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SHOUP v. SHOUP



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SHOUP

v.

SHOUP


FEBRUARY 27, 2001

Record No. 0098-00-4

Present: Chief Judge Fitzpatrick, Judges Benton
and Annunziata

Argued at Alexandria, Virginia

FRANCIS E. SHOUP

v.

HEIDI S. SHOUP

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Kathleen H. MacKay, Judge


OPINION BY JUDGE ROSEMARIE ANNUNZIATA

Betty A. Thompson (David M. Levy; Surovell,
Jackson, Colten & Dugan, on brief), for appellant.

Valerie Szabo (Valerie Szabo, P.L.L.C., on
brief), for appellee.

Francis E. Shoup ("father") appeals
from the judgment of the Circuit Court of Fairfax County finding
him in arrears for child support payments in the amount of
$33,838.20, plus interest, as well as attorney’s fees and costs.
The court also found father in contempt. He contends the trial
court erred: (1) by disregarding the emancipation of two of the
parties’ children in computing arrearages; (2) in finding him in
contempt and ordering him to pay arrearages accruing after
September, 1995, given evidence that he had paid an amount
equivalent to what he owed according to the Virginia support
guidelines; (3) in finding that the parties’ agreement concerning
modification of child support was self-executing as to changes in
child-care costs, but was not self-executing upon the
emancipation of a child; (4) by declining to enforce the parties’
purported self-executing agreement on child support modification;
and (5) in awarding attorney’s fees to Heidi S. Shoup
("mother").

The mother appeals the trial court’s award of
credit to the father for child-care costs. The mother alleges the
trial court erred: (1) by awarding a credit to the father for
child-care costs in the absence of a request for such a credit;
(2) in retroactively crediting child-care costs when the child
support award had not been modified; and (3) in determining that
mother had conceded the issue of child-care expenses.

We affirm the order in part, and reverse, in
part.

BACKGROUND

The parties were divorced by a final decree of
divorce entered by the Fairfax County Circuit Court on September
1, 1994. At the time of the divorce, the parties had three minor
children: Allison Elliot Shoup, born November 30, 1977; Francis
Elliot Shoup, IV, born June 8, 1979; and Kyle A.M. Shoup, born
June 20, 1985. The final divorce decree incorporated the parties’
June 27, 1994 Custody, Support and Property Settlement Agreement.
[1] In accordance with the parties’
agreement, the final decree ordered the father to pay $2,177 per
month in child support to the mother. The decree also provided
for a proportionate division of certain medical expenses and for
reimbursement of child-care costs based on the parties’ relative
annual gross incomes as calculated in the support guideline
worksheet, Attachment A to the agreement.

The oldest child, Allison, graduated from high
school in June, 1995 and turned eighteen years of age on November
30, 1995. Beginning in October, 1995, the father unilaterally
reduced the amount of support by approximately one-third to
$1,452 per month. Also beginning in October, 1995, child-care
costs were no longer incurred. The second child, Elliot,
graduated from high school in May, 1997 and turned eighteen in
June, 1997. Beginning in June, 1997 the father again unilaterally
reduced the amount of support by another one-third to $764 per
month. Although the father unilaterally reduced the amount of
support paid on each of these two occasions, the record shows
that the mother did not object until she filed the present suit
to collect the arrearages.

On April 13, 1999 the mother filed a petition
for a rule to show cause against the father for failing to pay
$2,177 per month in child support. The matter was heard on June
24, 1999. In its letter opinion dated October 30, 1999, the trial
court found the father to be in contempt of court and found that
he was in arrears as to the support amount contained in the final
decree from October, 1995 through May, 1999. Based on the
parties’ agreement as incorporated into the final decree, the
trial court also awarded father a credit for his payments of
child-care expenses that had not been incurred by the mother. The
trial court entered an order dated December 7, 1999 finding the
father in contempt and entered judgment against the father in the
principal sum of $33,838.20, with interest running at the
judgment rate. It also awarded mother her attorney’s fees.

