Summary
holding that a court has authority to correct "ministerial omissions nunc pro tunc when the record clearly supports such corrections"
Summary of this case from Palmer v. CommonwealthOpinion
43900 Record No. 780070.
December 28, 1979
Present: All the Justices.
Jurisdiction of Court to modify child support agreement contained in divorce decree does not continue after child attains majority.
(1) Domestic Relations — Child Support — Jurisdiction of Court to order Increases and Decreases in Support Payments during Minority of Child.
(2) Domestic Relations — Child Support — Pleading and Practice — Court Can Correct Ministerial Error in Failing to Prepare Order Nunc Pro Tunc.
(3) Domestic Relations — Child Support — Parent Can Contract to Support Child After Attains Majority — Contract After Child Attains Majority can be Modified to Extent of Jurisdiction of Court when Contract Incorporated in Decree.
(4) Domestic Relations — Child Support — Statutory Jurisdiction of Court Extends only to Minority of Child — Court Cannot Modify Contractual Payments Incorporated in Decree After Child Attains Majority.
A child support agreement incorporated in a divorce decree obligated the father to pay $25 per week until modified by a court of competent jurisdiction or until the last of two children left the mother's home or completed his or her education through the undergraduate level whichever first occurred. There were two children at the time of the divorce, one 18, the other 12. In March, 1974 when the youngest was 16, the Court increased the father's support payments to $50 but reduced this in September. 1974 to $35. No decree was prepared reflecting this decision. The youngest child became 18 in March, 1976. In 1977, the mother alleged the father was in arrears in payments. Over the father's objection to jurisdiction, the Chancellor entered an order nunc pro tunc as of 11 September 1974 reducing the weekly support payments to $35 and providing these would continue to be paid in conformity with the prior opinions of the Court. Thereafter, the father not complying with the decree, the Chancellor awarded judgment against the father for arrears of $945 and ordered the father to keep the payments current. The father appeals, raising the question whether the Chancellor retained jurisdiction after the child attained his majority to enforce a court order entered during the child's infancy to modify a child support agreement incorporated in the divorce decree.
1. The divorce court. having continuing jurisdiction to provide for a child's support during infancy, has power to order an increase in payments for the support of a minor in March, 1974, and to order a reduction in payments for the minor in September, 1974.
2. Although there was no court order to reduce payments in September, 1974, through the oversight of counsel, this omission is not fatal, the court having power to correct such ministerial omissions nunc pro tunc when the record clearly supports correction.
3. While a parent is legally obligated to support a child only during minority, the parent can contract to support the child thereafter; and when such contracts are incorporated into support decrees, these contracts can be modified only to the extent of the jurisdiction of the court.
4. The jurisdiction of a court to provide for child support pursuant to a divorce is purely statutory, and these statutes (Code Sections 20-103 through -109.1) deal only with the support of minor children. When the child reaches his majority, the court's jurisdiction terminates unless otherwise provided by agreement incorporated into the divorce decree. Since here the agreement provided for $25 per week payments, the Chancellor erred in requiring the parent to pay $35 per week after the child attained his majority.
Appeal from a judgment of the Circuit Court of Washington County. Hon. Wayne L. Bell, judge presiding.
Reversed and remanded.
Charles B. Flannagan, II (Woodward, Miles Flannagan, on brief), for appellant.
David H. Frackelton (Widener and Frackelton, on brief), for appellee.
No brief or argument for Washington County National Bank, Trustee under the will of Dollie Kinser Tasker, and Arthur Faulks, appellees.
In this appeal, the question presented is whether the divorce court retained jurisdiction, after a child attained majority, to enforce a court order entered during the infancy of the child modifying a child support agreement incorporated into the decree of divorce.
The facts are not in dispute. Elena Ray Cutshaw was granted a divorce from David Clark Cutshaw by decree dated December 22, 1970, that affirmed, ratified and incorporated therein a separation agreement concluded by the parties. The agreement required Cutshaw to pay $25 per week for the support of his two children "until modified by a court of competent jurisdiction or until such time as the last of the two children leaves the home provided by [Elena], or until the last of said children shall complete his or her education through the undergraduate level whichever first occurs". The couple had two children at the time of their divorce, David Randall, then age 18, and Robin Kirby, then age 12.
