Quantcast
Home / Opinion Digests / Family Law / No errors in modified child support obligation

No errors in modified child support obligation

Appellant’s 18 assignments of error in this appeal arising from the modification of a child support obligation are denied, as are two cross-assignments of error from the appellee.

After considering the equities of this case, appellee is awarded $12,663 in appellate attorney’s fees, which “is a judgment immediately due and payable and is in addition to those determined by the trial court and affirmed in this appeal.”

Lengthy litigation

Barrett and Minor were divorced in 2002. The divorce order fixed Barrett’s prospective child support and transferred child support matter to the Grayson JDR court. The Grayson Circuit Court entered a final support order in 2007, which imputed $5,100 per month income to Barrett and used Minor’s actual monthly income of $255. Barrett’s arrearages were reduced for various periods dating back to Sept. 1, 2002. The 2007 order reflected income changes and a change in the number of children that the order covered. The Court of Appeals affirmed in Barrett I.

In 2008, Barrett sought to modify the order. The Grayson Circuit Court entered a final order in June 2010. The 2010 order fixed a new prospective support obligation and reduced Barrett’s arrearages dating back to May 1, 2008. Barrett appealed, raising 27 issues. Most were rejected but the 2010 order was ultimately reversed in Barrett II and remanded to the circuit court for additional fact-finding and a recalculated support award. Barrett II mandated that the circuit court could set a retroactive modification date “no earlier” than Jan. 28, 2009. Minor was awarded attorney’s fees that would be determined on remand.

Minor sough enforcement of the 2010 order in Grayson JDR court while Barrett II was pending on appeal. Barrett was found in contempt and in arrears by $22,399 as of Sept. 30, 2010. Barrett appealed to the circuit court but withdrew the appeal “and satisfied the contempt judgment with the appeal bond and a deficiency payment.”

On remand, the Grayson Circuit Court transferred the case, and the $10,715 remaining on the appeal bond for Barrett II, to the Bristol Circuit Court. That court dismissed the case. In Barrett III, the Bristol court was affirmed and the Grayson Circuit Court was notified that it still had to follow the remand instructions in Barrett II.

On Nov. 29, 2018, the Grayson court conducted remand proceedings. In response to a pretrial motion, the Grayson Court ruled that Sept. 30, 2010, was the effective date of the modified 2007 support order in accordance with Barrett II’s mandate of a retroactive date no earlier than Jan. 29, 2009. The Grayson court chose Sept. 30, 2010 because the contempt order established Barrett’s arrearage as of the date.

On Dec. 28, 2018, the Grayson court entered a support order. Minor’s 2018 income was fixed at $3,333 per month and with her consent, that figure was used as her income going back to Oct. 1, 2010, even though this produced a more favorable result for Barrett than if her income was averaged for the same period.

The court determined that Barrett was voluntarily unemployed and imputed income of $5,100 per month, the same as in the 2007 and 2010 orders. His prospective support obligation was determined to be $587 per month. Support arrearages were adjusted due to Minor’s higher income and with regard to when each reached the age of majority.

In determining the exact amount, the Grayson court relied on the $22,399 arrearage set on Oct. 1, 2010, then referred to DSS-DCSE records to determine Barrett paid $34,765 since that time. The court then used the previous calculations for each child and concluded Barrett’s arrearage was $77,046 plus interest.

Rulings

Barrett claims the Grayson Circuit Court failed to follow the mandate of Barrett II. “Our ruling in Barrett II simply stated that upon remand, the Grayson circuit court must address all issues relevant to the determination of child support pursuant to Code § 20-108.

“Additionally, upon remand, the Grayson circuit court should determine an effective date of modification given the parameters of Barrett II. Finally, we awarded Minor her attorney’s fees incurred in the appeal of Barrett II. … We defer to the trial court’s discretion in selecting the date of retroactivity and find that the Grayson circuit court did not refuse to comply with our mandate upon remand.”

Age of majority

Barrett complains that the trial court awarded support payments to five of the parties’ six children who had already reached the age of majority by 2018. But the court’s order took this into consideration. “Barrett attempts to shoehorn a frivolous legal argument, and misreading of cases and statutes, for the contention that any payment after the date of a child reaching the age of majority is unconstitutional. …

“Taking Barrett’s argument to its logical conclusion would allow a parent to continue litigation over child support, without making any child support payments, until the child reaches the age of majority thereby absolving parents of their statutory responsibility to pay child support. We decline to further Barrett’s absurd argument.”

