A Rehearing En Banc was granted in this case on October 11, 1996.
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia
SHARLENE B. ORLANDI
v. Record No. 2893-95-2 JUDGE JOHANNA L. FITZPATRICK
AUGUST 6, 1996
ANTHONY P. ORLANDI
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
Halford I. Hayes (Lucretia A. Carrico; Hayes
& Carrico, P.C., on brief), for appellant.
John M. Schilling (White, Blackburn & Conte,
P.C., on brief), for appellee.
Sharlene B. Orlandi (mother) appeals the trial court’s
decision to award child support to Anthony P. Orlandi (father).
She argues that the trial court erred in finding that: (1)
father was not required to show a material change in
circumstances, and (2) if father was required to show a material
change, he met his burden. For the reasons that follow, we
affirm the trial court’s decision.
The parties share joint legal custody of their two children,
with father as the primary care-giver. On December 8, 1994, the
parties appeared before the trial court on a support appeal from
the juvenile and domestic relations district court and submitted
a draft consent decree resolving the disputed support issue. In
the consent decree entered by the trial court on December 15,
1994, the parties agreed that “neither party will pay to the
other any child support” and that they would “split equally all
un-reimbursed medical bills.” The consent decree referred “all
future matters pertaining to child support” to the Hanover County
Juvenile and Domestic Relations District Court.
Father later filed a petition seeking a modification in
child support, and a hearing was held on October 20, 1995. The
evidence established that, at the time of the entry of the
consent decree, mother was unmarried, agreed to help with some of
the children’s expenses, and visited the children on a regular
basis. After the entry of the consent decree on December 15,
1994, mother remarried. She spent less time with the children
and did not give father money to help with expenses as
anticipated. Mother’s new husband was self-employed, lived with
her in her home, and put money in their joint checking account.
Although mother testified that she continued to pay her expenses
as before her marriage, she admitted that: “[B]ecause I have had
a lot of bills coming in lately for different things, he [has
helped] me pay that.” She also testified that her new husband
“maintains whatever he did before, and I guess whatever he makes
over and above goes into savings for us both.”
In a November 29, 1995 order, the trial court found as
[Father] need not show a material change of
circumstances since the current Order of
support was submitted by the consent of the
parties, and the legislative guidelines were
not used, and further that the father does
not have the right to waive the children’s
right of child support. The Court further
finds a material change of circumstances
exists since the entry of the aforesaid
Consent Order namely, [mother] has remarried
and has used her current spouse’s income to
help pay her expenses, that the parties
agreed at the time of the Consent Order that
[mother] would help support the children
which she has wholly refused to do since the
entry of the Order, and that [mother] has not
visited the children in accordance with the
. . . visitation schedule.
(Emphasis added). The court then determined the presumptive
amount of child support under the guidelines in Code ? 20-108.2
to be $453.83 per month and ordered mother to pay father this
amount in child support.
Mother contends that the trial court erred in finding that
father was not required to show a material change in
circumstances because the underlying child support order was the
result of a consent settlement by the parties rather than a court
adjudication. We agree that the trial court erred in its initial
determination that father was not required to prove a material
change in circumstances in order to justify a modification of
child support. No legitimate rationale supports using separate
standards for the modification of child support contained in a
court-approved consent settlement and child support ordered by
the court in accordance with the guidelines in Code ? 20-108.2.
Code ? 20-109.1 provides, in pertinent part, as follows:
Any court may affirm, ratify and
incorporate by reference in its decree
dissolving a marriage or decree of divorce
whether from the bond of matrimony or from
bed and board, or by a separate decree prior
to or subsequent to such decree, any valid
agreement between the parties, or provisions
thereof, concerning the conditions of the
maintenance of the parties, or either of them
and the care, custody and maintenance of
their minor children, or establishing or
imposing any other condition or
consideration, monetary or nonmonetary.
Where the court affirms, ratifies and
incorporates by reference in its decree such
agreement or provision thereof, it shall be
deemed for all purposes to be a term of the
decree, and enforceable in the same manner as
any provision of such decree.
(Emphasis added). Pursuant to Code ? 20-109.1, the court “‘may
accept a child support agreement [between the parties], in whole
or in part, or it may completely reject the agreement and
exercise its statutory right to determine support.'” Watkinson
v. Henley, 13 Va. App. 151, 157, 409 S.E.2d 470, 473 (1991)
(quoting Fry v. Schwarting, 4 Va. App. 173, 178, 355 S.E.2d 342,
“Once a child support award has been entered, only a showing
of a material change in circumstances will justify modification
of the support award. The moving party has the burden of proving
a material change by a preponderance of the evidence.” Crabtree
1We recognize that, when ordering child support by entering
a consent decree or by approving the child support provisions of
a property settlement agreement, a trial court is required to
consider the agreed amount and determine whether that amount
serves the best interests of the child. See Watkinson, 13 Va.
