*1 case, no probability the facts this there is reasonable sup- of the trial have been different if the result would had been defense. pressed documents disclosed Brady violation, As the record does not establish a hold we that the trial court denying did err in Lockhart’s motion set ground. aside verdict this
Accordingly, Lockhart’s conviction is affirmed.
Affirmed.
Francis E. SHOUP Heidi S. SHOUP. Record No. 0098-00-4. Appeals Virginia,
Court Alexandria. Feb. *3 (David Betty Surovell, Thompson, Arlington A. M. Levy; Jackson, Fairfax, brief), Colten & on Dugan, for appellant. (Valerie Szabo, P.L.L.C., brief),
Valerie Szabo on Arlington, appellee. FITZPATRICK, C.J., Present: BENTON and ANNUNZIATA, JJ.
ANNUNZIATA, Judge. (“father”)
Francis E. Shoup appeals judgment the of the Circuit of finding Court Fairfax him in County arrears for support payments in $33,838.20, the of plus amount interest, attorney’s as well as fees and costs. The court also found father in contempt. He contends the trial erred: (1) by disregarding emancipation the of parties’ two of the (2) children in him computing arrearages; finding con- tempt ordering and him to pay arrearages accruing after 1995, given September, evidence that "he had paid amount equivalent to what he owed to the according Virginia support (3) in guidelines; that the finding parties’ agreement concern- of ing modification self-executing was as to costs, not self-executing upon but was changes child-care (4) child; of a to enforce the emancipation by declining the parties’ purported self-executing agreement (5) modification; attorney’s awarding and fees Heidi S. (“mother”). Shoup mother trial court’s of credit to the appeals
The the award alleges The the trial court father for child-care costs. mother (1) by awarding a credit to the father for child-care erred: credit; (2) of for such a request costs in the absence retroactively crediting costs when the child child-care (3) modified; in determining had not been and award expenses. had conceded the issue of child-care mother reverse, part, part. We affirm the order
BACKGROUND final parties The were divorced divorce County September Fairfax Circuit Court on entered divorce, At the had three minor 1994. time 30, 1977; Elliot Shoup, children: Allison born November 8, 1979; IV, Kyle Elliot A.M. Shoup, Francis born June incorpo- born June 1985. final divorce decree Shoup, 27,1994 parties’ Custody, Support Proper- June rated ty Agreement.1 Settlement accordance with provided, part: in relevant 1. The SUPPORT AND MAINTENANCE OF THE CHILDREN shall, directly monthly base ... to Wife a. The Husband Seventy Two Hundred and Seven support amount of Thousand One month, ($2,177.00) per and maintenance of for the Dollars parties____This calculated for children amount the sum *4 by the of support required Section 20-108.2 of Code [is] child as (1950, amended), pursuant the attached as Virginia as worksheet agreement____ Attachment A to this they proportion the parties agree split, that shall in same c. The gross bear their annual combined gross annual incomes their incomes, Agreement or as Attachment A of this as calculated in future, on any child care costs incurred a court in the modified parent. of employment the the custodial of the children due to behalf any change the amount of the notify the of in Wife shall Husband The month, in a that care costs rise In the event child child care costs. $2,177 the final the father to decree ordered month in child to the The also per mother. for a of certain medical ex- provided proportionate division for on penses and reimbursement of child-care costs based the in gross relative annual incomes as calculated the worksheet, support guideline Attachment A to the agreement. child, Allison, from graduated high oldest school in June, eighteen years 1995 and turned of on age November October, 1995, Beginning 1995. the father unilaterally amount support by reduced the of approximately one-third to $1,452 October, per month. beginning Also child-care no child, costs were longer Elliot, incurred. The second graduated from high May, school eighteen and turned June, June, Beginning 1997 the again father unilaterally reduced the of support by amount another one- third to per month. Although the father unilaterally $764 reduced the amount of each support paid on of these two occasions, the record shows that the object mother did not until she filed the suit present collect the arrearages. responsible the reimbursing Husband shall be the onWife the first day next proportionate month for his share of such increases. month, In the that event child care decline costs in a the Wife shall notify the Husband shall payment who reduce his of care costs day the first of next proportionate month his share of such Husband, Upon request by decline. annually the Wife will checks, provide copy deposits the Husband with a of canceled tax may such documenting other information as Wife pay- maintain ment period of child care costs for the for which said information is requested. monthly d. The Husband shall make consecutive of installments day dies, child marries, on the first each of until month each (18) self-supporting, age becomes eighteen reaches the years or emancipated, otherwise becomes whichever first event oc- curs, except paid shall be continue to for a child if he or student, high she is a full-time self-supporting living school custodian, home of residential age until he or she reaches the (19) school, years graduates or high nineteen whichever first occurs. circumstances, any change e. If there is shall follow guidelines §in contained 20-108.2 of Code
Virginia its any Virginia successor statute other relevant statutes and case law for determination of child *5 352 13, for petition
On 1999 the mother filed a rule to April $2,177 failing against per show cause the father 24, matter was month The heard June 30, 1999, In its the trial opinion 1999. letter dated October contempt court found the to be in of court and found father as to the amount contained in that he was arrears October, through May, the final from 1995 1999. Based on the into the final decree, the trial court also father a for his awarded credit incurred payments expenses child-care that had not been the mother. The trial court entered an order dated December 7, and contempt judgment the father entered finding 1999 $33,838.20, principal the father in the sum of with against at rate. It also running judgment interest awarded attorney’s mother her fees.
