COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Duff and Overton Argued at Alexandria, Virginia
JULIA MARIE BEACH MEMORANDUM OPINION * BY v. Record No. 0808-98-4 NELSON T. OVERTON APRIL 27, 1999 RICHARD JEROME KURTZ
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY J. Howe Brown, Jr., Judge
James A. Watson, II (Surovell, Jackson, Colten, Dugan, P.C., on briefs), for appellant.
Sandra L. Havrilak (Marlene M. Hahn; Hicks & Havrilak, on brief), for appellee.
Julia Marie Beach (mother) appeals the decision of the
circuit court refusing her motion for increased monthly child
support payable from Richard Jerome Kurtz (father). On appeal,
mother contends that the trial court erred in finding that there
was no material change in circumstances warranting a change in
child support. Mother contends that the trial court (1) abused
its discretion by concluding that there was no change in
circumstances although mother's expenses and time with the child
had significantly increased while father's expenses had
significantly decreased since entry of the final decree; (2)
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. failed to consider the child's best interests; and (3) erred by
not finding that the parties' agreement was void. We affirm the
decision of the trial court.
The parties, both attorneys, separated in 1993. They had
one child, born in 1991. On September 20, 1993, the parties
executed a Separation and Property Settlement Agreement which
set out, among other provisions, their detailed agreement
concerning child support and custody. The parties agreed to
share joint legal and physical custody of their child until she
began school, and then to establish a new physical custody
schedule when the child started kindergarten. The parties also
agreed to calculate child support based upon their child's
actual expenses, rather than the statutory guidelines; to adjust
the child support automatically in ways set out in the
agreement; and to base their respective support payments upon
their proportionate share of the joint total income. By express
language, "[i]n no event shall a voluntary cessation of
employment relieve the unemployed Party from their child support
obligations." The agreement was incorporated into the parties'
final decree of divorce entered May 30, 1995.
Each party filed a motion to modify the parenting schedule
shortly before the child began kindergarten. By order enter
September 12, 1997, the trial court awarded mother physical
custody of the child during the school year and father physical
-2- custody during the summer. The court reserved its decision on a
modification of support. Following an ore tenus hearing, the
trial court ruled that there was no material change of
circumstances warranting a modification of support. Mother
appealed.
Material Change in Circumstances
As the party seeking to modify child support, mother was
required to prove that there had been a material change in
circumstances since the court's last support order and that the
change justified a modification in support. See Yohay v. Ryan,
4 Va. App. 559, 566, 359 S.E.2d 320, 324 (1987).
A material change in circumstances, standing alone, does not provide a basis for the trial court to modify its support decree. A modification is appropriate only after the court has considered the material change in circumstances in relation to the factors set forth in Code § 20-108, namely, the present circumstances of both parties and the benefit of the children.
Id. "Code § 20-108 gives the divorce court continuing
jurisdiction to change or modify its decree concerning the
custody and maintenance of minor children, and a contract
between husband and wife cannot prevent the court from
exercising this power." Featherstone v. Brooks, 220 Va. 443,
446, 258 S.E.2d 513, 515 (1979). Contracts between parents that
purport to waive the child's right to support and to limit a
court from exercising its jurisdiction over child support are
-3- void ab initio. See Kelley v. Kelley, 248 Va. 295, 298, 449
S.E.2d 55, 56 (1994).
Mother contends that the trial court failed to conduct a
proper review because it erred in finding that she failed to
establish a material change in circumstances. Mother's
contention is refuted by the trial court's order, which sets out
the trial court's findings. Specifically, we disagree with
mother that the trial court failed to find a change in
circumstances. In its order, the trial court found:
It further appearing to the court that there has not been any change in circumstances justifying a change in support from that contemplated in the Property Settlement Agreement, which support was incorporated into the Final Decree of Divorce entered on May 30, 1995.
(Emphasis added.) The trial court found that the changed
circumstances included mother's voluntary unemployment without
legal justification. The trial court then noted:
It further appearing to the court that the provisions for the benefit of the child incorporated into the Property Settlement Agreement were complex and interrelated and served the best interest of the child and that to upset the balance which includes many items for the benefit of the child that might not otherwise be there such as college expense and insurance, because one party chooses to quit working is improper.
