CAV: After custody switch, new child support order replaced old

After he was granted sole legal and physical custody of his child, an order granting a father’s petition for child support effectively terminated a previous order setting forth the father’s child support obligations. The old order had been entered when the mother had custody.

Background

The parties have one child together. In 2006, the year the child was born, the juvenile and domestic relations district court granted Mother custody and ordered Father to pay $500 monthly in child support.

On May 25, 2010, the JDR court granted physical custody to Father. On appeal, the circuit court granted Father sole legal and physical custody, and this court affirmed. Following the 2010 custody transfer, Father received confirmation from the Department of Social Services that, based on the JDR court order and his zero balance, it was preparing to close his child-support account.

Father made no further payments and has maintained sole physical custody of the child since May 2010. He petitioned the JDR court for child support from Mother, which was granted on November 1, 2011.

In 2016, he sought an order to specifically abate his child support obligations. The JDR court responded by terminating the 2006 support order as of October 31, 2011. On appeal, the circuit court held that Mother was not entitled to support and, giving due consideration to in-kind payments and unjust enrichment, Father’s support obligation ceased on May 25, 2010. Mother has appealed.

Child support modification

Certain narrow exceptions apply to the general rule prohibiting retroactive modification of child-support orders. Under Acree v. Acree, 2 Va. App. 151 (1986), the general inflexible rule denying support credit for non-conforming payments need not apply when the custodial parent voluntarily agrees to permanently relinquish custody, and such agreement has been fully performed. A court’s order transferring custody can substitute for the Acree requirement of full performance.

In contrast to Jones v. Davis, 43 Va. App. 9 (2004), the circuit court here granted Father sole physical custody of the child in May 2010; Father then petitioned to modify support. At the time, he had no support arrearage or ongoing obligation to make payments. As in Acree, a complete change in custody occurred here. Following the change, Father took action to modify the existing support order by petitioning for Mother to pay child support to him. The order granting Father’s petition effectively replaced the previous support order, and Father’s obligation terminated on that date.

Although this court affirms the circuit court’s decision to terminate Father’s child support obligation, the case will be remanded for entry of an order amending the termination date to November 1, 2011 – the date of the JDR order – and for calculation of the arrearages that Father owes Mother from his last payment until that date.

Affirmed in part; reversed in part and remanded.

Wilson v. Britton, Record No. 2081-17-1, Aug. 21, 2018. CAV (O’Brien), from Norfolk Cir. Ct. (Poston). Tamena G. Wilson, pro se; Jennifer E. Peterson for Appellee. VLW No. 018-7-217, 7 pp.