Virginia is for lawyers

(but not divorced fathers!)

Why did the Virginia Division of Child Support Enforcement (DCSE) provide free legal services to my ex-spouse after she was found in contempt of court for her violations of the support agreement? DCSE’s intervention enabled her to keep $10,000 in garnished support overpayments which the court had ordered credited to me. Not only that, it cost me thousands in legal fees to obtain this dismal result!1

harlottesville,Virginia, situated near Monticello, the historic home of Thomas Jefferson, is also the location of the Albemarle County Circuit Courthouse. And it was in this court on December 10, 2001 that a hearing was held and a decision handed down which dealt a devastating blow to divorced fathers in Virginia.2  But first, there’s a bit of necessary background to the story.

Since separating from my ex-spouse in 1992, I’ve spent the past nine-and-a-half years struggling to make ends meet, despite having a good job. I’ve had to make a number of sacrifices in order to maintain the monthly court-ordered child support payments to my ex-spouse, including taking a job across the country away from my kids, and cashing out my retirement funds to keep the payments up-to-date. While my standard of living has declined despite working longer hours, my ex-spouse’s economic standing has continually improved since her remarriage in 1995.

My support payments are calculated according to a separation agreement, a contract drawn up between my ex-spouse and me and incorporated into our divorce decree several years ago. It specifies a recalculation on June 1 of each year, using the com­bined incomes of the parties and the Virginia support guidelines. It is worth noting that my ex-spouse is the only one who has benefited financially from this arrange­ment in the past.

But in June of 1999, when a recalculation stood to benefit me for the first time, my ex-spouse balked and refused to provide the financial information required for a recalculation.

It took two years of negotiation and finally litigation before I was able to get a support recalculation. The Honorable Paul Peatross, in his written ruling of May 31, 2001,3 recalculated support according to the terms of the separation agreement. He awarded me a $12,000 child support overpayment credit, while also finding my ex-spouse in contempt of court for her failure to provide the financial information required for a recalculation.

It cost me over $10,000 in legal fees and other expenses to get enforcement of the contract, which I had to finance through personal loans and credit card advances. I planned to use the $12,000 in credit to pay down my large debt for legal fees as well as the $3,000 in “arrears,” an accounting artifact of not having a support recalculation done since November of 1997.4

In addition to the award of overpayments, the court awarded me legal costs in the amount of $500. This was a very small sum considering the explicit language in the separation agreement stating that expenses incurred in enforcement of the agreement by litigation are the sole responsibility of the non-compliant party5. Perhaps the judge felt that since the prevailing party (me) had won $12,000 in credit for over-payments, there wasn’t a need to award “extra” legal fees on top of it all. Considering what it actually cost me to get enforcement of the agreement, I am very disappointed at what little weight the court gave the contract’s specific provisions for attorney’s fees.

But, all that being said, this is where the story should have ended.

Instead, after the hearing on May 25, 2001 , but before the judge signed an order embodying his May 31, 2001 written ruling, my ex-spouse took a surprising new step: she quit the services of her private attorney in Charlottesville, Mary-Susan Payne, who had previously handled her case. Instead, she enlisted the free legal services of Virginia DCSE in an attempt to get a second trial and overturn the court’s previous rulings in my favor.

It was Drew Swank, a lawyer with the Charlottesville office of DCSE, who took the extraordinary step of filing a pile of new motions and legal briefs in the case6 — essentially trying to overturn the May 31 ruling in its entirety and also trying to legally invalidate the very contract that my ex-spouse had held me to all those years (while it benefited her financially to do so). The gloomy prospect of my having to pay thousands of dollars in new legal fees for a “start from square one” trial loomed very large at this point.

But wait, isn’t the DCSE’s job supposed to be enforcing child support orders issued by the courts, rather than mounting legal challenges to separation agreements already incorporated into divorce decrees or trying to overturn contempt findings against non-compliant custodial parents?

Virginia DCSE’s actions in this case leave the clear and disturbing implication: it’s perfectly fine for custodial parents who violate separation agreements to receive free legal representation from DCSE, at taxpayers’ expense, to mount legal challenges to valid agreements-while divorced fathers must pay thousands in out-of-pocket legal expenses just to get enforcement of those agreements. Isn’t Virginia DCSE over­stepping its bounds here?

As a consequence of DCSE’s intervention in my case, another hearing was held on July 19, 2001 . In a new written ruling, Judge Paul Peatross denied the various motions of DCSE, with one important exception. The court, upon its own motion, in light of a legal brief filed by DCSE, requested still another hearing to determine its own authority to modify support, as it had in its May 31, 2001 written ruling.

Another hearing was finally held on December 10, 2001 . And in a ruling which dealt a devastating blow to divorced fathers in Virginia, the Court reversed its May 31, 2001 ruling and took the position that it now lacked the authority, under Code Section 20-108 of the Code of Virginia of 1950, to order a recalculation as specified in its May 31, 2001 decision.7

So, after being found in contempt of court for violating the separation agreement, my ex-spouse was allowed to keep $10,000 of the support overpayments I had been forced to make through DCSE wage garnishments. In addition, it cost me over $10,000 in legal fees and other expenses just to obtain this dismal result, for a total of $20,000 in out-of-pocket costs!

The court’s interpretation of the statute, its legal “logic” if you will, worked like this: it agreed my ex-spouse signed a legally binding contract (separation agreement), which was later incorporated into our divorce decree. But since I chose to first negotiate with my ex-spouse to seek compliance with the agreement — rather than immediately file a lawsuit against her — I forfeited the right to a recalculation of support for all time prior to the date the lawsuit was filed!