App. at 158, 409 S.E.2d at 474. In the instant case, the record
fails to show that the trial court considered the statutory
guidelines before entering the parties’ original consent decree.
However, neither party appealed the underlying 1994 consent
order, and its validity is not now an issue.
v. Crabtree, 17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993)
(emphasis added). “Code ? 20-108 gives the divorce court
continuing jurisdiction to change or modify its decree concerning
the custody and maintenance of minor children, and a contract
between husband and wife cannot prevent the court from exercising
this power.” Featherstone v. Brooks, 220 Va. 443, 446, 258
S.E.2d 513, 515 (1979). In cases involving a consent decree
agreeing to child support or a property settlement agreement
providing for child support, the court’s continuing authority to
modify child support may be exercised only upon a showing of a
material change in circumstances. See id. at 444-47, 258 S.E.2d
at 513-16 (holding that court had authority to modify a divorce
decree incorporating a property settlement agreement and to order
mother to pay child support when father showed a material change
in circumstances); Watkinson, 13 Va. App. at 156-61, 409 S.E.2d
at 472-75 (holding that court had authority to reduce father’s
child support obligation contained in the parties’ consent decree
if he proved a material change in circumstances). Additionally,
“‘[a] consent decree is a contract or agreement between the
parties to the suit, entered of record in the cause with the
consent of the court, and is binding unless secured by fraud or
mistake.'” Durrett v. Durrett, 204 Va. 59, 63, 129 S.E.2d 50, 53
(1963) (emphasis added) (quoting Barnes v. American Fertilizer
Co., 144 Va. 692, 720, 130 S.E. 902, 911 (1925)).
Although neither the Supreme Court of Virginia in
Featherstone nor this Court in Watkinson explicitly held that the
material change of circumstances test for modification of child
support should be utilized when an award is based on a consent
decree or a property settlement agreement, both courts implicitly
adopted this standard.2 Thus, we agree with mother’s contention
that the trial court erred in its initial ruling that father was
not required to prove a material change in circumstances because
“the current Order of support was submitted by the consent of the
parties.” However, because the evidence supports the trial
court’s alternative finding that a material change was proven,
this error was harmless.3
2Other jurisdictions have also held that a parent seeking
modification of a child support award contained in a consent
decree must show a change in circumstances. See, e.g., Dull v.
Dull, 392 N.E.2d 421, 423 (Ill. App. Ct. 1979) (“[P]rovisions
relating to child support payments, including those embodied in a
consent decree, are always subject to modification by a court
upon changed circumstances and to promote the best interests of
the child.”); McDaniel v. McDaniel, 670 So. 2d 767, 769 (La. Ct.
App. 1996) (“[A] party seeking a modification of a child support
award, including a consent decree, must establish a substantial
change in the circumstances of one of the parties.”).
3Father argues that the consent decree was void and that he
was not required to show a material change in circumstances
because “parents cannot contract away their children’s rights to
support nor can a court be precluded by agreement from exercising
its power to decree child support.” Kelley v. Kelley, 248 Va.
295, 298, 449 S.E.2d 55, 56 (1994). The agreement at issue in
Kelley provided that the husband would never be responsible for
child support and that the wife would never petition a court to
receive child support. Id. The Supreme Court determined that
the agreement as to child support was void and subject to
collateral attack because “the children’s rights to receive
support from both parents were substantially abridged, and the
court’s power to decree support was diminished.” Id. at 298, 449
S.E.2d at 56.
However, this case is distinguishable from Kelley. Unlike
MATERIAL CHANGE IN CIRCUMSTANCES
The trial court found that, if father was required to prove
a material change in circumstances, he met the threshold burden
to get the issue before the court. The evidence established
that: (1) mother had remarried; (2) her new husband provided
some additional financial benefit to her and paid some of her
expenses; and (3) mother had refused to help with the children’s
expenses after agreeing to do so at the time of the consent
decree.4 The court found a material change in circumstances,
correctly applied the child support guidelines of Code
? 20-108.2, and awarded father the presumptive amount of child
“The trial court’s decision, when based upon an ore tenus
hearing, is entitled to great weight and will not be disturbed
unless plainly wrong or without evidence to support it.” Venable
v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986).
