, we apply the sentence without the key phrase to see if the meaning of the sentence is changed. The sentence without the key phrase is “… expressly acknowledge and credit any payment she shall receive from [James Host].”

Let’s mix and match, and see what happens.

First, compare A + 1 to A + 2. The meaning of the sentences is identical! Either way, they require mother to credit father-in-law’s money towards past and present child support. Mother does the same thing with the money whether the key phrase is included or not. In other words, for interpretation “A”, the key phrase is surplusage. This interpretation is disfavored, because you can add or delete a phrase without changing the meaning of the sentence at all.

Now, compare B + 1 to B + 2. They mean something different. B + 2 clearly addresses past and present money, and over-payments as gifts, just like A + 1 and A + 2. But B + 1 affirmatively precludes treating father-in-law’s money as a gift. How does it do that? B + 1 requires that all money, whenever paid and in whatever amount, be credited towards child support!

This principal of contract construction is appellate law in Virginia:

In construing contracts “[n]o word or clause in the contract will be treated as meaningless if a reasonable meaning can be given to it, and there is a presumption that the parties have not used words needlessly.” D.C. McClain, Inc. v. Arlington Cnty., 249 Va. 131, 135-36, 452 S.E.2d 659, 662 (1995).

I believe that if the majority in Host had invoked this recognized principal, they would have determined that specific language of the parties refuted the presumption of gift, and they would have ruled in favor of the father instead of the mother.

A footnote in the opinion implicitly discourages the re-numbering of paragraphs in each section of an appellate brief.