ANALYSIS

I.

Automatic Reduction in
Support upon Emancipation

The father contends the trial court erred in
holding him in contempt. He argues that the terms of the final
divorce decree and incorporated property settlement agreement
permitted him to automatically reduce his child support payments
when each child reached the age of eighteen and graduated from
high school. We disagree.

Because the "best interest of the child or
children is the paramount and guiding principle in setting child
support," Watkinson v. Henley, 13 Va. App. 151, 158,
409 S.E.2d 470, 474 (1991), the court must approve modifications
to the amount of support at the time the modification is made. See
Cofer v. Cofer, 205 Va. 834, 838, 140 S.E.2d 663, 666
(1965); Bennett v. Commonwealth, 22 Va. App. 684, 696, 472
S.E.2d 668, 674 (1996); Goodpasture v. Goodpasture, 7 Va.
App. 55, 58-59, 371 S.E.2d 845, 847-48 (1988). As we noted in Goodpasture,
modifications by agreement without prior court approval
"substitute the self-determined interests of one or both of
the parents over the court-determined best interests of the
child." Goodpasture, 7 Va. App. at 59, 371 S.E.2d at
848.

The emancipation of a child does not constitute
an exception to Virginia’s decisional law that precludes the
court from ordering modification of support prospectively and
without its approval. The rule applies even when the emancipation
of one child is the proposed catalyst for the modification by
agreement, except in one well defined circumstance not applicable
here. When an undivided child support award has been made for
multiple minor children, the emancipation of a child, except the
last remaining in custody, does not permit automatic termination
or modification of support. See Eaton v. Eaton, 215
Va. 824, 828 n.3, 213 S.E.2d 789, 792 n.3 (1975); see also
S.R. Shapiro, Propriety and Effect of Undivided Award for
Support of More than One Person
, 2 A.L.R.3d 596, ? 5
(1965 & Supp. 2000).
[2] Although under Eaton, the court’s jurisdiction
to enforce support awards ends with the child’s majority or
emancipated status, Eaton does not stand for the general
proposition that a child support award addressing the needs of
multiple minor children may be automatically and either
unilaterally, or by agreement, modified without court approval
upon emancipation. Eaton, 215 Va. at 826, 213 S.E.2d at
791.
[3]

The prevailing and well-established principle
of law requiring contemporaneous court approval of modifications
has not been diminished or eroded by the Commonwealth’s public
policy favoring "prompt resolution of disputes concerning
the maintenance and care of minor children." Morris v.
Morris
, 216 Va. 457, 459, 219 S.E.2d 864, 867 (1975). The
parties cannot by agreement limit or terminate the court’s
jurisdiction to make and modify child support awards. See Scott
v. Scott
, 12 Va. App. 1245, 1249, 408 S.E.2d 579, 582 (1991)
("[A]greement[s] between husband and wife cannot prevent the
court from exercising its power to make and modify child support
awards."); see also Featherstone v. Brooks,
220 Va. 443, 446, 258 S.E.2d 513, 515 (1979) ("Code
? 20-108 gives the divorce court continuing jurisdiction to
change or modify its decree concerning the custody and
maintenance of minor children, and a contract between husband and
wife cannot prevent the court from exercising this power.").
"Should circumstances change requiring alteration in the
amount of support, a party’s remedy is to apply to the court for
relief." Goodpasture, 7 Va. App. at 58, 371 S.E.2d at
847; see also Kaplan v. Kaplan, 21 Va. App. 542,
548, 466 S.E.2d 111, 114 (1996) (quoting Code ? 20-108).

