In the 2022 unpublished Virginia Court of Appeals case of Le v. Le, the parties had one child from the marriage. The parties’ Marital Separation Agreement (“MSA”) stated that the mother would have primary custody of the child and required the father to pay child support. In August of 2015, the child went to live with the father, with the mother’s consent, until January of 2018. At trial, the court held that the father had a child support arrearage of $89,363. The father claimed that he should have a $54,000 child support credit for nonconforming child support payments when the child was living with him. The trial court denied the father’s claim for a child support credit and the father appealed to the Court of Appeals of Virginia.
The issue on appeal was whether the trial court erred when it denied the father’s request for a child support credit based on nonconforming payments when the child was living with him.
The Court of Appeals noted that there are two exceptions to the statutory limitations on retroactive modification of past due child support payments. The first exception allows a credit for nonconforming child support payments when there is: (1) an agreement by the parties which modifies the terms or methods of payments; and (2) no adverse effect on the support award. The second exception allows a credit where the custodial parent has agreed to relinquish custody on a permanent basis to the other parent. On appeal, the father relied on the second exception. The court found that the mother did not relinquish custody on a permanent basis since the child moved back in with the mother in January of 2018. Therefore, the Court of Appeals held that the father failed to satisfy the requirement that the change in custody was permanent and therefore, he was not entitled to a credit in child support.