Domestic Relations – Unitary Child Support Award – Support ‘Continuation’ – Disabled Child

A mother who waited over six weeks after the high-school graduation of the youngest of three children covered by an undivided child support award did not forfeit her right to seek a continuation of support under Va. Code § 20-124.2(C) for the middle son who is disabled and continues to live with her, and a Fairfax Circuit Court overrules the father’s plea in bar.

Where an undivided child support award has been made for multiple minor children, a child support order remains in effect as to every child covered by that award until the youngest child reaches the age of majority or is otherwise emancipated, or either parent asks the court to modify the child support award to reflect that a particular child has reached the age of majority. A court has jurisdiction to order continuation of support for any child over age 18 who is severely and permanently mentally or physically disabled, unable to live independently, and is living in the home of a payee parent.

Father relies on the decisions of Smith v. Smith, 74 Va. Cir. 378 (2007) and a Texas case, Red v. Red, in support of his argument that “continuation” should be limited to an uninterrupted time period. The court finds the father’s reliance misplaced.

First, Smith is distinguishable on its facts because in that case, this court refused to find a “continuation” of child support when six months and six days had passed between the termination of the juvenile court’s support order and the date that the wife first filed a pleading requesting child support in the circuit court in a totally separate case. Here, in contrast, only one month and 18 days passed between the date that the child support obligation terminated and the date that wife filed the instant motion in the same circuit court proceeding. As the CSO required monthly child support payments, this period actually encompassed only one missed payment.

Further, Red is distinguishable due to the jurisdictional differences between the Virginia and Texas statutes. The Virginia statute provides that the court may order the continuation of child support for any child over the age of 18, contemplating that a court could potentially enter an order subsequent to the child’s 18th birthday.

Also, the concern in Red that a parent could face a renewed obligation to pay child support for a child well over the age of majority would be unfounded in Virginia, as the term “continuation” in Va. Code § 20-124.2(C) only encompasses a brief period of interruption. A court orders the “continuation” of child support within the meaning of Code § 20-124.2(C) when the court modifies the existing child support order either before or shortly after the support order otherwise terminates.

In this case, father paid child support pursuant to the CSO, which provided for an undivided child support award for multiple minor children. His child support obligation did not automatically terminate upon son Daniel’s 19th birthday, as daughter Kayla was still a minor child covered by the CSO, and did not otherwise terminate before Kayla’s high school graduation, as the father did not seek a support modification before her graduation. Thus, the father’s support obligation to Daniel under the CSO could not have terminated before June 12, 2009, when Kayla, the youngest child covered by the CSO, graduated from high school. On July 30, 2009, only one month and 18 days after this date, wife filed her motion to modify support, properly requesting continuation of child support pursuant to Va. Code § 20-124.2(C). Thus, this court retained jurisdiction pursuant to that statute to order and modify support for Daniel.

The father’s plea in bar is overruled.

Zellmann v. Zellmann (Klein, J.) No. CL 2009-11202, Dec. 14, 2009; Fairfax Cir.Ct.; Hans P. Riede, Paula W. Rank for the parties. VLW 010-8-016, 8 pp.