Father nevertheless contends that, because the
agreement was incorporated into the decree, the court was bound
to enforce the parties’ agreement permitting modification of
child support without court approval. To be sure,
"incorporation of the [child support] agreement . . . into the decree render[s] the
terms of the agreement so incorporated enforceable as a decree of
the court." Fry v. Schwarting, 4 Va. App. 173, 179,
355 S.E.2d 342, 345 (1987). However, a decree that incorporates
an agreement permitting automatic, unilateral, or agreed upon
modification of support without prior court approval is a legal
nullity and void. Kelley v. Kelley, 248 Va. 295, 298-99,
449 S.E.2d 55, 56-57 (1994) (because "parents cannot
contract away their children’s rights to support," any
provision which impinges upon the right of children to support is
void, and a decree which incorporates such provision is likewise
void); see also Riggins v. O’Brien, 34 Va. App. 82,
538 S.E.2d 320 (2000).
[4]

Furthermore, father’s position that the terms
of the final decree itself permitted automatic modification of
the child support award upon the emancipation of each child also
fails to consider that, under Virginia law, the court cannot
order prospective modification of child support upon the
occurrence of a future event. See Solomond v. Ball,
22 Va. App. 385, 470 S.E.2d 157 (1996) (reversing support decree
which ordered father to pay a percentage of children’s education
expenses, rather than a specific amount); Keyser v. Keyser,
2 Va. App. 459, 345 S.E.2d 12 (1986) (reversing support decree
which provided for automatic increase or decrease in father’s
obligation according to the percentage increase or decrease of
his annual income). As we have stated:

[N]eeds and capacities change as circumstances
change and [] these changes are not always fairly predictable.
Determination of support awards must be based on contemporary
circumstances and modified in the future as changes in
circumstances occur.

* * * * * * *

The statutory scheme provided by the General
Assembly does not contemplate automatic changes or escalator
clauses.

Keyser, 2 Va. App. at 461-62, 345 S.E.2d
at 13-14; see also Solomond, 22 Va. App. at 392-93,
470 S.E.2d at 160 ("A trial court may not abrogate its
responsibility to determine that a material change of
circumstance justifies a modification of child support by
entering an order that results in an automatic increase in the
support obligation upon the occurrence of future events.").

Finally, father’s argument that the trial
court’s award of arrearages constituted an improper enforcement
of support for an emancipated child misapprehends the central
issue presented here: a reduction in support based on the
emancipation of a child in cases where an undivided support award
has been made for several children, some of whom remain minors, must
be consistent with the best interests of the remaining minor
children
. The latter determination lies solely within the
jurisdiction of the court, and numerous factors, including but
not limited to the presumptive guideline amount, are to be
considered by the court in making that determination. See
Code ?? 20-108.1, 20-108.2; Keyser, 2 Va. App. at
461, 345 S.E.2d at 13. Whether the reduction in support for the
remaining minor child, made unilaterally by the father in this
case, was consistent with the best interests of the child has
never been addressed by a court of law.

In short, neither the parties’ agreement nor
the decree incorporating it, purporting to establish a mechanism
for one or both parties to modify child support without prior
court approval, provides a legal underpinning for the father’s
contention on appeal that the trial court erred in finding him in
contempt of its prior order governing his support obligation. The
father failed to seek relief from the court in modifying the
child support award set forth in the final decree of divorce and
improperly reduced his support payments to the mother.
[5] Accordingly, we find
that the court did not err in finding him in contempt and, with
the exception discussed below, we affirm the court’s award of
arrearages.

II.

Reimbursement of Child-Care
Costs

When determining the amount of child support to
award, the trial court is authorized to consider child-care
expenses and include in the support award an appropriate amount
reflecting those costs. See Code ?? 20-108.1(B)(8),
20-108.2(F), 20-108.2(G)(3)(b). By virtue of the statutory scheme
adopted by the legislature, conceptually and, in fact, child-care
payments are a form of child support. In this case, the court
ordered the father to pay $2,177 per month in child support. The
award included the costs for child-care as determined at the time
of the hearing. Notwithstanding the court’s decree by which
child-care costs were ordered payable as part of the child
support award, the parties’ agreement as incorporated into the
decree also provided that upon notification by mother of any
change in the child-care expenses incurred, the father’s payment
of child-care costs would be increased or decreased accordingly.