ANALYSIS I. Support upon Emancipation Automatic Reduction in in holding The father contends the trial court erred argues of the final contempt. him in He terms agree incorporated property settlement divorce decree automatically him his child ment reduce permitted age eighteen payments when each reached high disagree. from school. We graduated of the child or children is Because “best interest guiding principle setting support,” paramount 470, 151, 158, 474 v. 409 S.E.2d Henley, Va.App. 13 Watkinson to the amount of (1991), approve the court must modifications v. at time the modification is made. See Cofer (1965); 663, v. Bennett Cofer, 205 Va. S.E.2d Commonwealth, 696, S.E.2d ; 55, 58-59, 371 (1996) Goodpasture Goodpasture, Va.App. (1988). in Goodpasture, As we noted 847-48 “sub approval by agreement prior modifications without or both of the interests of one the self-determined stitute of the child.” best interests over the court-determined parents at Goodpasture, Va.App. of a child not constitute an emancipation
The
does
precludes
decisional law that
the court
exception Virginia’s
ordering
of support prospectively
modification
and with
approval.
out its
rule
even when the
applies
emancipa
*6
tion of
child is the
for
proposed catalyst
one
the modification
agreement,
by
except
one well defined circumstance not
here.
applicable
support
When
undivided child
award has
children,
for multiple
been made
minor
the
of a
emancipation
child,
the
except
remaining
custody,
permit
last
does not
modification
automatic termination or
of
See Eaton
Eaton,
824,
3,
789,
(1975);
v.
215 Va.
828 n.
213
3
S.E.2d
792 n.
see also
Shapiro, Propriety
S.R.
and
Undivided
Effect of
Person,
596,
Award
More
2
Support
than One
A.L.R.3d
for
of
(1965
Eaton,
§ 5
Supp.2000).2 Although
&
under
the court’s
jurisdiction to
support
enforce
awards
with the
ends
child’s
majority
status,
or emancipated
Eaton does not
stand
the
general
a
proposition
addressing
award
multiple
needs of
minor
may
children
automatically
be
and
unilaterally,
by
either
or
modified without court
Eaton,
approval
826,
upon emancipation.