Barrett argues that one of the children reached the age of majority six months before Sept. 30, 2010 and the order “effectively” awarded support for this child. But the contempt order “contemplated Barrett’s arrearages to include the time before [this child] had reached the age of majority.”

Barrett asserts the circuit court erred by relying on the JDR court’s contempt order that determined his arrearage as of Sept. 30, 2010. He argues the JDR court lacked jurisdiction to enforce a support order while Barrett II was pending. “We disagree. We have ruled repeatedly that the authority to enforce a support order continues despite the order being appealed.”

Income

Barrett assigns several errors to the circuit court’s determination of Minor’s income. “Minor stipulated, and Barrett agreed, that she receives approximately $1200 per year in gifts from family members. This amount was added to Minor’s 2018 salary. Additionally, at Minor’s request, the Grayson circuit court applied Minor’s adjusted 2018 salary to each year in the period of retroactivity, even though this income figure was the highest it had ever been as stipulated by the parties.

“This decision by the Grayson circuit court resulted in a reduction of Barrett’s retroactive obligation by more than $60,000. Any such error was in favor of Barrett. …

“Barrett assigns multiple errors to the Grayson circuit court’s imputation of income to him. Barrett had the burden to prove that the same level of income imputed to him in the 2007 order should not be used again in the modification of that order. … [W]e cannot say that the decision of the Grayson circuit court to find Barrett voluntarily unemployed and subsequently impute income at $5100 per month is plainly wrong or without evidence in the record.”

Barrett’s arguments that the circuit court erred in calculating the amount of his arrearage are based on his previously rejected argument that support is being awarded for children who are past the age of majority.

The record supports the circuit court’s award to Minor of income tax deductions for the children. Barrett argues he never signed any income tax deduction waivers. “Code § 20-108.1(E) authorizes a trial court to order a party to execute tax forms or waivers. Minor was the custodial parent and did not need Barrett to execute any waivers. Additionally, Minor has previously claimed the children on her taxes because Barrett was not paying income tax.”

Other claims

Barrett’s claim that the circuit court did not include information about health care provisions for the children was untimely raised.

Barrett challenges the $4,175 attorney’s fee awarded after remand of Barrett II. But Minor submitted documentary evidence to support her request and Barrett did not challenge this evidence.

“Barrett argues that making him pay his child support obligation violates the Virginia Constitution. Additionally, Barrett alleges that if the child support statute does not violate the Virginia Constitution, a trial court awarding support to a child that has reached the age of majority, but not yet graduated high school, violates the Thirteenth Amendment to the United States Constitution. Finding Barrett’s contentions without merit and wholly frivolous, we disagree.”

Cross-assignments

Turning to Minor’s cross-assignments of error, she argues that the Grayson Circuit Court lacked jurisdiction to enter the December 2018 order. However, this “action was never dismissed other than by the Bristol circuit court who, as we ruled in Barrett III, correctly determined that it did not have jurisdiction to hear this action. Our mandate in Barrett II required the Grayson circuit court to correct the error regarding the effective date of retroactivity as we stated.

“Thus, the Grayson circuit court retained jurisdiction over this matter and the case remained on the Grayson circuit court docket. The Grayson circuit court could not dismiss this action … because that would be in violation of the mandate of this Court in Barrett II.”

Attorney’s fee

“[I]t is clear that Minor is entitled to an award of attorney’s fees. The equities of the case demand it. Over more than a decade, Barrett repeatedly has harassed Minor with multiple, frivolous appeals, which often repeat the same meritless arguments.

When last we made an award of appellate attorney’s fees to Minor for having to respond to Barrett’s frivolous claims, we observed that Barrett’s appeals largely follow the same pattern: he ‘misapplies the law and selectively interprets facts, claiming violations of both the state and federal constitutions where none actually exists.’ …

The present appeal mirrors that pattern, and thus, an attorney’s fee award is warranted. … Accordingly, we award Minor $12,663 in appellate attorney’s fees[.] … Such an award of attorney’s fees is a judgment immediately due and payable and is in addition to those determined by the trial court and affirmed in this appeal.”

Affirmed.

Barrett v. Commonwealth of Virginia, Dep’t of Social Services, Division of Child Support Enforcement ex rel. Minor, Record No. 0074-19-3, Feb. 11, 2020. CAV (Athey) from Grayson Cir. Ct. (Harrell). Timothy M. Barrett, pro se, Steven R. Minor for appellee Minor, no brief for appellee Commonwealth of Virginia, Dep’t of Social Services, Division of Child Support Enforcement ex rel. Minor. VLW 020-7-027, 11 pp. Unpublished.

VLW 020-7-027

Virginia Lawyers Weekly