Tamena Genell Wilson v. Fitzgerald Britton ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Russell and Retired Judge Bumgardner*
Argued at Norfolk, Virginia
UNPUBLISHED
TAMENA GENELL WILSON
MEMORANDUM OPINION** BY
v. Record No. 2081-17-1 JUDGE MARY GRACE O’BRIEN
AUGUST 21, 2018
FITZGERALD BRITTON
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles E. Poston, Judge
Tamena G. Wilson, pro se.
Jennifer E. Peterson (Peterson Law, PLC, on brief), for appellee.
Tamena G. Wilson (“mother”) appeals an order terminating Fitzgerald Britton’s (“father”)
child support obligation effective May 25, 2010, the date when he obtained custody of the parties’
minor child. The underlying child support obligation originated in a December 6, 2006 agreed
order. Mother asserts the court erred by “retroactively terminating” father’s child support obligation
when he was awarded custody on May 25, 2010, even though no motion to modify the December
2006 order was pending, and by failing to award mother arrears pursuant to the December 2006
order.1
*
Judge Bumgardner participated in the hearing and decision of this case in his capacity as a
senior judge of this Court prior to July 1, 2018 and thereafter by designation pursuant to Code
§ 17.1-400(D).
**
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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Mother also contends the court erred by not dismissing father’s appeal based on his failure
to post a bond. However, the court dismissed the appeal on the separate ground that it was not
timely filed. Neither party objected to the dismissal. Because the court dismissed father’s appeal on
other grounds, mother was not aggrieved by the court’s decision. See Code § 17.1-405(3)(c)
(providing that ‘[a]ny aggrieved party may appeal to the Court of Appeals from . . . [a]ny final
BACKGROUND
The parties were never married and have one child together, born July 25, 2006. On
December 6, 2006, the Norfolk Juvenile and Domestic Relations District Court (“the JDR court”)
granted mother custody of the child and entered an order reflecting the parties’ agreement that father
pay mother five hundred dollars a month in child support. Mother opened a case with the
Department of Social Services, Division of Child Support Enforcement (“DCSE”), and father made
payments through that agency pursuant to an income deduction order filed with his employer.
On May 25, 2010, the JDR court transferred physical custody of the child to the father and
granted the parties joint legal custody. Mother appealed to the Norfolk Circuit Court (“the circuit
court”). In October 2011, the circuit court entered an order granting father sole legal and physical
custody of the child. Mother appealed to this Court, and we affirmed. See Wilson v. Britton,
Record No. 2344-11-1, 2012 Va. App. LEXIS 291 (Va. Ct. App. Sept. 4, 2012).
Following the May 2010 custody transfer, father sent a copy of the JDR order to DCSE.
The agency responded with a communication stating, in relevant part as follows:
[t]he past due support debt on your case is $0.00 . . . [t]he amount of
your child support obligation is $.00 monthly . . . [and] I have
received your order where you now have physical custody of your
child. I am preparing your case for closure, I have sent a release to
DFAS [Defense Financing and Accounting Services] if another
payment comes out you will get a refund.
Father made no further support payments and has maintained sole physical custody of the child
since May 2010.
After obtaining custody in May 2010, father filed a petition for child support in the JDR
court. On November 1, 2011, the JDR court entered a temporary support order requiring mother to
pay father three hundred dollars a month in child support. Both parties were present at that hearing
judgment, order, or decree of a circuit court involving . . . child support.”). Therefore, we will not
consider the merits of this assignment of error.
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and at a subsequent proceeding on January 10, 2012, when the JDR court entered a final support
order with the same provisions. Mother did not appeal that order.
On November 1, 2016, father filed a “Motion to Amend or Review Order” with the JDR
court. He requested the following relief:
That child support payable to [mother] from [father] be abated and
that any arrears be established giving due consideration to in kind
payments, unjust enrichment and the entry of an Order for Support of
the same minor child wherein the Payee became the Payor on
November 1, 2011.
After a number of continuances, on May 5, 2017, the JDR court entered an order terminating the
December 2006 support order as of October 31, 2011. Mother and father both appealed the May 5,
2017 order to the circuit court.
