775 S.E.2d 449
Va. Ct. App.2015Background
- Parties divorced in 2005; their May 22, 2004 Property Settlement Agreement (PSA) (incorporated, not merged) required Husband to pay $5,000/month for two children until each graduated college and allocated college expenses equally. The $5,000 exceeded Virginia guidelines.
- The PSA included a clause that if Husband sought a downward adjustment in child support, Wife could pursue spousal support, marital share of business interests, and recover attorney’s fees and costs.
- Husband filed to modify child support in 2013, noting changed circumstances (older son R.E. reached majority and is in college; daughter S.E.’s tuition reduced; Wife’s income increased).
- Trial court dismissed modification as to adult son R.E. for lack of jurisdiction, and granted Wife’s motion in limine excluding evidence that the $5,000 total could be apportioned or reduced below $5,000, effectively preventing Husband from showing a lower total obligation.
- Husband appealed; the Court of Appeals considered preservation, jurisdiction to modify support for an adult child, the parol-evidence issue, and whether the $5,000 obligation is divisible or reducible while one child remains a minor.
Issues
| Issue | Husband's Argument | Wife's Argument | Held |
|---|---|---|---|
| Whether trial court preserved Husband’s objection on appeal | Husband preserved objections in pleadings, on record, and by noting objection on final order | Wife argued Husband consented to dismissal and invited error by endorsing the order | Preserved: Husband properly preserved objection; appeal considered |
| Whether court had jurisdiction to modify support attributable to adult son R.E. | Husband: PSA contemplates post-majority modification; court retains power under agreement | Wife: Statutory jurisdiction ends at majority; PSA contains no clear grant to allow post-majority modification | Affirmed: Court lacked jurisdiction to modify amounts attributable to R.E. absent clear agreement to permit post-majority modification |
| Whether PSA fixes an indivisible $5,000/month that cannot be apportioned between children | Husband: PSA allows downward modification and contemplates adjustments; $5,000 can be apportioned and reduced while one child is minor | Wife: PSA unambiguously fixes $5,000 total until both finish college; parol evidence barred | Reversed in part: PSA does not unambiguously bar apportionment or downward modification while at least one child is a minor; parol evidence and proof allowed |
| Whether trial court erred in granting motion in limine excluding evidence of needs/apportionment and potential reduction below $5,000 | Husband: Exclusion prevented proof required under Kelley/Shoup/Cutshaw and produced untenable results | Wife: Parol evidence rule and clear PSA language bar such evidence; dismissal appropriate | Reversed in part: Motion in limine improperly granted; remand for evidence to apportion support and determine whether S.E.’s support (and thus total) should be reduced |
Key Cases Cited
- Cutshaw v. Cutshaw, 220 Va. 638 (statutory jurisdiction over child support ends at majority absent clear agreement)
- Kelley v. Kelley, 248 Va. 295 (contract cannot preclude court’s power to decree support for minor children)
- Shoup v. Shoup, 37 Va. App. 240 (agreement valid where it did not bar court’s jurisdiction to modify support for minors)
- Goldin v. Goldin, 34 Va. App. 95 (parties’ rights under contract governed by law at formation; divorce court jurisdiction ends at majority)