“[I]n order to entertain a petition to increase, decrease, or
terminate child support, [a trial court must] . . . make a
the agreement in Kelley, the consent decree at issue in this case
did not limit the court’s continuing jurisdiction to modify child
support or forever waive the children’s right to support. Thus,
the consent decree was not void, was binding on the parties
unless set aside on appeal, and was subject to modification only
upon a showing of a material change in circumstances.
4The trial court also found that mother had not visited the
children in accordance with the visitation schedule and that the
children were one year older. While these additional changes
standing alone are not sufficient to prove a material change in
circumstances, they may be considered.
threshold finding that a material change of circumstance has
occurred since the last award or hearing to modify support.”
Hiner v. Hadeed, 15 Va. App. 575, 579, 425 S.E.2d 811, 814
(1993). “[W]hen a judge determines that a material change of
circumstance has occurred in the children’s needs or the parents’
abilities to provide for those needs and that a change in the
amount of support is required, the initial step to determine how
to modify the support award is to calculate the amount presumed
to be correct according to the guidelines.” Id. at 579, 425
S.E.2d at 813. Whether a parent is seeking a modification of
support ordered in a consent decree, agreed to in a property
settlement agreement incorporated by the court, or determined by
the court in accordance with the guidelines, the trial court must
first calculate the presumptive amount of support under the
guidelines in Code ? 20-108.2 and then determine whether
deviation from the presumptive amount is required. Watkinson, 13
Va. App. at 158, 409 S.E.2d at 473-74. In Scott v. Scott, 12 Va.
App. 1245, 408 S.E.2d 579 (1991), this Court held that, when the
parties have agreed to child support, the trial court
must determine the guideline amount and then
may compare this amount with the provisions
of the separation agreement. If the factors
described in Code ?? 20-107.2 and 20-108.1
justify an award based upon the provisions of
the separation agreement instead of the
statutorily presumptive amount, it may then
enter an award in the amount provided for in
the separation agreement . . . .
Id. at 1249, 408 S.E.2d at 582. Thus, the starting point is the
presumptive amount of child support under the guidelines, not the
agreed amount of child support under the consent decree.
In the instant case, mother orally agreed to help with the
children’s expenses, and her failure to do so was properly
considered by the trial court in meeting the threshold burden of
showing a material change in circumstances “in the children’s
needs or the parents’ abilities to provide for those needs.”
Hiner, 15 Va. App. at 579, 425 S.E.2d at 813. Additionally, the
remarriage of mother and the related economic impact of her
remarriage may be considered a “material” change in circumstances
justifying modification of the agreed amount of child support.
We do not hold that a new spouse is required to support the other
spouse’s children, but we recognize that remarriage may change a
parent’s ability to provide support for his or her children by
either increasing or decreasing that parent’s expenses and by
altering the utilization of the parent’s own funds. The evidence
established that mother remarried; that her new husband was
employed; that he paid some of mother’s bills; and that he made
deposits into their joint checking account. The trial court
determined that, if father was required to show a material change
in circumstances, he met his burden because of mother’s
remarriage and her new husband’s financial contributions to their
household. We cannot say that the trial judge abused his
discretion in finding mother’s remarriage and its economic impact
to be a material change in circumstances.
Accordingly, the decision of the trial court is affirmed.
Benton, J., dissenting.
I concur in the portions of the opinion styled BACKGROUND
and CONSENT DECREE. I do not agree, however, with the ruling
that the trial judge’s error was harmless or with the portion of
the opinion styled MATERIAL CHANGE IN CIRCUMSTANCES.
When the parties divorced, they agreed that their children
would live with the father and that the mother and father would
have “joint custody.” The children live with their father, whose
income is in excess of $100,000. No evidence proved the children
have financial need.
The father initiated this proceeding based upon his claim
that the mother refused to pay for an automobile for the daughter
and other bills. However, the consent decree does not require
the mother to pay for an automobile or other general expenses the
father incurs while the children are in his physical custody.
The consent decree specifically states that “neither party will
pay the other any child support” and “that each party shall split
equally all un-reimbursed medical bills.”
The father testified as follows concerning medical bills:
Q Are there any other bills?
A Doctor bills and dental bills.
Q Have you submitted them through counsel?
Q So you haven’t submitted or asked [the
mother] to pay those at this time?
A No, I have not asked her to pay them.
Clearly, the mother’s failure to pay for the daughter’s
automobile and the medical bills she had not received could not
give rise to a change in circumstances.
The undisputed evidence proved that the mother has attempted
to maintain visitation with her children. However, the
sixteen-year-old daughter refuses to visit the mother. The
mother continues to visit the son, but her visits are limited
because of the son’s and the father’s schedules. The evidence
clearly established that the children’s schedules and their
wishes have caused changes in the mother’s visitations. In any
event, as the majority recognizes, those issues do not justify a
change in the support provisions of the consent decree.
