Is a husband who unilaterally reduces his child support payments when one of two children reaches the age of majority in contempt of court in Virginia when no reduction is expressly provided for in the separation agreement?

Is a husband who unilaterally reduces his child support payments when one of two children reaches the age of majority in contempt of court in Virginia when no reduction is expressly provided for in the separation agreement?

Not necessarily, according to Hughes v. Hughes, No. 2602-09-4, where the Court of Appeals of Virginia reversed the Virginia circuit court’s finding that husband was in contempt of court, holding that while the husband owed an arrearage on child support payments, he had not willfully violated the Property Settlement and Separation Agreement (PSA).

At issue in this case was a dispute over child support owed following the divorce of the parties, who at the time of the divorce had two minor children. The Property Settlement and Separation Agreement (PSA) that had been incorporated into the divorce decree provided that the father would provide for the minor children in the amount of $1,175.00 per month until the children reached the age of 18 or up to 19, if they had remained in the mother’s home and were attending high school.  The separation agreement also included a provision for attorney’s fees to either party in the event of a successful enforcement of the agreement, or a successful defense to an action to enforce the agreement.

When the oldest child turned 18 years old, the father unilaterally cut his monthly child support payments in half.  The wife petitioned for a rule to show cause.  At the show cause hearing in the Virginia Circuit Court, the husband explained that he did not seek the court’s approval before reducing the amount of child support because he did not think it was necessary. The Circuit Court judge found that the property settlement agreement was incomplete, as it did not provide a method for calculating the amount of child support payments upon the emancipation of the first minor child, and the court would not supply the missing language for the parties.  The Virginia Circuit Court judge noted that he might not have found the husband in contempt of court if the husband had reduced child support in accordance with the Virginia child support guidelines under Virginia Code Section 20-108.2, which generate the presumptively correct amount of child support in a child support dispute.  Consequently, the Court found the husband in civil contempt, but allowed him to purge himself of contempt by paying the arrearage based on the full amount of child support.  The Virginia Circuit Court judge did note that it was a “close case” on the contempt issue because of the ambiguity of the agreement at issue.

On appeal, the husband argued that Virginia Code §20-109 permitted him to modify the child support amount without consulting the court or seeking permission. He argued that the section regarding incorporation should apply: “Unless otherwise provided for in such agreement or decree incorporating such agreement, such future modifications shall not require a subsequent court decree. The Virignia Court of Appeals rejected this argument, claiming that this provision only applies when the method of calculation is included in the agreement. See Shoup v. Shoup, 37 Va. App. 240, 556 S.E.2d 783 (2001)(en banc).  The Court of Appeals determined that because the language of the PSA was self-executing, the husband had to obtain court approval prior to modifying any support. See Goodpasture v. Goodpasture, 7 Va. App. 55, 371 S.E.2d 845 (1988) (holding that the proper remedy is to apply to the court for relief). See also Johnson v. Johnson, 1 Va. App. 330, 338 S.E.2d 353 (1986). Therefore, the Court affirmed the finding of the circuit court in holding Mr. Hughes to the payment of the arrearage.

The husband also argued that the trial court erred by finding him in civil contempt. The Court of Appeals reviewed the standard for contempt, establishing that the court may hold an offending party in contempt for acting in bad faith or willful disobedience of its order. See Alexander v. Alexander, 12 Va. App. 691, 406 S.E.2d 666 (1991).  However, the Court also noted in Winn v. Winn, 218 Va. 8, 235 S.E.2d 307 (1977) that contempt should only be found where a party violated the express terms of a court order.  Here, the Court of Appeals held that the husband, although he had willfully violated the divorce decree, had not violated an express duty of the PSA. Accordingly, the Court reversed the trial’s court determination.

Finally, the wife argued that she should receive attorney’s fee based on the provisions of the PSA. The Court of Appeals acknowledged that once the parties enter a valid and enforceable PSA, the judge may only use the terms of the agreement to make that determination. See Rutledge v. Rutledge, 45 Va. App. 56, 608 S.E.2d 504 (2005). The Court of Appeals in Hughes v. Hughes held that since the PSA in this case provided that the wife was entitled to “any reasonable expenses,” and, consequently, the trial court erred by refused to award them to the wife.

You should consult with your Virginia child support lawyer concerning any reduction of child support upon your child reaching the age of majority.

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