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Husband entitled to credit for support overpayments

Where the J&DR court reduced husband’s spousal support obligation but did not reference any overages or set a repayment schedule until after a hearing conducted several months later, the circuit court correctly ruled that husband’s motion for overage payments “was not precluded by Rule 1:1, res judicata, or Code § 20-107.1.”

Support modification

The parties’ separation agreement required husband to pay wife spousal support. Seven years later, husband moved the J&DR court to modify his support obligation due to changed circumstances. The court ordered reduced payments beginning in April 2018 through July 2019. Because the reduction was retroactive, husband had overpaid for that period. The J&DR court’s July 17, 2019, order did not reference any overage.

On Nov. 4, 2019, husband moved for a repayment schedule for the overage. The J&DR court granted the motion, found that husband had overpaid by $28,000 and ordered wife to repay at $500 per month.

Wife appealed to the circuit court. She “argued that husband’s motion for overage payments was barred by Rule 1:1 of the Rules of the Supreme Court of Virginia, the doctrine of res judicata, and the statutory language of Code § 20-107.1. …

“[T]he circuit court held that husband’s motion was not precluded by Rule 1:1, res judicata, or Code § 20-107.1. The circuit court found that the amount of support overpayments was $15,250 as of November 9, 2020, and that husband was permitted to deduct $500 from his monthly spousal support obligation until it was paid in full. Wife now appeals[.]”

Rule 1:1

“Wife argues that Rule 1:1 of the Rules of the Supreme Court of Virginia is a bar to husband’s motion for overage payments because the support order was entered on July 17, 2019, and husband did not file his motion until November 4, 2019. Rule 1:1 states that ‘[a]ll final judgments, orders, and decrees … may be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.’

“Here, husband did not file his motion for overage payments until well after twenty-one days had passed from entry of the support order. However, Rule 1:1 does not bar husband’s motion because the support order clearly did not dispose of ‘the entire matter’ regarding overages. …

“Although the support order implied that overpayments existed because the lowered support obligation was retroactive, the order did not explicitly state as such, nor did it address repayment. …

“Thus, the support order of the J&DR court not only did not dispose of the issue of support overpayments, it actually created that issue and then left it unresolved. The support order could have disposed of the overage issue, but as it did not, the issue was still pending and unresolved by the support order. Accordingly, the J&DR court retained jurisdiction regarding the issue of overpayments.

“For these reasons, we find that the circuit court did not err by holding that husband’s motion was not barred by Rule 1:1.”

Res Judicata

“Wife also argues that the doctrine of res judicata barred the J&DR court from hearing husband’s motion for overage payments because it ‘arose out of the same conduct, transaction or occurrence’ as his previous motion to amend spousal support. … The doctrine can be … divided into two preclusion categories, claim preclusion and issue preclusion. … Wife argues that husband’s motion was barred by claim preclusion. …

“[H]usband’s first claim, which led to entry of the support order, was that he had experienced a material change in circumstances and a modification in his spousal support obligation was warranted. His claim in the motion for overage payments was that the retroactive support order implicitly created overages but it neither established an amount nor a schedule for repayment.

“Hence, husband requested that the J&DR court enter an order mandating repayment by wife. Husband was not barred by res judicata because the grounds for his latter claim were first created by the support order.

“Prior to the J&DR court’s determination that a material change of circumstances had occurred and its subsequent order reducing husband’s spousal support obligation, husband had no claim for repayment from wife. His claim for overages only arose out of the support order that made his reduced payments retroactive; therefore, his claim could not be precluded under the doctrine of res judicata.”


“Wife also argues that husband’s motion was statutorily barred because Code § 20-107.1(H) states that any order directing the payment of spousal support must address support arrearages. …

“Wife asserts that the support order violated the statute because it did not reference or state any support overages, writing on brief, ‘[w]hile not specifically referenced within the statute, it is logical that any overages should be addressed in an order of support with similar specificity to that of arrears.’

“In essence, wife asks this Court to interpret the word ‘arrearages’ in Code § 20-107.1(H) to also mean ‘overages.’ The circuit court expressly rejected this argument at the hearing, stating, ‘I cannot read into the statute what you’re asking me to read into it, in essence, that the General Assembly meant “arrears or overages.” That’s adding two words that don’t exist.’ …

“[H]usband’s payments were retroactively modified as permitted by Code § 20-112. There is no evidence that husband failed to meet the requirements of Code § 20-112[.] …

“Here, the circuit court correctly found that the plain language used by the General Assembly only requires that support orders address arrearages, not overages. The plain language of the statute establishes that the General Assembly clearly intended for Code § 20-112 to apply to cases precisely like the one before us today wherein proceedings were initiated to decrease spousal support.

“Where a decrease in spousal support is warranted, the statute clearly allows a retroactive adjustment to support. The language of Code § 20-112 directly contradicts wife’s argument that the circuit court’s finding was contrary to legislative intent.”


Shell v. Davis, Record No. 1385-20-1, June 29, 2021. CAV (Humphreys) from Virginia Beach Cir. Ct. (Mahan). Allison W. Anders for appellant, Charles Hatley for appellee. VLW 021-7-080, 9 pp. Unpublished.

VLW 021-7-080

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