11.4 Modification

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2018 Ed.)

11.4 MODIFICATION

11.401 Jurisdiction to Modify Orders. Courts have jurisdiction to modify their prior orders or decrees concerning issues of spousal support, child support, and child custody and visitation. ⁹⁰ A circuit court may transfer issues concerning modification of its order to a juvenile and domestic relations district court following the procedures set forth in section 20-79(c) of the Virginia Code. ⁹¹ If the request is made before entry of a final decree, the circuit court may transfer the case upon the motion of both parties. If the request is made after entry of a final decree, the circuit court may transfer the case for modification of an order upon motion of either party. Moreover, when transferring a case pursuant to section 20-79, the circuit court may transfer the case to a different venue if there is good cause that the different venue would be a "more appropriate forum." This applies both to transfers to another circuit court or to a juvenile and domestic relations district court. The circuit court may determine that transfer is proper upon the motion of any party or on its own motion. ⁹² The court may not require that the parties agree to inclusion of a provision for transfer of matters for modification to the juvenile court as a condition of the entry of a final divorce decree. ⁹³

11.402 Child Custody and Visitation. The party seeking a modification must allege and prove that the circumstances have changed so that the best interests of the child require a change in the terms of the prior order or decree. ⁹⁴ A wide variety of circumstances might lead a court to consider modification of its decree. Remarriage and divorce were considered as a basis for modification in Florance v. Florance⁹⁵ and Turner v. Turner. ⁹⁶ A substantial change in employment—the release from military service—was considered

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in Collins v. Collins. ⁹⁷ The intended relocation of a parent can be a sufficient basis for modification but only when the move will benefit the child. ⁹⁸ There are many other circumstances that may lead a court to consider modifying its prior decree. An expedited hearing must be provided when a parent in the National Guard or Reserves has been called to active duty. ⁹⁹

A change of custody must be based on the best interests of the child and cannot be used to punish a parent. ¹⁰⁰ But the intentional withholding of visitation of a child from the other parent without just cause may constitute a material change of circumstances justifying a change of custody. ¹⁰¹

11.403 Child Support. A court may modify a prior order or decree awarding child support. ¹⁰² The court is not bound by the relief requested by the petitioner and, on its own, may increase or decrease what it has awarded if supported by the evidence. ¹⁰³ If the order was entered by a circuit court incident to a suit for divorce or separate maintenance, the court retains continuing jurisdiction to modify its order during the child's minority. ¹⁰⁴ Parties may agree to extend their child support obligations beyond the child's minority, for example by agreeing to pay the expenses of a college education. However, "[o]nce 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." ¹⁰⁵ Whether agreed upon post-minority support may be modified by the court depends on whether the agreement allows for modification. ¹⁰⁶ A child support order may not be retroactively modified, but it may be modified for any period during which

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there is a pending petition for modification from the date that notice of the petition was given to the responding party. ¹⁰⁷

A material change in the financial circumstances of one or both parents will support a modification of a prior child support order. For example, if the financial circumstances of the custodial parent decline, the court might award more child support to that custodial parent. On the other hand, if the financial circumstances of that custodial parent improve, the child support award might be modified downward. A substantial increase in the income of the noncustodial parent may also justify a modification of a previous child support order. ¹⁰⁸ Where a party's income fluctuates over a period of years, the court should use the party's actual, current gross income at the time of the hearing in completing the appropriate child support guidelines worksheet. After determining the presumptive amount of support according to the schedule, the court may consider other factors, such as earning capacity shown by a party's average income over a period of several years, in determining whether to adjust the presumptive amount of child support. ¹⁰⁹ Unique factors also may be considered in determining whether modification is warranted, such as a history of irregular and unreliable payments. ¹¹⁰

The party seeking to modify the child custody order bears the burden of proving the change in financial circumstances by a preponderance of the evidence. In addition to meeting the burden of showing a change in financial circumstances, the party seeking a reduction in support payments must make a full and clear disclosure regarding the party's ability to pay. In addition, the party must show that the inability to pay is not due to the party's own voluntary act or neglect. ¹¹¹ A parent who undertakes a new business venture while under a court-ordered duty to support a child bears the risk of a possible failure, and the decision will be evaluated with consideration of the parent's good faith and the reasonableness of the decision. ¹¹² Voluntary

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unemployment is not an absolute bar to judicial adjustment of child support if other material changes and circumstances have occurred that are not the fault of the moving party. Voluntary unemployment is only one of several factors to be considered. ¹¹³

While a support order cannot be retroactively modified, its effective date may be set to any date during which there was a pending petition for modification, but only from the date that notice of the petition was given to the responding party. ¹¹⁴ The court has some discretion in setting the effective date of a modified child support obligation and may choose to make it effective on the date of the hearing. ¹¹⁵

Where parties have reached an agreement and the court affirms, ratifies, and incorporates the agreement by reference into its decree, the agreement does not divest the court of jurisdiction to modify a child support award. Where a request to modify is made, the court will consider the party's agreement as it relates to the factors of section 20-108.1, and the agreement may be used to rebut the guidelines amount. ¹¹⁶ The court may confirm an agreement of the parties that extends a support obligation beyond when it would otherwise terminate as provided by law. ¹¹⁷ The parents cannot contract away their children's rights to support, nor can the court be precluded by agreement from exercising its power to decree child support. ¹¹⁸ Additionally, the parties cannot modify a court-ordered support obligation—even one based on an agreement—merely by entering into a new agreement. The appropriate remedy is for the parties to petition the court to modify its previous order. ¹¹⁹

Some agreements concerning child support contain terms providing for automatic future modification of the obligation upon the occurrence of certain

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circumstances without the need to petition the court to modify its previous order. If such an agreement has been affirmed, ratified, and incorporated into a court order, its terms are valid and enforceable. Unless otherwise provided for in the agreement or order, future modifications do not require a subsequent court order. ¹²⁰

11.404 Spousal Support. Upon petition of either party, the court may increase, decrease, or terminate the amount or duration of any spousal support award. ¹²¹ The court may modify a spousal support and maintenance award regardless of when the award was made. ¹²² The party seeking modification must show a change in circumstances justifying the modification. The payor spouse's voluntary full retirement is considered a...