On March 27, 1974, the chancellor increased Cutshaw's weekly support obligation to $50, and this amount was provided only for the benefit of Robin Kirby, who was then age 16. The following September, Cutshaw petitioned the court for a reduction in the amount of support payments. In his letter opinion of September 19, 1974, the chancellor "conclude[d] that it would be equitable . . . to reduce the weekly payments to $35 a week for the support, education, and maintenance of the youngest son". The chancellor also requested counsel to prepare a decree reflecting his decision, but no decree was entered.
Robin Kirby became eighteen years of age on March 26, 1976. Almost a year later, on February 25, 1977, Elena petitioned the court for general relief, alleging that Cutshaw was in arrears in his child support payments. Although no responsive pleading was filed, the chancellor stated in his letter opinion of March 9, 1977, that Cutshaw had defended on the ground that the court did not have jurisdiction since both children had attained majority. In the decree entered on March 30, 1977, over Cutshaw's objection, the chancellor noted the absence of a decree implementing the September 19, 1974 decision and entered an order nunc pro tunc as of September 11, 1974, reducing his weekly support payments to $35 from the $50 obligation payable under the March 27, 1974 decree. The decree provided that the $35 payment should continue to be made "in conformity with the prior opinions of this Court".
In July, 1977, Elena again petitioned the court for relief, alleging that Cutshaw had not complied with the March 30, 1977 decree, and that he had become a resident of Tennessee. After conducting an ore tenus hearing, the chancellor found that Cutshaw had not met his obligation to pay $35 per week in child support. By decree entered October 12, 1977, he awarded Elena judgment against Cutshaw in the sum of $945, the amount of arrearages, and ordered Cutshaw to keep the weekly payments current. Cutshaw has appealed from this decree.
[1-2] A divorce court has continuing jurisdiction during a child's infancy to provide for his support and maintenance. Va. Code Sec. 20-108. Since Robin Kirby was still a minor in 1974, the court then had the power to order an increase in payments for his support to $50 per week, and subsequently to order a reduction in payments to $35 per week. Absence of an order embodying the September 1974 decision is not fatal, for the chancellor's opinion clearly shows that the decision had been made to reduce payments to $35. The failure of counsel to prepare the requested order was termed an "oversight". A court has the power to correct such ministerial omissions nunc pro tunc when the record clearly supports such corrections. Va. Code Sec. 8.01-428(b); Council v. Commonwealth, 198 Va. 288, 94 S.E.2d 245 (1956).
Cutshaw concedes that his contractual obligation to pay child support in the amount of $25 per week continues although Robin Kirby has reached the age of majority. He argues only that the divorce court lacks jurisdiction to enforce the support obligation, as modified by the court, in the amount of $35 per week, after the child's 18th birthday. We agree.
A parent has the legal obligation to support his children only during their minority. Va. Code Sec. 20-61. Of course, this obligation does not preclude the parent from contracting to support the children after their minority. However, where such contracts are incorporated into support decrees by a divorce court, they can only be modified by that court to the extent of its jurisdiction.
The jurisdiction of a court to provide for child support pursuant to a divorce is purely statutory. Jackson v. Jackson, 211 Va. 718, 719, 180 S.E.2d 500 (1971). The relevant statutes only deal with the court's power to provide for support and maintenance of minor children. See Va. Code Sections 20-103 through -109.1. Once the child reaches majority, the jurisdiction of the divorce court to provide for his support and maintenance terminates unless otherwise provided by agreement incorporated into the divorce decree. See Eaton v. Eaton, 215 Va. 824, 213 S.E.2d 789 (1975); Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974).
Applying the foregoing principles to the case at bar, we hold that the chancellor erred in determining that Cutshaw's obligation under the decree to pay $35 per week continued after March 26, 1976, Robin Kirby's 18th birthday. Therefore, we shall remand the case for a determination, in accordance with the views expressed herein, of the amount of the arrearages owed by Cutshaw and a recomputation of the amount of the judgment lien docketed in favor of Elena.
Reversed and remanded.