It is apparent from the trial court's order that it found
that the parties' circumstances had changed but that those
-4- changes, specifically mother's change in employment status, did
not warrant a modification in support. The trial court
calculated the presumptive amount of child support under the
statutory guidelines but found that, in light of the agreement
which "was heavily negotiated by the parties, both knowledgeable
attorneys, and was done in the best interest of the child that
application of the presumptive child support guideline amount
continues to be unjust and inappropriate in this case." See
Code § 20-108.1(B).
The circumstances had changed since the time the agreement
was incorporated into the final decree. Mother voluntarily
stopped working, leaving a position which paid $5,512 a month. 1
The physical custody schedule had been modified to accommodate
the child's entry into elementary school, so that mother had the
child a greater portion of the year. While the parties no
longer had child care expenses, which father had paid, mother
testified that the child's monthly expenses remained $1,200,
which was the same figure estimated at the time the parties
entered into their support agreement.
Changes in circumstances were expressly considered by the
parties at the time they entered into their comprehensive
1 Wife's promotion was effective before she actually separated from her employment, but she never received a paycheck reflecting that promotion.
-5- property settlement agreement. They recognized the likelihood
of future changes in their respective incomes and the child's
expenses. They provided a means by which actual expenses would
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COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Duff and Overton Argued at Alexandria, Virginia
JULIA MARIE BEACH MEMORANDUM OPINION * BY v. Record No. 0808-98-4 NELSON T. OVERTON APRIL 27, 1999 RICHARD JEROME KURTZ
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY J. Howe Brown, Jr., Judge
James A. Watson, II (Surovell, Jackson, Colten, Dugan, P.C., on briefs), for appellant.
Sandra L. Havrilak (Marlene M. Hahn; Hicks & Havrilak, on brief), for appellee.
Julia Marie Beach (mother) appeals the decision of the
circuit court refusing her motion for increased monthly child
support payable from Richard Jerome Kurtz (father). On appeal,
mother contends that the trial court erred in finding that there
was no material change in circumstances warranting a change in
child support. Mother contends that the trial court (1) abused
its discretion by concluding that there was no change in
circumstances although mother's expenses and time with the child
had significantly increased while father's expenses had
significantly decreased since entry of the final decree; (2)
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. failed to consider the child's best interests; and (3) erred by
not finding that the parties' agreement was void. We affirm the
decision of the trial court.
The parties, both attorneys, separated in 1993. They had
one child, born in 1991. On September 20, 1993, the parties
executed a Separation and Property Settlement Agreement which
set out, among other provisions, their detailed agreement
concerning child support and custody. The parties agreed to
share joint legal and physical custody of their child until she
began school, and then to establish a new physical custody
schedule when the child started kindergarten. The parties also
agreed to calculate child support based upon their child's
actual expenses, rather than the statutory guidelines; to adjust
the child support automatically in ways set out in the
agreement; and to base their respective support payments upon
their proportionate share of the joint total income. By express
language, "[i]n no event shall a voluntary cessation of
employment relieve the unemployed Party from their child support
obligations." The agreement was incorporated into the parties'
final decree of divorce entered May 30, 1995.
Each party filed a motion to modify the parenting schedule
shortly before the child began kindergarten. By order enter
September 12, 1997, the trial court awarded mother physical
custody of the child during the school year and father physical
-2- custody during the summer. The court reserved its decision on a
modification of support. Following an ore tenus hearing, the
trial court ruled that there was no material change of
circumstances warranting a modification of support. Mother
appealed.
Material Change in Circumstances
As the party seeking to modify child support, mother was
required to prove that there had been a material change in
circumstances since the court's last support order and that the
change justified a modification in support. See Yohay v. Ryan,
4 Va. App. 559, 566, 359 S.E.2d 320, 324 (1987).
A material change in circumstances, standing alone, does not provide a basis for the trial court to modify its support decree. A modification is appropriate only after the court has considered the material change in circumstances in relation to the factors set forth in Code § 20-108, namely, the present circumstances of both parties and the benefit of the children.