The prevailing and well-established of principle law requiring contemporaneous approval of modifications has not been diminished or eroded the Commonwealth’s article, only 2. As noted in the A.L.R. one state of the nineteen that have agreed addressed this issue has allowed an automatic or modification of child, support, upon emancipation ap- of oldest absent court proval at time made. modification is Eaton, Supreme In payment Court held that an order for the to the sole minor child "ceased to effective be at 828, majority judicial without a act." at 213 Id. S.E.2d at 792. The holding greater consequence Court’s caveat to the is of the issue case, noted, this however. The Court suit ”[t]his does not involve a lump award ages____ sum for several children of different such cases, judicial proceeding a majority may necessary at be establish 3, parent's liability.” the extent Id. at 828 213 at n. 792 n. 3; 596, § see 2 A.L.R.3d also 5. Eaton is thus limited cases in which sole emancipated. minor child becomes 354 concern- favoring “prompt disputes resolution of policy
public of minor children.” Morris v. ing the maintenance care (1975). Morris, 864, Va. 219 S.E.2d limit or terminate the court’s cannot modify to make and awards. See jurisdiction 1249, 579, Scott, 1245, v. Va.App. Scott (1991) and wife cannot (“[A]greement[s] between husband power its to make and exercising the court prevent awards.”); see Featherstone v. modify also Brooks, (1979) (“Code 443, 446, 258 S.E.2d 220 Va. jurisdiction to continuing the divorce court gives 20-108 custody modify concerning its decree children, a contract between hus- maintenance minor prevent exercising court from this wife cannot band and change requiring circumstances alteration power.”). “Should is to to the support, party’s remedy apply in the amount of Va.App. 371 S.E.2d at Goodpasture, court for relief.” 847; Kaplan, also Kaplan see *7 20-108). (1996) 111, (quoting 114 Code S.E.2d that, Father nevertheless contends because decree, into the court was incorporated was agreement agreement modifica permitting to enforce the bound sure, To be approval. tion of child without court ... into the support] agreement “incorporation [child so agreement the terms decree render[s] Schwarting, 4 Fry of the court.” v. enforceable a decree (1987). However, 342, a 355 S.E.2d 345 Va.App. automatic, permitting an incorporates decree that unilateral, support without upon or modification of agreed nullity Kelley is void. v. approval legal prior court (1994) 298-99, 56-57 449 S.E.2d Kelley, 248 Va. rights (because away their children’s cannot contract “parents right any impinges upon which support,” provision void, incorporates which is and a decree children to O'Brien, void); also v. Riggins see provision such is likewise (2000).4 S.E.2d 320 538 Va.App. parties, by distinguishable from those which 4. This case beyond provide support the child’s obligation to an establish Furthermore, that the terms of the final position father’s of the child permitted decree itself automatic modification upon emancipation award of each child also fails to law, that, court cannot order Virginia consider under of child the occurrence prospective support upon modification Ball, of a future event. See Solomond v. (1996) (reversing support decree which ordered
S.E.2d of children’s education percentage expenses, father to amount); Keyser Keyser, Va.App. rather than a specific (1986) 459, 345 (reversing support for automatic or obli provided increase decrease father’s gation according percentage to the increase or decrease of his income). annual As we have stated: capacities change change as circumstances [N]eeds changes these are not always fairly predictable. [ ] Deter- mination of awards must be based on contemporary circumstances and in the future as changes modified circumstances occur.
Hi H« v v v v v statutory provided by Assembly scheme the General does not automatic contemplate changes escalator claus- es. 461-62, 13-14;
Keyser, Va.App. at
see also
Solomond,
(“A
392-93,
jurisdiction Hershey Hershey, agreement); N.C.App. enforce (1982) (court parties’ agreement enforced provided provide beyond age majority). support that father would of trial court’s award of argument father’s that the Finally, of improper support constituted an enforcement arrearages the central issue misapprehends for an child emancipated in based on the emanci support here: a reduction presented support where an undivided award pation of cases children, of whom remain has been made for several some minors, with the best interests must be consistent lies minor children. The latter determination remaining court, and numerous solely jurisdiction within the factors, presumptive guideline but not limited to the including amount, court in making are to be considered 20-108.2; ser, 20-108.1, Key §§ determination. See Code at at 13. the reduction 345 S.E.2d Whether child, remaining unilaterally by for the minor made support case, with the best interests the father this was consistent a court of law. of the child has never been addressed short, nor the decree parties’ agreement neither the it, for one to establish a mechanism incorporating purporting prior without modify support or both for the father’s con- approval, provides legal underpinning him in appeal finding that the trial court erred tention support obligation. his contempt prior governing of its order court in modifying The father failed to seek relief from the final of divorce and award set forth mother.5 payments his to the improperly reduced him finding that the court did not err Accordingly, we find below, and, we exception with the discussed contempt arrearages. affirm the court’s award
II. Care Costs Reimbursement Child the amount of child determining When child-care award, court is authorized to consider the trial appropriate in the award expenses and include acquiescence in the reduction is irrelevant. We the mother’s note that at 847. Goodpasture, Va.App.
357
20-108.1(B)(8),
§§
those costs.
Code
reflecting
amount
See
.
20-108.2(G)(3)(b)
20-108.2(F),
statutory
virtue of the
By
and,
fact,
in
by
legislature, conceptually
scheme
adopted
case,
a form of child
In this
payments
support.
child-care
are
$2,177
per
the court
the father to
month
child
ordered
costs for child-care as
award included the
hearing. Notwithstanding
at the
of the
determined
time
by
payable
court’s decree which child-care costs were ordered
award,
agreement
as
part
into the
also
notifica
provided
upon
by
any change
expenses
tion
mother of
the child-care
incurred, the father’s
of child-care costs
be
payment
would
accordingly.
increased
decreased
reasoning
legal principles
Based
discussed earli
governing
er
the modification of
we
this
support,
provi
find
sion of the
and decree to be inconsistent with
Virginia
against public
law and void as
See
policy.