Mother moved to dismiss father’s appeal on the grounds that it was not timely filed and that
he failed to post a bond. The circuit court dismissed father’s appeal because it was not timely filed,
but conducted a de novo hearing on the issues raised in mother’s appeal. Following the hearing, the
court held that after father received sole physical custody in 2010, mother
was not entitled to child support, and the support order that required
the father to pay her was necessar[ily] terminated. Even if the
support order [was] not terminated, the father fulfilled his obligation
to pay child support payments by making nonconforming payments.
He supported the child completely, and the mother contributed
nothing to the child’s support.
The court found that “giving due consideration to in kind payments and unjust enrichment,” father’s
support obligation ceased on May 25, 2010, when he obtained physical custody. The court granted
father’s motion to terminate support as of May 25, 2010.
DISCUSSION
Mother contends that the court erred by terminating father’s support obligation effective
May 25, 2010, because the parties did not have a motion to amend support before the court on that
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date. She also asserts that the court erred by failing to assess child support arrears against father for
his failure to make payments after May 25, 2010.
“It is well settled that both parents owe a duty of support to their child.” Commonwealth ex
rel. Gray v. Johnson, 7 Va. App. 614, 622, 376 S.E.2d 787, 791 (1989). However, “the right is
solely that of the child. The [parent] simply has the right to act as a conduit for the payments of
support to the child.” Id.
Mother relies on Code §§ 20-74 and -108, each of which provides as follows:
No support order may be retroactively modified, but may be
modified with respect to any period during which there is a pending
petition for modification in any court, but only from the date that
notice of such petition has been given to the responding party.
“Generally, the terms of a support decree must be strictly complied with and payments made
when due to the designated payee in accordance with the terms of the decree.” Commonwealth v.
Skeens, 18 Va. App. 154, 158, 442 S.E.2d 432, 435 (1994). Support payments become vested as
they accrue. Smiley v. Erickson, 29 Va. App. 426, 432-33, 512 S.E.2d 842, 845 (1999). See also
Cofer v. Cofer, 205 Va. 834, 838, 140 S.E.2d 663, 666 (1965), rev’d on other grounds by Singh v.
Mooney, 261 Va. 48, 541 S.E.2d 549 (2001).
A party may not unilaterally modify court-ordered support, and even an informal agreement
between parents to suspend or change the amount of support is not binding. See Goodpasture v.
Goodpasture, 7 Va. App. 55, 58, 371 S.E.2d 845, 847 (1988). Because a unilateral or temporary
modification to support not made pursuant to a court order can impose a hardship on the child to
whom support is due, a party requesting an alteration must first “apply to the court for relief.” Id.
(holding that because mother did not relinquish custody of the child, the minor was deprived of his
right to child support despite the parents’ agreement to abate father’s obligation).
Certain narrow exceptions apply to the general rule prohibiting retroactive modification of
child support orders. See Acree v. Acree, 2 Va. App. 151, 157, 342 S.E.2d 68, 71 (1986). In Acree,
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the parties decided that one of their daughters, who previously lived with her mother, would
permanently reside with her father. Id. at 153, 342 S.E.2d at 69. The parents also agreed that in
view of the total change in custody, the father would no longer pay court-ordered support for that
child. Id. The mother subsequently filed an enforcement action, claiming support arrearages for the
years the child lived with the father pursuant to the parties’ agreement. Id. We noted that child
support is paid “for the benefit of the child,” and when the father assumed full custody and total
responsibility for the child’s support, enforcing the language of the decree “would unjustly enrich
the wife[,] shock the conscience of the average person[,]” and serve “[n]o beneficial purpose.” Id.
at 154, 158, 342 S.E.2d at 69, 72. We recognized that the purpose of the general rule denying credit
for non-conforming payments such as gifts, direct payments to the child, or payment to an
educational institute is to avoid “detriment to the custodial parent and child for whose benefit the
support was to be paid.” Id. at 157, 342 S.E.2d at 71. Accordingly, we held that when
the custodial parent has by his or her own volition entered into an
agreement to relinquish custody on a permanent basis and has further
agreed to the elimination of support payments and such agreement
has been fully performed . . . the purpose to be served by application
of an inflexible rule denying credit for nonconforming payments is
outweighed by the equities involved.
