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Support clause not void, but end run possible

487722637_child custodyWhen a married couple negotiated a child support agreement, the mother tried to insure that she could count on $2,000 in monthly support for the couple’s three children until they were all out of the house.

Two years later, after the oldest child went to live with the father, he was stuck with that monthly payment. But that didn’t mean he couldn’t try to recoup some of that sum by asking the mother to pay him child support, a Fairfax Circuit Court told him.

When the trial court entered the final divorce order on April 30, 2012, it included the parents’ consent order as a contract between the parties.

Under the agreement, support could not be reduced as each child was emancipated at age 18, and could only be terminated when all three children die or are emancipated at age 18.

Support could not be reduced or terminated if one or more of the children went to live with the father, or if the mother remarried. The father could be ordered to pay more support, due to changed circumstances, but support could not be reduced for that reason.

The agreement stated the above-guidelines amount of child support had been “compromised and calculated to meet the needs” of the mother and was supported by “valuable consideration,” including the mother’s “waiver of valuable property rights” and spousal support, her “right to immediately collect Pendente Lite support arrearages” and her right to recover attorney’s fees.

That recitation of consideration may have sounded like extra insulation, but it was perhaps unnecessary. Consideration is not an issue, as marital agreements are enforceable without consideration, according to Fairfax Circuit Judge Dennis J. Smith, the latest judge to review the parties’ child support arrangement in Host v. Host (VLW 014-8-077).

Nevertheless, the father came back to court seeking a reduction in child support.

He first asked for a reduction when the oldest child came to live with him. On July 31, 2013, the trial court entered an agreed order stating the father would have primary physical custody of the oldest child, but support payments would stay at the same level.

The father went back to court in June 2014, claiming the child support provisions were void because they limited the court’s continuing jurisdiction to modify child support.

Citing Kelley v. Kelley, 248 Va. 295 (2004), the father argued a court could not be prohibited from ordering child support from a parent capable of paying support. As long as that child lived with him, the child was not receiving the benefit of support the father paid to the mother, he argued.

Smith rejected the father’s motion, but said nothing in the agreement prevented the father from seeking a support award from the mother, for the child living with him.

Virginia law is clear that to override fit parents’ decisions a court must find actual harm to the child’s health or welfare, Smith said.

“In the context of agreements regarding child support, however, the appellate opinions seem to require only that the agreement be contrary to the best interests of the child for the court to have the authority to disregard its provisions,” Smith said.

Smith said the “stricter standard” of Williams v. Williams, 256 Va. 19 (1998), should apply to “ensure compliance with constitutional concerns, meaning that this court will enforce the agreement’s provisions regarding child support unless their enforcement will harm the child.”

He said he would reach the same result under a “best interests” standard.

Smith said the Kelley case was different from the Hosts’ situation, because the Hosts’ agreement benefitted the children, as the father agreed to pay an above-guidelines amount, for a longer period than he legally had to pay.

However, the parties in this case did not contract away their children’s right to receive support, and their consent orders contained no language attempting to stop a court from exercising its jurisdiction over child support matters, the court said.

VLW 014-8-077

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