Kaminsky v. Kaminsky

60 Va. Cir. 353, 2002 Va. Cir. LEXIS 405
CourtVirginia Circuit Court
DecidedNovember 13, 2002
DocketCase No. (Chancery) 153463
StatusPublished
Cited by1 cases

This text of 60 Va. Cir. 353 (Kaminsky v. Kaminsky) is published on Counsel Stack Legal Research, covering Virginia Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kaminsky v. Kaminsky, 60 Va. Cir. 353, 2002 Va. Cir. LEXIS 405 (Va. Super. Ct. 2002).

Opinion

By Judge Stanley P. Klein

This matter is before the court on Plaintiff Teresa Anne Kaminsky (Mother)’s Verified Petition for Rule to Show Cause, the Rule to Show Cause entered by Judge Leslie Alden on April 16, 2002, and the cross-petitions of Defendant Robert Howard Kaminsky (Father) and Mother for a reduction or increase in the child support to be paid by Father to Mother for their minor son, Daniel. The arguments raised by the parties require this court to analyze (1) the enforceability of child support provisions in marital agreements in light of the recent en banc decision of the Court of Appeals of Virginia in Shoup v. Shoup, 37 Va. App. 240, 556 S.E.2d 783 (2001) (en banc), and the subsequent decision of the Supreme Court of Virginia in Riggins v. O ’Brien, 263 Va. 444, 559 S.E.2d 673 (2002); and (2) the scope and breadth of the Supreme Court’s decision in Antonelli v. Antonelli, 242 Va. 152, 409 S.E.2d 117 (1991), wherein the Supreme Court imputed income for child support purposes to a payor parent who made a good-faith change in his employment.

[354]*354I. Background

On November 26, 1997, the Kaminskys entered into a Separation and Property Settlement Agreement (PSA) drafted by William J. Lyden, counsel for Mother. At that time, the parties had two minor children, Natalie Jean Kaminsky and Daniel Nathan Kaminsky. In paragraph 5(a) of the PSA, the parties agreed that Father would pay Mother the sum of $813.59 per month as child support, which was calculated pursuant to Virginia Code § 20-108.2. In addition, the parties included, inter alia, the following terms in paragraphs 5(b) and 5(c) of the PSA.

Paragraph 5(b). In January of each year, beginning in 1998, the Parties agree that they shall exchange gross income data including, but not limited to, all W-2 forms received by the Parties, in order to adjust the child support payments for the forthcoming year so that said payments remain in conformity with Virginia Code Section 20-108.2....
Paragraph 5(c). Upon emancipation of each child at age 18 or the graduation from high school, whichever event occurs last, reductions in child support shall occur immediately and shall follow the guidelines issued by the Commonwealth of Virginia, Guidelines for Child Support, Virginia Code Sec. 20-108.2.

The PSA was incorporated into the parties’ Final Decree of Divorce, which was entered by the court on March 24, 1998.

In February 2000, Father resigned his position at Computer Science Corporation (SCI). He testified at the hearing on the instant petitions that between 1998 and the time of his resignation from SCI, sixteen of the thirty-two members of his employment team had either resigned or were terminated. According to Father, the majority of the remaining employees, including his supervisor, were looking for other jobs when Father left SCI in February 2000.'

Father also testified that in February 2000, he was forced to leave the residence he was renting because of foreclosure proceedings. He claimed there were no employment opportunities for him in the D.C. metropolitan area and, as a result, he looked into employment possibilities in various areas, including Rochester, New York, where his fiancée lived. A headhunter obtained an interview for Father with Kodak at its headquarters in Rochester, New York, and Father moved to upstate New York without first obtaining new employment. In fact, Kodak had already begun to downsize and he was never offered any employment with that corporation.

[355]*355From March 2000 until October 2000, Father worked for his fiancée’s brother’s lawn service business, earning $500.00 per week. In October 2000, he became unemployed and thereafter received weekly unemployment benefits of $344.25 from the State of New York until May 2001, when he obtained his present employment with the Association for Retarded Persons in Rochester. He earns $905.00 bi-weekly through that employment. The parties stipulated that Mother earned between $2,999.00 and $3,495.00 per month during the relevant time frames.

Father testified that, in January of each year commencing January 1998, the parties exchanged information concerning their incomes. Nonetheless, he continued to pay support at the same initial $813.59 per month level until July 2000, when he claims that the parties agreed to a reduction to $500.00 per month based upon their eighteen-year-old daughter Natalie’s graduation from high school. Father paid Mother $500.00 per month from July 2000 through March 2001, when his payments became inconsistent. Father contends that he simply does not have the financial ability to make higher monthly support payments. Mother testified at the hearing that, although the parties exchanged financial information at least once after execution of the PSA, they never reached an agreement as to an appropriate modified level of support. She explained that she had not sought relief from the court before the filing of the pending petitions because she did not have the financial ability to retain counsel.

Father argues (1) that pursuant to the en banc decision in Shoup, the Final Decree incorporating the PSA effected a change in the court ordered child support in July 2000, when Natalie graduated from high school and in January of each subsequent year; and (2) that the court should not impute income to him based upon the circumstances surrounding his voluntary resignation from SCI in February 2000, but, if the court disagrees, income should no longer be imputed to him based upon his good faith efforts to obtain suitable employment during the ensuing two plus years. Mother responds (1) that the Supreme Court decision in Riggins precludes any “retroactive” reduction in the level of child support previously ordered as no decree has yet been entered modifying the court-ordered monthly sum; and (2) that the Supreme Court decision in Antonelli mandates that this court continue to impute income to Father.

II. Analysis

It has long been settled in Virginia that a court is without authority to retroactively modify past due installments of child or spousal support. Cofer v. [356]*356Cofer, 205 Va. 834, 838-39, 140 S.E.2d 663, 666-67 (1965); Richardson v. Moore, 217 Va. 422, 229 S.E.2d 864 (1976); Alig v. Alig, 220 Va. 80, 255 S.E.2d 494 (1979); Commonwealth v. Skeens, 18 Va. App. 154, 158, 442 S.E.2d 432 (1994); Va. Code § 20-112.

Recently, the Court of Appeals of Virginia in Shoup v. Shoup, 37 Va. App. 240, 556 S.E.2d 783 (2001) (en banc), and then the Supreme Court of Virginia in Riggins v. O'Brien, 263 Va. 444, 559 S.E.2d 673

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Bluebook (online)
60 Va. Cir. 353, 2002 Va. Cir. LEXIS 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaminsky-v-kaminsky-vacc-2002.