Based on the reasoning and legal principles
discussed earlier governing the modification of support, we find
this provision of the agreement and decree to be inconsistent
with Virginia law and void as against public policy. See Goodpasture,
7 Va. App. at 58, 371 S.E.2d at 847; Solomond, 22 Va. App.
at 392-93, 470 S.E.2d at 160; Keyser, 2 Va. App. at
461-62, 345 S.E.2d at 12-14. When faced with a change in the
circumstances underlying the court’s award of child support, the
parties’ remedy is to petition the court for modification. Goodpasture,
7 Va. App. at 58, 371 S.E.2d at 847. The father failed to
petition and obtain an award modifying the prior child support
award in light of the reduction in child-care costs incurred by
the mother. Thus, no credit for overpayment of support was
warranted, and none is permitted under Virginia law. The court,
therefore, erred in reducing the amount of arrearages owed by the
father in consideration of the reduced child-care expenses
incurred by the mother. Granting the credit constituted an
improper retroactive modification of support. See Code
? 20-108; Goodpasture, 7 Va. App. at 58, 371 S.E.2d
at 847; Cofer, 205 Va. at 838, 140 S.E.2d at 666
("[P]ayments exacted by the original decree of divorce
become vested as they accrue and the court is without authority
to make any change as to past due installments."). We,
therefore, reverse the trial court’s ruling which gave father a
credit for payments he made for child-care costs and enter
judgment for the total amount of arrearages due.

III.

Attorney’s Fees

Finally, the parties’ agreement provided that
the losing party in an enforcement action shall bear the other
party’s attorney’s fees, and the trial court, in its discretion,
determined a reasonable award. Because we find that the trial
court did not abuse its discretion, we affirm the trial court’s
award of attorney’s fees to mother. Graves v. Graves, 4
Va. App. 326, 333, 357 S.E.2d 554, 558 (1987).

Affirmed in part,

reversed in part.

Benton, J., dissenting.

In pertinent part, Code ? 20-109.1
provides as follows:

Any court may affirm, ratify and incorporate by
reference in its decree dissolving a marriage . . . any valid
agreement between the parties, or provisions thereof, concerning
. . . the care, custody and maintenance of their minor children,
or establishing or imposing any other condition or consideration,
monetary or nonmonetary. Where the court affirms, ratifies and
incorporates by reference in its decree such agreement or
provision thereof, it shall be deemed for all purposes to be a
term of the decree, and enforceable in the same manner as any
provision of such decree.

Applying this statute, we have held that
"[i]ncorporation of the [child support] agreement . . . into
the decree rendered the terms of the agreement so incorporated
enforceable as a decree of the court." Fry v. Schwarting,
4 Va. App. 173, 179, 355 S.E.2d 342, 345 (1987). We have also
held that the statute "does not mandate the court to
incorporate the agreement in whole" but "expressly
permit[s] [the court] to incorporate selected provisions of the
agreement." Rodriguez v. Rodriguez, 1 Va. App. 87,
90, 334 S.E.2d 595, 597 (1985). Moreover, pursuant to Code
? 20-108, the divorce court retains its long recognized
"continuing jurisdiction after a final decree of divorce has
been entered, to modify its decree with respect to the . . .
maintenance of minor children." Edwards v. Lowry, 232
Va. 110, 112, 348 S.E.2d 259, 261 (1986). This power to modify
child support is not affected by the prior act of affirming,
ratifying and incorporating into the divorce decree the parties’
child support agreement, or provisions of it. Id.