Id. See also Skeens, 18 Va. App. at 158, 442 S.E.2d at 435 (“A court may, when equitable and
under limited circumstances, allow a party credit for non-conforming support payments, provided
that the non-conforming payment substantially satisfies the purpose and function of the support
award . . . and to do so does not vary the support award.” (citation omitted)).
We declined to apply the exception established in Acree to the facts of Gallagher v.
Gallagher, 35 Va. App. 470, 479, 546 S.E.2d 222, 226 (2001) (en banc). In Gallagher, the parties
agreed to a partial split of physical custody, and a dispute later arose concerning non-conforming
support payments. Id. at 473-75, 546 S.E.2d at 223-24. We refused to give the father credit for
non-conforming payments. Id. at 479, 546 S.E.2d at 226. We held that “absent a complete change
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in custody, ‘the appropriate remedy’ in a case in which the parties have agreed to a modification of
support ‘is for the parties [timely] to petition the court to modify the decree.’” Id. at 478, 546
S.E.2d at 226 (alteration in original) (emphasis added) (quoting Skeens, 18 Va. App. at 158, 442
S.E.2d at 435).
Mother argues that Acree is inapplicable because the parties did not enter into an agreement
for a permanent change in custody; father was awarded custody by court order. She also contends
that she never agreed to eliminate father’s support payments. However, a “court’s order transferring
custody . . . substitutes for the Acree requirement that an agreement by the parties regarding
permanent custody must be established.” Jones v. Davis, 43 Va. App. 9, 16, 595 S.E.2d 501, 504
(2004). Although we recognized this rule in Jones, this Court declined to award the father
retroactive payments in that case because he unilaterally modified his support payments without an
agreement or filing a petition to modify support. Id.
In contrast, here, the court granted father sole physical custody of the child in May 2010.
Father filed a petition to modify support after the court granted him custody. DCSE advised father
that at the time he obtained custody, he had no support arrearage nor ongoing obligation to make
payments. Mother acknowledged that she received a copy of this notice from DCSE but took no
enforcement action. Father subsequently filed a petition in the JDR court to obtain child support
from mother. After a hearing on November 1, 2011, the court entered an order requiring mother to
pay father child support. Both parties were present at the hearing, and mother did not appeal the
court’s order. That order effectively replaced the previous order requiring father to pay mother
child support.
“[W]hen a complete change in custody occurs, the parent originally obligated to pay support
for that child ‘has . . . furnished support in a different manner under different circumstances easily
susceptible of proof.’” Gallagher, 35 Va. App. at 477, 546 S.E.2d at 225 (quoting Acree, 2
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Va. App. at 157, 342 S.E.2d at 71). Here, as in Acree, a complete change in custody occurred.
Further, following the change in custody, father took action to modify the existing support order by
filing a petition requesting that mother pay child support to him. The court granted father’s request
by entering orders requiring mother to pay child support. We find that based on the complete
change of custody and the JDR court’s subsequent modification of support by entry of orders
requiring mother to pay child support, father’s obligation terminated on the date the court ruled on
his petition, November 1, 2011. Accordingly, although we affirm the circuit court’s decision to
terminate father’s child support obligation, we remand the case for entry of an order amending the
termination date to November 1, 2011, and for calculation of the arrearages that father owes mother
from his last payment until November 1, 2011.
Finally, both parties have requested attorneys’ fees and costs incurred in this appeal. See
Rule 5A:30(b); O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). In
determining whether to make such an award, the Court “shall not be limited to a consideration of
whether a party’s position on an issue was frivolous or lacked substantial merit but shall consider all
the equities of the case.” Rule 5A:30(b)(3). After due consideration, we decline to award attorney’s
fees and costs to either party.
Affirmed in part, reversed in part and remanded.
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