Herbert Wilmer Walker v. Sharon Ann Walker May

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Bumgardner
HERBERT WILMER WALKER
MEMORANDUM OPINION *
v. Record No. 1266-97-4 PER CURIAM
FEBRUARY 3, 1998
SHARON ANN WALKER MAY
FROM THE CIRCUIT COURT OF PAGE COUNTY
Perry W. Sarver, Judge
(Ronald R. Tweel; William C. Scott, IV;
Michie, Hamlett, Lowry, Rasmussen & Tweel, on
briefs), for appellant.
(John P. McNeill, on brief), for appellee.
Herbert Wilmer Walker (Walker) appeals the decision of the
circuit court finding him liable for an arrearage in child
support for his daughter, Christina. Walker contends that the
trial court erred in finding that (1) he had a continuing
obligation under the March 11, 1991 order to pay child support
beyond when his daughter turned eighteen and graduated from high
school, and (2) the court had jurisdiction to order him to pay
child support for a child no longer entitled to support under
Virginia statutory law. Upon reviewing the record and briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
Pursuant to an order entered in November 1988, prior to the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
enactment of the statutory child support guidelines, Walker paid
$300 in child support for Christina to his former wife, Sharon
Ann Walker May (May). In December 1990, May sought monthly child
support for the parties' son, Shaun, when custody of Shaun
switched from Walker to May. By order enter March 11, 1991, the
trial court awarded $510 in support "for the support of the two
(2) minor children" pursuant to the child support guidelines set
out in Code § 20-108.2. Christina reached age eighteen in April
1993 and graduated from high school in June 1993. In June or
July 1993, Walker unilaterally reduced his child support payment
to $210. He did not seek modification by the court of the
existing order. In 1996, May filed a petition to reinstate and a
petition to recover an alleged child support arrearage. The
trial court ruled that Walker owed $15,948 in unpaid child
support and interest under the unmodified 1991 court order.
Continuing Obligation to Pay
The 1991 child support order set a single child support
award for both children as required by the statutory guidelines
then in effect. See Richardson v. Richardson, 12 Va. App. 18,
20, 401 S.E.2d 894, 895 (1991). Specifically, the trial court
ordered that Walker "pay for the support of the two (2) minor
children . . . the sum of Five Hundred Ten Dollars ($510.00) per
month . . . ." The increased support was made retroactive as of
the time May filed her petition in December 1990. The court's
references to separate dollar amounts vis-a-vis Christina and
- 2 -
Shaun merely summarized the circumstances prior to the changed
custody arrangement for Shaun. Nothing in the language of the
1991 order setting the monthly payment supports Walker's argument
that the court intended its award to be a divisible order of
different amounts for the two minor children.
Child support may not be modified retroactively. See Code
§ 20-108; see also Goodpasture v. Goodpasture, 7 Va. App. 55, 58,
371 S.E.2d 845, 847 (1988). "Should circumstances change
requiring alteration in the amount of support, a party's remedy
is to apply to the court for relief." Id.; see Fearon v. Fearon,
207 Va. 927, 932, 154 S.E.2d 165, 168 (1967); Taylor v. Taylor,
10 Va. App. 681, 682-84, 394 S.E.2d 864, 865-66 (1990). The
March 1991 order contained no provision related to the cessation
of support upon either child's reaching the age of majority or
graduating from college. Walker could not unilaterally adjust
the amount of child support he was required to pay. Therefore,
the trial court did not err in finding Walker had a continuing
obligation to pay support until further order of court.
Jurisdiction
Unless the parties agree otherwise, child support is
available until high school graduation for a child under age
nineteen who is a full-time student and not self-supporting. See
Code §§ 20-107.2, 20-124.1. It is uncontested that the trial
court had jurisdiction to enter its child support order in 1991.
The order from which this appeal is taken required payment of an
- 3 -
arrearage based upon the valid, unmodified order. It is
irrelevant that the trial court would have lacked jurisdiction to
order the payment of support beyond Christina's minority. We
find no error in the trial court's finding of an arrearage for
Christina's support pursuant to the unmodified and extant court
order.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
- 4 -