                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Elder
Argued at Alexandria, Virginia


LAURA B. CARVER
                                       MEMORANDUM OPINION * BY
v.   Record No. 2189-97-4        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                            MAY 5, 1998
DONALD LEE CARVER, JR.


           FROM THE CIRCUIT COURT OF FREDERICK COUNTY
                      James L. Berry, Judge
          E. Eugene Gunter for appellant.

          No brief or argument for appellee.



     Laura B. Carver (mother) appeals the trial court's order

requiring that she reimburse child support payments Donald Lee

Carver, Jr. (father) paid to her for a time period when he had

physical custody of the child.   She contends the effective result

of the order is a retroactive termination of father's support

obligation that is contrary to the requirements of Code § 20-108.

Finding no error, we affirm.

                                 I.

     Father and mother were married June 28, 1980, and one child

was born of the marriage on May 10, 1981.   The parties were

divorced November 19, 1992.    The divorce decree granted sole

custody to mother and ordered father to pay $100 per week in

child support commencing October 9, 1992.   In June 1995, by

mutual agreement, the child began living with father, and he
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
stopped paying child support at that time.   Father testified that

when the parties met on June 18, 1995 to transfer physical

custody, they discussed support but executed no written

agreement.   The essence of the conversation was that mother

"would pay what she could - Thirty Dollars ($30.00) or so per

week."

     Father took no action to legally modify the terms of the

divorce decree until October 11, 1996, when he filed a petition

to change the existing court order in the Frederick County

Juvenile and Domestic Relations District Court (JDR court).

Notice of the petition for modification was provided to mother on

October 16, 1996.   In his petition, father asserted that the

child had adjusted well to the current living situation with him

in Winchester and that he wanted custody changed to avoid the

anxiety associated with mother's threat to remove the child from

father's home without warning.   By order entered March 6, 1997,

the JDR court ordered joint legal custody, awarded physical

custody to father, and terminated father's support obligation as

of July 1, 1995.    Mother appealed the JDR court's termination of

father's support obligation.
     On appeal, the trial court found that the JDR court order

was a modification order under Code § 20-108 which could not

terminate father's support obligation retroactively.

Consequently, the trial court found that father was required to

have made the child support payments of $100 per week for the




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period from July 1, 1995, when he ceased making payments, through

October 16, 1996, when mother was notified of the pending

modification petition.   However, "as a matter of equity" the

trial court ordered mother to "pay the child support payments for

the period indicated back to [father] on the basis that he was

the physical custodian of the child during the said period."

Mother's motions to reconsider and suspend the final decree were

denied. 1

                                II.

     Mother contends the trial court's order that she reimburse

the accrued child support payments was a "back door" attempt to

relieve father of his delinquency status.   She argues that, as a

matter of law, the trial court was without the authority to

terminate father's support obligations prior to October 16, 1996,

the date mother was notified of the petition for modification.

     Code § 20-108 provides, in part:
          No support order may be retroactively
          modified, but may be modified with respect to
          any period during which there is a pending
          petition for modification, but only from the
          date that notice of such petition has been
          given to the responding party.


"Past due support installments become vested as they accrue and

are thereafter immune from change.    Parties cannot contractually

     1
      After Judge Berry heard the trial, he was succeeded by
Judge John R. Prosser, who entered the order embodying Judge
Berry's decision. Judge Prosser subsequently denied mother's
motion to reconsider on the grounds that he "would not reconsider
a decision made by his predecessor Judge."



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modify the terms of a support order without the court's

approval."   Goodpasture v. Goodpasture, 7 Va. App. 55, 58, 371

S.E.2d 845, 847 (1988).   "Should circumstances change requiring

alteration in the amount of support, a party's remedy is to apply

to the court for relief."   Id. (citing Newton v. Newton, 202 Va.

515, 519, 118 S.E.2d 656, 659 (1961)).   A court may not

retroactively modify a child support obligation.   See Code

§ 20-108; Wilderman v. Wilderman, 25 Va. App. 500, 489 S.E.2d 701

(1997).
     However, in Acree v. Acree, 2 Va. App. 151, 342 S.E.2d 68

(1986), this Court created an "exception to the general rule of

nonretroactive modification."   Goodpasture, 7 Va. App. at 59, 371

S.E.2d at 847.   This case is analogous to the situation in Acree

and is controlled by this rationale.
          The cases that apply a seemingly inflexible
          rule denying credit for nonconforming support
          payments involve expenditures made during
          short visits or vacations, gifts, clothing,
          or direct payments in cash to the child,
          payments to an educational institution for
          the child's benefit, and overpayments made to
          the wife. The rationale for denying relief
          under those circumstances has been the
          avoidance of continuous trouble and turmoil.
           In each of the instances cited, to grant
          relief would result in some detriment to the
          custodial parent and child for whose benefit
          the support was to be paid.

Acree, 2 Va. App. at 157, 342 S.E.2d at 71.   Upon finding that

the father's "undisputed agreement with his wife, whereby he

assumed permanent custody and total responsibility for the

support of [the child], had the effect of fully satisfying his



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support obligation under the divorce decree," id. at 156, 342

S.E.2d at 70, this Court held that
          [t]o enforce the letter of the decree after
          its purpose has been served and the parties'
          agreement fully performed would unjustly
          enrich the wife and shock the conscience of
          the average person. Most important, failure
          to enforce the letter of this decree under
          these circumstances will not work to the
          detriment of the child, for whose benefit the
          support was to be paid. The agreement of the
          parties as carried out worked to the benefit
          of the child to the same degree that absolute
          conformity with the terms of the decree would
          have.

Id. at 158, 342 S.E.2d at 72.

     As a result, and contrary to wife's contention,
          [a] court may, when equitable and under
          limited circumstances, allow a party credit
          for non-conforming support payments, provided
          that the non-conforming payment substantially
          satisfies the purpose and function of the
          support award and to do so does not vary the
          support award.


Commonwealth v. Skeens, 18 Va. App. 154, 158, 442 S.E.2d 432, 435

(1994).   The trial court has "discretion to grant credit, in

whole or in part, or to deny credit against an arrearage,

depending upon the circumstances" and in light of "the equities

of a given situation."   Id. at 160, 442 S.E.2d at 436.

     In the instant case, while mother disputes the existence of

an agreement for a permanent change, the parties fully complied

with the change in physical custody for the time at issue - a

period at the time of the hearing in excess of fifteen months.

The resulting arrangement, that father "assum[ed] physical




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custody and total responsibility for the support of the child,"

fulfilled his obligation under the decree.    Acree, 2 Va. App. at

158, 342 S.E.2d at 72.    Thus the trial court had discretion to

exercise its equity power and to credit father for his

nonconforming payments.   The court ordered father to pay support

and ordered mother to pay it back, an implicit means of crediting

father for his expenditures in support of the child in his

custody.   These orders achieved a result that was within the

court's discretionary use of its equity power.
     Finding no error, we affirm.

                                                         Affirmed.




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