Many questions come to mind in light of the court’s December 10, 2001 decision. Will DCSE now initiate legal reviews of all incorporated separation agreements within the Commonwealth-hoping to secure the “best deal” for their clients, including non-compliant custodial parents? Will the new ruling help to open a floodgate of new litigation in Virginia, brought by divorced fathers who find they must file lawsuits just in order to maintain their legal standing in self-executing separation agreements?

The court’s final ruling not only emboldened my ex-spouse in her open defiance of the rule of law and the courts, but also de facto rewarded her in substantial financial terms for her contempt-of-court. With this result, I couldn’t feel any more powerless than I do now.

Meanwhile, without a new support order from the court, Virginia DCSE continues to garnish my wages for support overpayments, based upon a November 1997 ruling that includes payments to my ex-spouse for our oldest son. He graduated from high school in June 2000, works a full-time job and will celebrate his twentieth birthday this coming June.

Virginia is for lawyers, but not divorced fathers. And the treatment I’ve received as a divorced father and non-custodial parent only serves to highlight the serious flaws and injustices which exist in the child support enforcement policies, court system and laws of the Commonwealth of Virginia.

— Lawrence White 
     February 2002

Lawrence White, divorced father and devoted non-custodial
parent, is a resident of Charlottesville,Virginia  

Contact information: Lawrence White ldw@cstone.net
  

u        u        u
  

fter I wrote my “Virginia is for lawyers” article, another hearing was held on September 24, 2002. I was forced to appear pro se at this hearing because I could no longer afford the services of an attorney to represent me, after having to pay the $20,000 out-of-pocket costs detailed in my earlier article.

The Honorable Paul Peatross, of the Albemarle County Circuit Court, in Charlottesville, Virginia, ruled as follows in my case on October 1, 2002 :

n      Failed to give me any portion of federal child tax credits currently received by my ex-spouse, though I pay 58% of the support for my three minor children under the current Virginia support guidelines.

n      Refused to give me any credit for the 90-plus days per year8 my three children live with me; not one cent for their food, shelter, clothing, school supplies or even gas money to drive them to school during the week.

n      And worst of all — in his support recalculation, Judge Peatross imputed to me the salary from my previous job in San Diego, where the cost-of-living and wages are much higher than in Charlottesville, refusing to use the income figures from my current job in Virginia. I had left a higher-paying job in California solely to be with my children and to give them the support they needed during their teenage years. And the court’s response was to punish me for being “voluntarily underemployed!”

So, after the court recalculated support for only three children, instead of five children, my support payments actually increased $56 per month! I am currently ordered by the court to pay my ex-spouse child support totaling 81% of the net of my monthly pay for the income figures used at trial. This figure does not include additional amounts previously ordered for uninsured medical costs and college tuition for my twenty-year-old son.

Then there is the current DCSE garnishment order, which specifies a monthly support amount equal to 99% of my net disposable income each month, using the income figures presented at trial. However, because the maximum amount of child support that may actually be garnished under Virginia law is “only” 65% of my monthly net, this leaves me with about $485 a month with which to provide for my wife, three children (when they are living with me) and myself, again using the income figures presented at trial. This amount for basic living expenses is well below the Federal Poverty Thresholds for 2002.

Furthermore, since the DCSE garnishment order can seize “only” 65% of my net income each month, I will build-up arrears at a rate of 16% of my net income per month! It doesn’t take a mathematician to see I will become a “deadbeat dad” beginning with the very first month I make support payments under the current order. Meanwhile, my ex-spouse, who remarried several years ago, lives in a household that reported an income of over $100,000 for the 2001 tax year.

I think it is clear from the latest ruling that the court, when it calculated the new amount of the monthly support payments to my ex-spouse, did not give any consideration to my financial ability as a natural parent to provide a home for my children. This prompts the question: if the child support system in Virginia is really about the “best interests of the children,” then why don’t the courts and the DCSE care about the quality of the home in which the children must live when they are in the care of the non-custodial parent?

I find it inconceivable, in a democratic society, that it has been possible for so many divorced fathers in the United States, as a matter of law and public policy, to have lost their rightful parental access to their children.  They must endure drastically curtailed time with their children, post-divorce, by virtue of the “visitation” ordered by the courts, while they are also financially indentured to the custodial parent, often for decades.  At the same time, they are effortlessly criminalized and incarcerated by the family and local courts because they are unable to pay excessively high child support awards to the custodial parent — support amounts which have neither a sound economic nor mathematical basis as their justification.

And finally, the harsh and punitive collection tactics of the state child support enforcement agencies all but guarantee the destruction of the family (yes, family) and home that the non-custodial parent is attempting to provide for the children. But, neither the unjust decisions of the Virginia courts nor the punishing garnishments of the DCSE will ever drive me out my children’s lives. Someday, we may even see the day when the courts and agencies responsible for this wholesale destruction of families, and the infliction of so much pain and hardship upon divorced fathers and the children of divorce, are held accountable for their decisions and policies in the court of public opinion.

Fundamental political and legal changes will have to take place in this country in order to reform the present irrational system of child support, visitation, custody and paternity. And all the children of divorce must be given what is their birthright: the opportunity to receive the love, support and nurturing of both their parents.

— Lawrence White 
     February 2003  

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