By its express terms, part 5(d) of the parties’
agreement in this case obligates the husband to pay the undivided
child support "until each child dies, marries,"
or becomes ineligible through one of the cessation of support
events specified in the agreement. (Emphasis added). The divorce
decree "affirmed, ratified, and incorporated" the
parties’ agreement and specifically ordered the husband to pay
support in accordance with the agreement. The final decree
specifically modified part 5(d), however. In particular, after
decreeing that the parties’ agreement is "affirmed,
ratified, and incorporated, but not merged, into this decree, in
accordance with the provisions of . . . Code
? 20-109.1," the final decree provides as follows:

(f) Child Support. [The husband] is
ordered to pay [the wife] child support in accordance with all
the terms, provisions and requirements of their June 27, 1994
Custody, Support and Property Settlement Agreement; and beginning
on July 1, 1994, and on the first of every month thereafter, [the
husband] shall pay the amount of $2,177.00 per month, as and for
child support, to [the wife]. Child support shall continue until
a minor child
dies, marries, becomes emancipated, or reaches
the age of eighteen years, whichever occurs first, or until
further order of the court; provided, however, that if, at the
date of his or her eighteenth birthday, a child: (i) is a
full-time high school student, (ii) is not self-supporting, and
(iii) is living in the home of the parent seeking or receiving
child support, child support shall continue without abatement
until the child reaches the age of nineteen years or graduates
from high school, whichever first occurs.

(Emphasis added).

Thus, the decree incorporated the terms of the
parties’ agreement regarding child support, but changed the
language of part 5(d) providing for the event that triggers
modification of child support. Instead of requiring the husband
to pay the full undivided child support until the last child
became ineligible through one of the specified cessation of
support events, the final decree provided that the full,
undivided child support shall be paid "until a minor
child" became ineligible through one of the cessation of
specified events. (Emphasis added). Thus, the language of the
divorce decree modified the terms of the child support agreement
and clarified the nature of the father’s support obligation. This
modification is consistent with the parties’ agreement, which
contains no indication that the parties intended to provide
post-minority support for any child beyond the cessation events
specified in part 5(d) of their agreement. In addition, part 5(e)
of the agreement, which requires a modification of support upon a
change in circumstances, manifests that the parties intended the
result accomplished by the final decree’s modification. By
otherwise incorporating the parties’ agreement, the final decree
contemplated that the parties would abide by the agreement’s
"terms, provisions and requirements," except as
modified by the final decree.

Significantly, the parties’ agreement
established the initial amount of child support, which was
adopted in the final decree, as "the sum calculated for
child support as [is] required by Section 20-108.2 of the Code of
Virginia . . . , pursuant to the worksheet attached as Attachment
A to this agreement." The parties’ agreement required the
parties to continue using that statutory guide for determining
child support. In pertinent part, the agreement provides as
follows:

[5(e)] If there is any change in circumstances,
the parties shall follow the child support guidelines contained
in ? 20-108.2 of the Code of Virginia or its successor
statute and any other relevant Virginia statutes and case law for
determination of child support.

* * * * * * *

7. MODIFICATIONS IN CHILD SUPPORT PAYMENTS.

For so long as there is a support obligation
under this Agreement, the Husband hereby agrees to furnish the
Wife with a photocopy of his signed Federal income tax return and
W-2 form(s) (as well as any other reporting of income to other
governmental entities not recorded on the Federal income tax
return) for future years on or before April 15 of each year
commencing with April 15, 1995, so that she may be advised as to
the status of his income from year to year. The Wife hereby
agrees to furnish the Husband with a photocopy of her signed
Federal income tax return and W-2 form(s) (as well as any other
reporting of income to other governmental entities not recorded
on the Federal income tax return) for future years on or before
April 15 of each year commencing with April 15, 1995, so that he
may be advised as to the status of her income from year to year.

The evidence proved that the husband paid child
support in accordance with the agreement and as directed by the
final decree. The husband made the modification in the child
support payments contemporaneously with the changed
circumstances. The wife makes no claim that the amount of the
payments was not in accordance with the schedule in Code
? 20-108.2. Thus, no issue of retroactive modification
arises. The agreement and the final decree permitted the parties
to make these adjustments without returning to court for approval
before the change could be made.

