Virostko v. Virostko
59 Va. App. 816
Va. Ct. App.2012Background
- Married in 2005; separated in 2007; PSA executed July 22, 2009 governing child support at $2,300/month.
- Divorce decree October 2, 2009 incorporated the PSA.
- Father deployed in Iraq; PSA provided term-based support and potential future modification.
- Father returned unemployed; mother sought enforcement and arrearage calculation in 2010–2011.
- Trial court held father owed $39,000 in arrearages from October 2009 onward; found PSA modification non-self-executing; retroactive arrearage limited to first noncompliant month.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PSA modification clause is valid and self-executing | Virolstko argues PSA allows unilateral modification. | Mother contends modification requires court approval. | Modification clause valid but not self-executing; court must approve unless objective standards exist. |
| Whether father was in arrears despite alleged agreement | Father claims mother agreed to reduced payments after Iraq return. | Mother did not concede any agreement to reduce payments. | arrears proper; lack of court approval nullifies any informal agreement. |
| Retroactivity date for arrearage calculation | arrears should start on July 1, 2010 (response date). | arrears start October 2009 (no modification authority). | arrearage calculated from first month of noncompliance, October 2009; retroactivity date not adopted. |
Key Cases Cited
- Shoup v. Shoup, 37 Va.App. 240 (2001) (modification provisions must be consistent with best interests and not terminate duty to support)
- Riggins v. O'Brien, 263 Va. 444 (2002) (no court approval for renegotiated support requires arrearages and interest still payable)
- Schmidt v. Schmidt, 6 Va.App. 501 (1988) (past-due support becomes vested and immune from change)
- Richardson v. Moore, 217 Va. 422 (1976) (delay in enforcement or accepting lesser amounts does not relieve obligor)
- Kelley v. Kelley, 248 Va. 295 (1994) (right to support belongs to child; court review essential)
- Featherstone v. Brooks, 220 Va. 443 (1979) (public policy and court oversight in child-support matters)
- Goodpasture v. Goodpasture, 7 Va.App. 55 (1988) (arrearages vest and may not be retroactively altered)
- Cofer v. Cofer, 205 Va. 834 (1965) (retroactive adjustments to support limited by vesting rules)