Id. "Code § 20-108 gives the divorce court continuing
jurisdiction to change or modify its decree concerning the
custody and maintenance of minor children, and a contract
between husband and wife cannot prevent the court from
exercising this power." Featherstone v. Brooks, 220 Va. 443,
446, 258 S.E.2d 513, 515 (1979). Contracts between parents that
purport to waive the child's right to support and to limit a
court from exercising its jurisdiction over child support are
-3- void ab initio. See Kelley v. Kelley, 248 Va. 295, 298, 449
S.E.2d 55, 56 (1994).
Mother contends that the trial court failed to conduct a
proper review because it erred in finding that she failed to
establish a material change in circumstances. Mother's
contention is refuted by the trial court's order, which sets out
the trial court's findings. Specifically, we disagree with
mother that the trial court failed to find a change in
circumstances. In its order, the trial court found:
It further appearing to the court that there has not been any change in circumstances justifying a change in support from that contemplated in the Property Settlement Agreement, which support was incorporated into the Final Decree of Divorce entered on May 30, 1995.
(Emphasis added.) The trial court found that the changed
circumstances included mother's voluntary unemployment without
legal justification. The trial court then noted:
It further appearing to the court that the provisions for the benefit of the child incorporated into the Property Settlement Agreement were complex and interrelated and served the best interest of the child and that to upset the balance which includes many items for the benefit of the child that might not otherwise be there such as college expense and insurance, because one party chooses to quit working is improper.
It is apparent from the trial court's order that it found
that the parties' circumstances had changed but that those
-4- changes, specifically mother's change in employment status, did
not warrant a modification in support. The trial court
calculated the presumptive amount of child support under the
statutory guidelines but found that, in light of the agreement
which "was heavily negotiated by the parties, both knowledgeable
attorneys, and was done in the best interest of the child that
application of the presumptive child support guideline amount
continues to be unjust and inappropriate in this case." See
Code § 20-108.1(B).
The circumstances had changed since the time the agreement
was incorporated into the final decree. Mother voluntarily
stopped working, leaving a position which paid $5,512 a month. 1
The physical custody schedule had been modified to accommodate
the child's entry into elementary school, so that mother had the
child a greater portion of the year. While the parties no
longer had child care expenses, which father had paid, mother
testified that the child's monthly expenses remained $1,200,
which was the same figure estimated at the time the parties
entered into their support agreement.
Changes in circumstances were expressly considered by the
parties at the time they entered into their comprehensive
1 Wife's promotion was effective before she actually separated from her employment, but she never received a paycheck reflecting that promotion.
-5- property settlement agreement. They recognized the likelihood
of future changes in their respective incomes and the child's
expenses. They provided a means by which actual expenses would
be proportionately distributed, based on the occurrence of
certain specific events or on a variation in the actual physical
custody. They expressly and repeatedly indicated their belief
that it was in the child's best interests that support be based
upon the child's actual expenses rather than the presumptive
guideline amount. Therefore, we find mother's contention that
the trial court abused its discretion in failing to find a
material change in circumstances to be without merit.
Best Interests of the Child
Mother also contends that the trial court failed to
consider the best interests of the child because father was
required to pay mother only $30.94 monthly, rather than his
appropriate share of the presumptive guideline amount of $720.
We disagree. The trial court expressly found that the agreement
was in the child's best interests due to the wide range of
additional benefits which the agreement ensured the child.
Moreover, under the terms of the agreement, father's actual
expenses for medical expenses, lessons, and other items were
payable in addition to the net payment of $30.94 to mother.
Evidence supports the trial court's finding that the agreement
continued to be in the child's best interests.
-6- Void Contract
Finally, mother argues that the trial court erred in
enforcing the agreement. Mother contends that the agreement is
void because it limits the amount of support the child is
entitled to receive from both parents. We disagree. Unlike the
contract found to be void in Kelley, nowhere in this agreement
did the parties attempt to circumvent their respective
obligations to pay child support. On the contrary, the parties
are to be commended for their repeated emphasis on the child's
best interests and their consideration for equitably splitting
actual expenses arising in the child's life, as well as
providing for the general needs of food, shelter, and clothing.
If the trial court had found that the agreement was not in the
child's best interest, no provision attempted to bar the court's
exercise of its authority to order child support in a manner
other than that set out in the parties' agreement. Therefore,
we find no error in the trial court's decision to enforce the
agreement.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
-7-