In short, courts have the authority to order
child support for the minor children of the parties, see
Code ? 20-107.2, and for children over the age of eighteen
under limited circumstances, see Code ? 20-124.2(C).
The public policy of the Commonwealth clearly encourages parties
to seek "agreement . . . concerning the conditions
of . . . the care, custody and maintenance of their
minor children." Code ? 20-109.1. Indeed,
"[w]here the court affirms, ratifies and incorporates by
reference in its decree such agreement or provision thereof, it
shall be deemed for all purposes to be a term of the decree, and
enforceable in the same manner as any provision of such
decree." Code ? 20-109.1. The majority opinion fails
to give effect to these policies.

I believe the majority’s reliance on Kelley
v. Kelley
, 248 Va. 295, 449 S.E.2d 55 (1994); Keyser v.
Keyser
, 2 Va. App. 459, 345 S.E.2d 12 (1986); and Solomond
v. Ball
, 22 Va. App. 385, 470 S.E.2d 157 (1996), is
misplaced. In those cases, the Courts addressed only the support
of minor children whose rights a property settlement agreement
may not alter. Here, the lowering of child support payments
occurred only because of the emancipation of the children and was
consistent with the guidelines. If the parties had returned to
court on these occasions, the court would not have been able to
fix support for the emancipated children because the parties’
agreement prohibited such support.

To the extent that the annotation, S.R.
Shapiro, Propriety and Effect of Undivided Award for Support
of More than One Person
, 2 A.L.R.3d 596, ? 5 (1965
& Supp. 2000), bears on this issue, it cites cases for and
against the proposition that one party may reduce pro rata an
undivided "award" for support after a child becomes
ineligible to receive further support. It appears that the only
case cited in that annotation which addresses the effect of a
separation agreement on the child support obligation is Hershey
v. Hershey
, 292 S.E.2d 141 (N.C. App. 1982), which recognizes
that "’where parties to a separation agreement agree
concerning the support and maintenance of their minor children,
there is a presumption, in the absence of evidence to the
contrary, that the provisions mutually agreed upon are just and
reasonable, and the court is not warranted in ordering a change
in the absence of any evidence of a change in conditions.’" Id.
at 143 (citation omitted). The court ruled in Hershey that
the father could not reduce child support payments pro rata
because the agreement at issue there, unlike the agreement in
this case, did not allow such changes. Id.

Although, as the majority notes, "the
mother’s acquiescence in the reduction is irrelevant," the
evidence establishes she was at all times receiving precisely the
child support she was entitled to receive pursuant to Code
? 20-108.2 and consistent with the agreement. By waiting
until the oldest two children were emancipated before filing her
petition to hold the husband in contempt, the mother seeks to
have the proverbial cake and to eat it too. If she loses this
legal gambit, she has received what she was entitled to receive;
however, if she wins, she gets an undiluted windfall because the
husband’s opportunity to seek modification has passed. I believe
our decisions require that we hold her to the agreement that was
incorporated and ordered in effect by the decree.

In unambiguous language, Code ? 20-108.2
provides that "[t]here shall be a rebuttable presumption . .
. that the amount of the award which would result from the
application of the guidelines set forth in this section is the
correct amount of child support." I believe that our cases
do not bar the parties from agreeing to voluntarily modify their
child support payments annually according to Code
? 20-108.2, requesting a court to approve such an
agreement, and being able to make modifications to the support
payments according to their agreement when ordered to do so by
the decree, which affirms, ratifies and incorporates by reference
that agreement. Yet, it appears from the majority opinion that
members of the Bar should be placed on notice that despite good
faith efforts to resolve amicably the child support arrangements
by agreements that incorporate the schedules of Code
? 20-108.2, the parties have no safe harbor and can only
protect themselves by filing in court a petition to seek
modification for any change in circumstance that has been
recognized and specifically identified in their court-approved
agreement.

