Opinion
Record No. 0560-92-1
August 3, 1993
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH L. CLEAVES MANNING, JUDGE.
William S. Moore, Jr., for appellant.
William H. Oast, III (Oast, Hook Crowe, on brief), for appellee.
Present: Judges Baker, Willis and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The judgment of the trial court is affirmed.
The parties were divorced November 12, 1956. Mr. Woodard was ordered to pay Ms. Greenberg $10 per week for the support of their minor child. The parties agree that this obligation ended July 1, 1972. Against this entire obligation, Woodard paid only $60.
On June 10, 1991, Ms. Greenberg petitioned the trial court to hold Woodard in contempt for non-payment of the ordered support and to award her judgment against him for the accrued arrearage. The trial court awarded her judgment in the sum of $8,640 ($10 per week from November 12, 1956 to July 1, 1972, less $60 paid).
Woodard first contends that the trial court erred in overruling his plea of the statute of limitations. Code § 8.01-251 provides, in pertinent part:
A. No execution shall be issued and no action brought on a judgment . . . after twenty years from the date of such judgment. . . .
This issue is controlled by our decision in Bennett v. Commonwealth, 15 Va. App. 135, 422 S.E.2d 458 (1992), wherein we said:
When . . . a spousal support order is initially entered, it establishes the monetary amount of an ongoing support obligation. . . . It is not, and cannot be, a judgment for a sum certain or liquidated amount of money. . . . [B]ecause such a spousal support order is ongoing and unliquidated, it is essentially different from a money judgment, which adjudicates a sum certain due and owing.
* * * *
When the obligor spouse fails to perform under the terms of the spousal support order, the court has the inherent authority to enforce its order by rendering a judgment in favor of the obligee spouse for the liquidated amount of the accumulated arrearages. Because of the ongoing nature of a spousal support order, no time limitation is placed upon the obligee spouse within which to obtain a judgment for accumulated arrearages. . . . Thus, . . . an obligee spouse under a Virginia spousal support order may delay for years without limit before seeking a judgment for arrearages accumulated under that order. It is only once such a judgment for a sum certain is obtained that Code § 8.01-251 [applies].
Id. at 141-42, 144, 422 S.E.2d at 462-63. The same underlying principles, and hence the same rule, apply to child support orders. Therefore, the accrued arrearage presented to the trial court by the June 10, 1991 petition was not subject to the limitation of Code § 8.01-251 until the amount of that arrearage was determined and a money judgment was entered.
Woodard next contends that Ms. Greenberg failed to present clear and convincing evidence proving a child support arrearage. He asserts the wrong standard of proof. Ms. Greenberg was required to prove her claim only by a preponderance of the evidence. Her testimony carried this burden. The trial court's finding that a support arrearage existed was supported by credible evidence. Its findings as to the credibility of the witnesses and the weight to be given their evidence will not be disturbed. Yates v. Commonwealth, 4 Va. App. 140, 143, 355 S.E.2d 14, 15 (1987).
The judgment of the trial court is affirmed.
Affirmed.