Shoup v. Shoup
A recent decision by the Court of Appeals in the Shoup case provides important guidance to family mediators. In this case, the parties, who had three minor children, were divorced on September 1, 1994. The final divorce decree incorporated the parties' Custody, Support and Property Settlement Agreement. The agreement included a provision that permitted modification of child support upon emancipation of each of the parties' children according to a standard set forth in the agreement.
In accordance with the parties' agreement, the final decree ordered the father to pay $2,177 per month in child support to the mother. In 1995, when the first child turned eighteen, the father unilaterally reduced the amount of support by approximately one-third. In 1997, when the second child reached eighteen, the father again unilaterally reduced the amount of support by approximately another one-third. The record shows that the mother did not object to these reductions until she filed suit in 1999 to collect the arrearages.
In its opinion dated October 30, 1999, the trial court found the father to be in contempt of court and found that he was in arrears in his support payments from 1995 - 1999 because a support order may not be retroactively modified by the parties or without court approval. On February 27, 2001, a divided panel of the Court of Appeals affirmed the trial court's ruling that the provision permitting modification of child support upon emancipation of each of the parties' children was void and unenforceable. The Panel also reversed the trial court's enforcement of a provision permitting modification upon changes in child care expenses and found father in contempt and liable to mother for arrearages of $33,838.20 plus interest and attorneys fees. This decision had raised concerns in the mediation community that mediated agreements dealing with future contingencies for child support might be ineffectual and that parties would have to go back to court whenever child support was to change.
The Court of Appeals granted the father's petition for a rehearing en banc. Father raised a number of issues for determination, including whether the final decree which incorporated the parties' agreement, including the provisions for future modification of child support, should have been upheld. Mother argued that the child support modification provisions did not authorize modification of child support payments without court approval and that a provision purporting to do so would inappropriately undermine the authority of the court to set child support awards.
This case is significant as it considers the fundamental principles of Virginia divorce law regarding a court's jurisdiction to determine child support and the rights of the parties to resolve these issues by agreement. Under Virginia law, divorce and its incidents are matters of state public policy. At the same time, divorcing parents are encouraged to reach agreement regarding the care and support of their minor children.
Judge Annunziata, writing for the Court noted that, where the court affirms and incorporates such an agreement into its divorce decree, in whole or in part, it has necessarily exercised the discretion granted to it under the Code and determined that the agreement is in the best interests of the child. Furthermore, while a court may not make an award prospectively, nothing in case law invalidates a decretal provision reflecting the parties' agreement to address and make future modifications of support as circumstances change. The Court emphasized three limitations on the parties' right to contract regarding child support, which mediators should keep in mind:
- The court must review the provisions of the agreement for their consistency with the best interests of the child or children whose welfare the agreement addresses.
- The parties may not by agreement prevent the court from exercising its power to change, modify, or enforce its decree concerning the custody and maintenance of minor children.
- The parties cannot eliminate by contract a parent's duty to support a child.
The Court concluded that parties' agreement addressing child support and the decretal terms did not contravene public policy. Instead, the agreement actually fosters the public policy favoring the amicable resolution of child support issues. The Court of Appeals found the divorce decree's provisions for future modification by agreement of the parties valid and enforceable, held that the trial court erred in its calculation of arrearages and in finding the father in contempt of its support order and held that the trial court properly enforced the provision for modification upon a change in child-care costs. The Court remanded the matter to the trial court for 1) reconsideration of whether father followed the provisions of the incorporated agreement when reducing the amount of support; 2) recalculation of arrearages, if any, and 3) reconsideration of its contempt finding.
For family mediators, this case affirms the public policy in favor of parties resolving matters amicably and supports the efforts of mediators in assisting parties to reach a mutually acceptable resolution in domestic disputes.
It also provides mediators some assurance that parties can reach agreements regarding future contingencies related to child support and have confidence that such agreements can be self-executing, without the parties having to return to court. It would serve the mediator and the parties well in drafting such agreements, to describe the events triggering adjustment and the terms of adjustment as clearly as possible so that a court can determine that a future self-executing adjustment to child support is in a child's best interest. To access the full decision, go to www.courts.state.va.us.
This page last modified: October 18, 2002