For these reasons, I dissent. I would reverse
the judgment, which finds the husband in contempt, and reverse
the finding of an arrearage and award of attorney fees.

FOOTNOTES:

[1] The incorporated agreement
provided, in relevant part:

5. SUPPORT AND MAINTENANCE OF
THE CHILDREN

a. The Husband
shall, . . . pay directly to
the Wife the monthly base support amount of Two
Thousand One Hundred and Seventy Seven Dollars
($2,177.00) per month, for the support and
maintenance of the children of the
parties . . . .  This
amount is the sum calculated for child support as
[is] required by Section 20-108.2 of the Code of
Virginia (1950, as amended), pursuant to the
worksheet attached as Attachment A to this
agreement. . . .

* * * * * * *

c. The parties agree that they
shall split, in the same proportion as their
annual gross incomes bear to their annual
combined gross incomes, as calculated in
Attachment A of this Agreement or as modified by
a court in the future, any child care costs
incurred on behalf of the children due to the
employment of the custodial parent. The Wife
shall notify the Husband of any change in the
amount of the child care costs. In the event that
child care costs rise in a month, the Husband
shall be responsible for reimbursing the Wife on
the first day of the next month for his
proportionate share of such increases. In the
event that child care costs decline in a month,
the Wife shall notify the Husband who shall
reduce his payment of child care costs on the
first day of the next month by his proportionate
share of such decline. Upon request by the
Husband, the Wife annually will provide the
Husband with a copy of canceled checks, tax
deposits and such other information as Wife may
maintain documenting the payment of child care
costs for the period for which said information
is requested.

d. The Husband shall make
consecutive monthly installments of the child
support on the first day of each month until each
child dies, marries, becomes self-supporting,
reaches the age of eighteen (18) years or
otherwise becomes emancipated, whichever event
first occurs, except that support shall continue
to be paid for a child if he or she is a
full-time high school student, not
self-supporting and living in the home of the
residential custodian, until he or she reaches
the age of nineteen (19) years or graduates from
high school, whichever first occurs.

e. If there is any change in
circumstances, the parties shall follow the child
support guidelines contained in ? 20-108.2
of the Code of Virginia or its successor statute
and any other relevant Virginia statutes and case
law for determination of child support.

[2] As noted in the A.L.R. article,
only one state of the nineteen that have addressed this issue has
allowed an automatic or agreed modification of support, upon the
emancipation of the oldest child, absent court approval at the
time the modification is made.

[3] In Eaton, the Supreme
Court held that an order for the payment of support to the
parties’ sole minor child "ceased to be effective at
majority without a judicial act." Id. at 828, 213
S.E.2d at 792. The court’s caveat to the holding is of
greater consequence to the issue in this case, however. The Court
noted, "[t]his suit does not involve a lump sum award for
several children of different
ages . . . .  In such cases, a
judicial proceeding at majority may be necessary to establish the
extent of the parent’s liability." Id. at 828 n.3,
213 S.E.2d at 792 n.3; see also 2 A.L.R.3d 596, ? 5.
Eaton is thus limited to cases in which a sole minor child
becomes emancipated.

[4] This case is distinguishable from
those in which the parties, by agreement, establish an obligation
to provide support beyond the child’s age of majority. In those
cases, the court has the authority to enforce the agreement. See,
e.g.
, Fry, 4 Va. App. at 180, 355 S.E.2d at 345-46
(where parties contract to extend child support obligation beyond
majority and agreement is incorporated into decree, court retains
jurisdiction to enforce agreement); Hershey v. Hershey,
292 S.E.2d 141 (N.C. 1982) (court enforced parties’ agreement
which provided that father would provide support beyond the age
of majority).

[5] We note that the mother’s acquiescence in the reduction
is irrelevant. Goodpasture, 7 Va. App. at 58, 371 S.E.2d
at 847.

 

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