Opinion
Record No. 0925-94-2
Decided: December 27, 1994
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY, William R. Shelton, Judge
Affirmed.
(William S. Smithers, Jr.; Anton J. Stelly; Thompson, Smithers, Newman Wade, on brief), for appellant.
(Richard D. Harris, Jr.; Bourdow Bowen, on brief), for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
John O'Shea Dolan (husband) appeals the decision of the circuit court awarding spousal support arrearage to Jo Anne M. Dolan (wife). He raises the following issues on appeal: (1) whether wife's cohabitation with another man terminated husband's obligation to pay spousal support; (2) whether there was sufficient evidence to establish wife had remarried; (3) whether there was sufficient evidence of an agreement between the parties to suspend spousal support; and (4) whether the circuit court abused its discretion in awarding attorney's fees to wife. Wife also appeals the decision of the circuit court denying her request for unpaid child support. Upon reviewing the record and briefs of the parties, we conclude that both appeals are without merit. Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27.
Cohabitation as a Bar to Spousal Support
Under Code Sec. 20-109, "[u]pon the death or remarriage of the spouse receiving support, spousal support shall terminate unless otherwise provided by stipulation or contract." Husband contends that wife cohabitated with another man following the parties' divorce and that the cohabitation terminated his obligation to pay wife spousal support.
This Court has previously noted that "[h]ad the legislature intended misconduct or illicit cohabitation to terminate spousal support, it could have so provided as it did with death and remarriage." Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 452 (1988). Under the terms of the parties' final decree of divorce, husband was required to pay wife $450.00 per month "until the death or remarriage of the [wife]." Therefore, we find no error or abuse of discretion in the trial court's determination that wife's cohabitation did not terminate husband's obligation to pay spousal support.
Sufficiency of the Evidence of Remarriage
Husband next contends that there was sufficient evidence for the court to find wife had remarried. In support thereof, husband introduced into evidence the listing in a 1992 and 1993 community telephone directory of wife and her companion as "Mr. and Mrs. Ernest Nylander." Husband also noted that wife stayed in California with her companion for eight days in September 1991, and that wife admitted she lived with her companion as man and wife after February 1992.
Wife admitted she lived with her companion from February 1992 until September 1992. However, wife testified she had not remarried.
"Virginia does not recognize common-law marriages where the relationship is created in Virginia." Farah v. Farah, 16 Va. App. 329, 334, 429 S.E.2d 626, 629 (1993). No evidence proved that the wife entered into a marriage in Virginia or any other place. The trial court's determination was not plainly wrong and was supported by credible evidence, namely, wife's testimony. Therefore, that finding will not be reversed by this Court on appeal. Yates v. Commonwealth, 4 Va. App. 140, 143, 355 S.E.2d 14, 16 (1987).
Sufficiency of Evidence of Parol Modification
Husband contends that sufficient evidence was introduced to demonstrate that wife agreed to forego spousal support as part of the parties' agreement that husband would have custody of the parties' child. Wife denied any agreement to forego spousal support.
The trial court determined that wife was entitled to $13,130.00 in accrued spousal support under the parties' final decree of divorce. We agree. Parties cannot contractually modify the terms of a support order without the court's approval. Capell v. Capell, 164 Va. 45, 52, 178 S.E. 894, 896 (1935). Moreover, the trial judge had no authority to modify retroactively spousal support as awarded by a decree from the court. See Code Sec. 20-112.
Therefore, the trial court's decision to award wife accrued spousal support arrearage is affirmed.
Award of Attorney's Fees
An award of attorney's fees is a matter submitted to the sound discretion of the trial court and is reviewable on appeal only for an abuse of discretion. Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award of counsel fees is reasonableness under all the circumstances. McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985).
Husband had failed to pay wife any spousal support following the entry of the final decree. Wife is now unemployed. Based on the issues involved and the respective abilities of the parties to pay, we cannot say that the award was unreasonable or that the trial court abused its discretion in making the award.
Denial of Child Support Arrearage
Wife contends the trial court erred when it refused to order father to pay past due child support. Relying upon Acree v. Acree, 2 Va. App. 151, 158, 342 S.E.2d 68, 72 (1986), the trial court ruled that enforcement of the provision of the final decree requiring husband to pay child support "would 'unjustly enrich the [ex-]wife and shock the conscience of the average person.' "
In Acree, this Court carved a narrow exception to the general rule denying a payor credit for nonconforming support payments.
Where . . . the custodial parent has by his or her own volition entered into an agreement to relinquish custody of a permanent basis and has further agreed to the elimination of support payments and such agreement has been fully performed, we hold that the purpose to be served by application of an inflexible rule denying credit for nonconforming payments is outweighed by the equities involved. . . . [T]he purpose of the support decree in this case has been fulfilled.
Acree, 2 Va. App. at 157, 342 S.E.2d at 71. "[A]llowing a payor spouse credit for non-conforming support payments, in the limited situations where permitted, is not a modification of a support order." Virginia Dep't of Social Servs., Div. of Child Support Enforcement v. Skeens, ___ Va. App. ___ ___, 442 S.E.2d 432, 435 (1994).
The final decree required father to pay support to the wife for the parties' child. Uncontroverted evidence established, however, that the parties' child had moved from wife's home to husband's home shortly after entry of the decree. Although wife testified she continued to pay some of her daughter's expenses, the evidence proved father expended for the support of the child, sums in excess of the award while the child lived in his household. We cannot say on review that the trial court's decision to deny mother's request for child support arrearage in this instance was plainly wrong or without evidence to support it.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.