The consent decree resolved issues of custody, payments of
expenses for the children, and provided that “neither party will
pay to the other any child support.” Nothing in the consent
decree states that the agreement the parties reached was premised
upon the mother’s gross or net income or upon a consideration of
her economic circumstances. Moreover, the trial judge did not
make a finding of fact that the mother’s remarriage improved her
financial condition or her ability to pay child support. Indeed,
on this record the trial judge could not have made such a finding
because the only evidence of economic impact was as follows:
Q Now you are married; are you not?
A Yes. . . .
Q Well, [your husband] helps you to pay
some of the bills, doesn’t he?
A Yes, he does.
Q So your expenses are less now than they
were before you got married, correct?
Because he helps pay the bills?
A Well, actually it could be wrong in
somebody else’s eyes, but I maintain what I
usually did now, and he maintains what he had
from before. So I still pay the bills, but
he has income; yes, he does.
Q He helps you pay some bills from the
A Like I say. I still continue to pay
bills from before.
Q What bills does he pay?
A He has child support, he has to run his
business expenses through. I, as I say, we
don’t — I don’t know his income. We haven’t
been married that long. He maintains what he
did before, and I guess whatever he makes
over and above goes into savings for us both.
That’s all I know.
Q Do you have a joint checking account?
Q And he puts money into that joint
Q He doesn’t put money in the joint
A He has occasionally. No — well, he
gives me money for his child support, yes, he
does that. And he has his own checking
Q It’s your testimony he never gives you
money or puts it in that account?
A I did not say never. I say occasionally
he has given me money for child support, and
because I have had a lot of bills coming in
lately for different things, he helps me pay
that. . . . Basically I still pay the bills
with what I have, yes. And everything else
has stayed in his account.
This evidence did not prove a change in the mother’s financial
circumstances sufficient to justify a change in the consent
In reaching its decision, the majority also states that the
mother’s “failure [to help with the children’s expenses] was
properly considered by the trial court in meeting the threshold
burden of showing a material change in circumstances.” However,
the trial judge did not and could not make a finding that the
mother was obligated to pay expenses for the children that were
not ordered in the consent decree. “‘A consent decree is a
contract or agreement between the parties to the suit, entered of
record in the cause with the consent of the Court, and is binding
unless secured by fraud or mistake.'” Durrett v. Durrett, 204
Va. 59, 63, 129 S.E.2d 50, 53 (1963)(citation omitted). Thus, to
the extent that the parties had an oral agreement regarding child
support, it was supplanted by the consent decree.
In the present suit, there is no reason to
construe the contract and to ascertain the
intention of the contracting parties. The
agreement of the parties is only incidentally
involved, because, insofar as its effect on
the divorce suit is concerned, the contract
provisions pertaining to child support were
supplanted by subsequent court orders in the
divorce suit dealing specifically with that
Eaton v. Eaton, 215 Va. 824, 827, 213 S.E.2d 789, 791 (1975).
Indeed, the consent decree specifically states “that neither
party will pay to the other any child support” and “that each
party shall split equally all un-reimbursed medical bills.” I
find no basis to conclude that the mother was obligated to make
any other payments and that her refusal to pay for an automobile
for the sixteen-year-old child could be considered as a change in
The trial judge’s finding that the father proved a change in
circumstances because the mother “has remarried and has used her
current spouse’s income to help pay her expenses” is tantamount
to holding that the mother’s new spouse must support the mother’s
children. Although the majority disavows requiring the mother’s
new spouse to support her children, the effect of the ruling is
precisely that. Indeed, on the facts of this case, the
majority’s ruling, that “the remarriage of mother and the related
economic impact of her remarriage may be considered a ‘material’
change in circumstances justifying modification of the agreed
amount of child support,” opens the door to requiring every
spouse to contribute to the support of the other spouse’s
children from a previous marriage. This decision is contrary to
the well established principle that the mother’s new husband has
no obligation to support the mother’s children from a prior
marriage. See T… v. T…, 216 Va. 867, 869, 224 S.E.2d 148,
150 (1976). NPA v. WBA, 8 Va. App. 246, 249, 380 S.E.2d 178, 180
The circumstances relied upon to justify a modification in
the consent order are not material to support and do not justify
a change in support. For these reasons, I would hold that the
evidence failed to prove the mother’s re-marriage, her refusal to
pay non-medical expenses, and the changes in visitation are
material changes in circumstances that justified a change in