Goodpas
ture,
Solomond,
847;
7
22
Va.App. at
for the total
III. Fees Attorney’s *10 losing that the Finally, parties’ agreement provided the shall party’s an enforcement action bear the other party fees, court, discretion, trial in its deter attorney’s and the that trial a reasonable award. Because we find the mined discretion, court not its we affirm the trial court’s did abuse Graves, to v. attorney’s award of fees mother. Graves (1987). 326, 554, 357 S.E.2d reversed in part, part. Affirmed BENTON, Judge, dissenting. § provides
In Code 20-109.1 as follows: pertinent part, affirm, ratify incorporate by and reference Any may any agreement ... valid dissolving marriage its decree thereof, ... concerning or parties, provisions between the children, care, of minor custody and maintenance their any or other condition or consider- establishing imposing or affirms, ation, the court monetary nonmonetary. or Where reference in its decree such incorporates by ratifies and thereof, for all or it shall be deemed agreement provision decree, to be a term of the and enforceable purposes of such decree. any provision same manner as statute, “[incorporation have that Applying this we held ... into the decree rendered support] agreement the [child as a agreement so enforceable the terms of the 173, 179, Schwarting, Va.App. v. Fry decree of the court.” (1987). also held that the statute We have 355 S.E.2d agreement incorporate the court to “does not mandate incorporate to permit[s] court] but “expressly [the whole” Rodriguez v. Rodri- agreement.” of the provisions selected (1985). Moreover, 87, 90, 334 S.E.2d guez, Va.App. 20-108, its long § the divorce court retains to Code pursuant final after a “continuing jurisdiction recognized to respect with entered, modify to its decree divorce has been Lowry, Edwards of minor children.” ... maintenance (1986). power This 232 Va. act of prior is not affected modify into the divorce decree ratifying incorporating affirming, of it. Id. provisions parties’ 5(d) terms, parties’ agreement part By express its the undivided child pay the husband to obligates this case marries,” dies, ineligible or becomes support “until each in the specified events one of the cessation through added). “af- The divorce decree (Emphasis agreement. firmed, ratified, agreement and incorporated” parties’ in accordance pay support specifically ordered husband modified specifically The final decree agreement. with the 5(d), decreeing after part particular, however. ratified, “affirmed, but incorporated, decree, provisions with the merged, into this accordance 20-109.1,” as follows: provides of ... the final decree Code (f) [the is ordered Support. [The husband] Child *11 terms, provi- with all the support child accordance wife] Custody, requirements of their June sions and begin- and Property Agreement; and Settlement Support month every and on the first of ning July $2,177.00 thereafter, the amount of pay shall [the husband] month, for Child per support, [the wife]. as and child dies, marries, continue until a minor child support shall age eighteen years, the emancipated, becomes or reaches court; first, or until further order of the occurs whichever however, if, eigh- his or her that at the date of provided, (i) high a full-time school stu- birthday, teenth child: is (iii) (ii) dent, living the home self-supporting, is not child receiving support, or child parent seeking of the until the child shall continue without abatement support graduates high age years reaches the nineteen school, first occurs. whichever added).
(Emphasis of the Thus, parties’ the terms the decree language the changed child but agreement regarding support, 5(d) of part providing for the event that triggers modification support. of child of requiring Instead the husband to the full undivided child until last ineligi- the child became through events, ble one of specified the cessation of support full, the final decree provided that the undivided child shall be “until a paid minor child” became ineligible through added). one of the cessation of specified (Emphasis events. Thus, language of the divorce decree modified the terms of the child support agreement and clarified the nature father’s support obligation. This modification is consistent with the parties’ agreement, which contains no indication that parties to provide post-minority intended for any 5(d) beyond the cessation specified part events of their 5(e) addition, agreement. In part requires a of support upon modification in circum- stances, manifests that parties intended the result accom- plished by the final decree’s By modification. otherwise incor- porating the parties’ agreement, the final decree contemplated that parties “terms, would abide by agreement’s provisions requirements,” except as modified the final decree.
