CW, DSS, DCSE, Sarah Carter v. David M. Branch ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
o/b/o SARAH CARTER
MEMORANDUM OPINION * BY
v. Record No. 2860-97-2 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 6, 1998
DAVID M. BRANCH
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Janice W. McDaniel, Special Counsel (Susan T.
Ferguson, Special Counsel; Mark L. Earley,
Attorney General; Ashley L. Taylor, Jr.,
Deputy Attorney General; Robert B. Cousins,
Jr., Senior Assistant Attorney General; Craig
M. Burshem, Regional Special Counsel, on
brief), for appellant.
No brief or argument for appellee.
The trial court reduced the accrued child support owed by
David M. Branch and disallowed interest on the amount found in
arrears. The Division of Child Support Enforcement moved the
court to reconsider, and appeals the denial of that motion.
Finding that the court erred, we reverse and enter final
judgment.
When the parties divorced, the court awarded Sarah Branch
Carter custody of the parties' three children and child support
of $1,200 per month. The court reduced this amount to $900 per
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
month in 1991. After the Division took responsibility for
collection of the support, it moved to reinstate and to show
cause alleging an arrearage of $14,727.58. At the hearing the
Division proved that the accrued arrears were $16,750 and that
interest was $1,112.56. The trial court acknowledged that it
could not revise its child support order of 1991, but found the
arrearage to be only $11,150. It refused interest on the
arrears, and allowed the husband to pay the arrears in four
annual increments. The court held the husband in contempt,
sentenced him to ninety days in jail, but suspended the sentence
conditioned on making the annual payments.
The Division appeals arguing that the husband's arrears were
$17,862.56 as of June 11, 1997. It argues that the reduction was
a retroactive modification prohibited by Code §§ 20-74 and
20-108. In addition, it argues that interest is mandatory unless
waived in writing and that the trial court cannot disallow it in
this case. We agree.
The trial court found that the arrearage was $11,150, but
the record does not support this. The record shows the arrearage
was $16,750 as of the hearing. That figure was uncontested, and
the husband stipulated that it was correct. The husband only
argued that he made payments of approximately $10,000 to benefit
the children and they should offset his support payments.
A court is without authority to modify its decree
retroactively and relieve a husband of obligations to pay past
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due installments. See Cofer v. Cofer, 205 Va. 834, 839, 140
S.E.2d 663, 666 (1965); Taylor v. Taylor, 10 Va. App. 681, 683,
394 S.E.2d 864, 866 (1990); Goodpasture v. Goodpasture, 7 Va.
App. 55, 58, 371 S.E.2d 845, 847 (1988). Past due support
payments become vested when they accrue and are immune from
change. See Goodpasture, 7 Va. App. at 58, 371 S.E.2d at 847
(citing Cofer, 205 Va. at 839, 140 S.E.2d at 667).
"'[E]ven a court of equity, in an effort to do equity,
cannot disregard the provisions of a lawful decree.'" Fearon v.
Fearon, 207 Va. 927, 931, 154 S.E.2d 165, 168 (1967) (quoting
Bradley v. Fowler, 192 P.2d 969, 975 (Wash. 1948)). The
supporting parent needs to make payments when due. See id. In
Fearon, a husband's payments to his children, or on their behalf,
were considered a gift or gratuity to the children and could not
be credited against his support obligations to his wife. Child
support is not subject to compromise and reduction.
The record is not clear whether the court reduced the
arrears because the husband made payments for the benefit of the
children. However, on the record before us that would not be a
proper basis to reduce the arrears. The proper remedy is a
motion to modify support because of changed circumstances. See
Goodpasture, 7 Va. App. at 58, 371 S.E.2d at 847. The husband
never made a motion to modify, and we find that the court erred
when it reduced the arrears.
All orders for child support arrears must charge interest at
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the judgment rate. See Code § 20-78.2. Before 1995, "the
general rule [was] that in the absence of factors making it
inequitable, interest should be assessed on unpaid installments
of alimony from the date they mature or become due until the date
they are paid." Alig v. Alig, 220 Va. 80, 85-86, 255 S.E.2d 494,
497-98 (1979) (citation omitted). The General Assembly amended
Code § 20-78.2 effective July 1, 1995, and now the statute states
clearly that interest is due on arrears unless waived. The wife
never waived interest, so the trial court erred when it
disallowed the request for it. The record establishes that the
interest due was $1,112.56 as of the date of the hearing, June
11, 1997.
We reverse the decision and enter final judgment of $16,750
plus interest of $1,112.56.
Reversed and final judgment.
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