Significantly, agreement established the initial amount of support, adopted which was in the final decree, as “the sum calculated for re- [is] ..., quired by Section 20-108.2 of Virginia the Code of pursuant the worksheet attached as A Attachment to this agreement.” parties’ agreement required using statutory continue guide determining child pertinent part, agreement provides as fol- lows:
[5(e) circumstances, If any change there is the parties ] shall follow support guidelines the child contained in 20- 108.2 of Virginia the Code of or its successor statute *12 any Virginia other relevant statutes and case law for deter- mination of
^^ ^ ^ 7. MODIFICATIONS IN PAY- CHILD SUPPORT MENTS. under this obligation as there is a long
For so to furnish the Wife hereby agrees Husband Agreement, tax return income signed of his Federal a photocopy with income to form(s) (as any reporting as other well and W Federal recorded on the entities governmental other return) 15 of April on or before years for future income tax 15, 1995, may so that she with commencing April year each year. from to year his income as to the status of be advised the Husband with hereby to furnish agrees The Wife income tax return and W Federal signed of her photocopy form(s) (as to other of income any reporting well as other income on the Federal entities not recorded governmental return) 15 of April on or before each years tax for future may so that he be commencing April with year year year. to status of her income advised as to the husband paid that the proved The evidence by the final and as directed agreement accordance with in the child The husband made the modification decree. cir- changed with the support payments contemporaneously no claim that the amount of cumstances. The wife makes with the schedule Code was not accordance payments Thus, arises. § no issue of retroactive modification 20-108.2. permitted final The and the agreement returning ap- to court for adjustments without make these before the could be made. proval short, authority to order child courts have the 20-107.2, § see Code parties, for the minor children under limited circum- age eighteen for children over the 20-124.2(C). stances, public policy see Code clearly encourages parties “agreement seek Commonwealth care, custody and conditions of ... concerning ... § 20-109.1. In- minor children.” Code maintenance of their affirms; deed, incorporates ratifies and “[w]here thereof, it provision reference in its decree such .or decree, a term of the purposes for all be shall be deemed any of such provision enforceable the same manner give fails to majority opinion § 20-109.1. The decree.” Code policies. effect to these
362
I
majority’s
believe the
on Kelley
reliance
v.
248
Kelley,
Va.
295,
(1994);
449
55
Keyser Keyser,
S.E.2d
v.
2 Va.App.
(1986);
Ball,
and Solomond v.
22 Va.App.
(1996),
cases,
To the extent that the Shapiro, S.R. Propriety Undivided Award Support More than One Effect of Person, (1965 § A.L.R.3d Supp.2000), & bears on this issue, it cites cases for and against proposition that one party may reduce rata an pro undivided “award” for support after a child becomes ineligible to receive further It appears only that case in cited that annotation which addresses the effect of a separation agreement on the child support obligation Hershey Hershey, N.C.App. “ (1982), recognizes ‘where to a separation agreement agree concerning the support and children, maintenance of their minor there is a presumption, the absence of evidence to contrary, that the provisions mutually agreed just reasonable, are upon and the court is not warranted ordering change the absence of any (citation of a evidence conditions.’” at Id. omitted). The court ruled that the father Hershey could not reduce support payments pro rata because the there, agreement case, agreement issue unlike the in this changes. did allow such Id. notes,
Although, majority as the “the mother’s acquiescence irrelevant,” in the reduction is the evidence establishes she receiving precisely was at all times she was pursuant entitled to receive to Code 20-108.2 and consistent with the until the agreement. By waiting oldest two children emancipated filing petition were before her hold the hus- proverbial to have the the mother seeks contempt, band has legal gambit, If loses this she and to eat it too. she cake however, receive; if she she was entitled to received what wins, windfall because the husband’s gets she an undiluted I our passed. has believe opportunity to seek modification that was that we hold her to the require decisions the decree. incorporated and ordered effect *14 § that provides 20-108.2 unambiguous language, Code ... presumption shall be a rebuttable “[t]here application would result from the amount of the award which in this is the correct amount guidelines set forth section I that our cases do not bar the support.” of child believe voluntarily modify to their child parties agreeing 20-108.2, § payments annually according requesting to Code able to make approve being court to such to to their support payments according modifications decree, by when so ordered do affirms, agreement. ratifies reference that incorporates Yet, appears majority opinion it from the that members of the despite good Bar should be on notice that faith efforts placed amicably support arrangements by agree- resolve the child 20-108.2, incorporate ments that the schedules of Code only protect have no safe harbor and can themselves any change in court a filing petition seek modification recognized specifically circumstance that has been court-approved agreement. identified their reasons, judg- For I I would reverse the these dissent. ment, which and reverse the contempt, finds the husband attorney of an fees. finding arrearage and award