                    COURT OF APPEALS OF VIRGINIA


Present: Judge Bray, Senior Judges Duff and Overton
Argued at Alexandria, Virginia


JULIA MARIE BEACH
                                          MEMORANDUM OPINION * BY
v.   Record No. 0808-98-4                    NELSON T. OVERTON
                                               APRIL 27, 1999
RICHARD JEROME KURTZ


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                    J. Howe Brown, Jr., Judge

          James A. Watson, II (Surovell, Jackson,
          Colten, Dugan, P.C., on briefs), for
          appellant.

          Sandra L. Havrilak (Marlene M. Hahn; Hicks &
          Havrilak, on brief), for appellee.


     Julia Marie Beach (mother) appeals the decision of the

circuit court refusing her motion for increased monthly child

support payable from Richard Jerome Kurtz (father).     On appeal,

mother contends that the trial court erred in finding that there

was no material change in circumstances warranting a change in

child support.   Mother contends that the trial court (1) abused

its discretion by concluding that there was no change in

circumstances although mother's expenses and time with the child

had significantly increased while father's expenses had

significantly decreased since entry of the final decree; (2)


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
failed to consider the child's best interests; and (3) erred by

not finding that the parties' agreement was void.   We affirm the

decision of the trial court.

     The parties, both attorneys, separated in 1993.     They had

one child, born in 1991.   On September 20, 1993, the parties

executed a Separation and Property Settlement Agreement which

set out, among other provisions, their detailed agreement

concerning child support and custody.   The parties agreed to

share joint legal and physical custody of their child until she

began school, and then to establish a new physical custody

schedule when the child started kindergarten.   The parties also

agreed to calculate child support based upon their child's

actual expenses, rather than the statutory guidelines; to adjust

the child support automatically in ways set out in the

agreement; and to base their respective support payments upon

their proportionate share of the joint total income.   By express

language, "[i]n no event shall a voluntary cessation of

employment relieve the unemployed Party from their child support

obligations."   The agreement was incorporated into the parties'

final decree of divorce entered May 30, 1995.

     Each party filed a motion to modify the parenting schedule

shortly before the child began kindergarten.    By order enter

September 12, 1997, the trial court awarded mother physical

custody of the child during the school year and father physical



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custody during the summer.   The court reserved its decision on a

modification of support.   Following an ore tenus hearing, the

trial court ruled that there was no material change of

circumstances warranting a modification of support.   Mother

appealed.

                  Material Change in Circumstances

      As the party seeking to modify child support, mother was

required to prove that there had been a material change in

circumstances since the court's last support order and that the

change justified a modification in support.    See Yohay v. Ryan,

4 Va. App. 559, 566, 359 S.E.2d 320, 324 (1987).

            A material change in circumstances, standing
            alone, does not provide a basis for the
            trial court to modify its support decree. A
            modification is appropriate only after the
            court has considered the material change in
            circumstances in relation to the factors set
            forth in Code § 20-108, namely, the present
            circumstances of both parties and the
            benefit of the children.

Id.   "Code § 20-108 gives the divorce court continuing

jurisdiction to change or modify its decree concerning the

custody and maintenance of minor children, and a contract

between husband and wife cannot prevent the court from

exercising this power."    Featherstone v. Brooks, 220 Va. 443,

446, 258 S.E.2d 513, 515 (1979).   Contracts between parents that

purport to waive the child's right to support and to limit a

court from exercising its jurisdiction over child support are



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void ab initio.     See Kelley v. Kelley, 248 Va. 295, 298, 449

S.E.2d 55, 56 (1994).

     Mother contends that the trial court failed to conduct a

proper review because it erred in finding that she failed to

establish a material change in circumstances.    Mother's

contention is refuted by the trial court's order, which sets out

the trial court's findings.    Specifically, we disagree with

mother that the trial court failed to find a change in

circumstances.    In its order, the trial court found:

          It further appearing to the court that there
          has not been any change in circumstances
          justifying a change in support from that
          contemplated in the Property Settlement
          Agreement, which support was incorporated
          into the Final Decree of Divorce entered on
          May 30, 1995.

(Emphasis added.)    The trial court found that the changed

circumstances included mother's voluntary unemployment without

legal justification.    The trial court then noted:

          It further appearing to the court that the
          provisions for the benefit of the child
          incorporated into the Property Settlement
          Agreement were complex and interrelated and
          served the best interest of the child and
          that to upset the balance which includes
          many items for the benefit of the child that
          might not otherwise be there such as college
          expense and insurance, because one party
          chooses to quit working is improper.

     It is apparent from the trial court's order that it found

that the parties' circumstances had changed but that those




                                  -4-
changes, specifically mother's change in employment status, did

not warrant a modification in support.    The trial court

calculated the presumptive amount of child support under the

statutory guidelines but found that, in light of the agreement

which "was heavily negotiated by the parties, both knowledgeable

attorneys, and was done in the best interest of the child that

application of the presumptive child support guideline amount

continues to be unjust and inappropriate in this case."     See

Code § 20-108.1(B).

       The circumstances had changed since the time the agreement

was incorporated into the final decree.   Mother voluntarily

stopped working, leaving a position which paid $5,512 a month. 1

The physical custody schedule had been modified to accommodate

the child's entry into elementary school, so that mother had the

child a greater portion of the year.    While the parties no

longer had child care expenses, which father had paid, mother

testified that the child's monthly expenses remained $1,200,

which was the same figure estimated at the time the parties

entered into their support agreement.

       Changes in circumstances were expressly considered by the

parties at the time they entered into their comprehensive


   1
     Wife's promotion was effective before she actually separated
from her employment, but she never received a paycheck reflecting
that promotion.




                                 -5-
property settlement agreement.   They recognized the likelihood

of future changes in their respective incomes and the child's

expenses.   They provided a means by which actual expenses would

be proportionately distributed, based on the occurrence of

certain specific events or on a variation in the actual physical

custody.    They expressly and repeatedly indicated their belief

that it was in the child's best interests that support be based

upon the child's actual expenses rather than the presumptive

guideline amount.   Therefore, we find mother's contention that

the trial court abused its discretion in failing to find a

material change in circumstances to be without merit.

                     Best Interests of the Child

     Mother also contends that the trial court failed to

consider the best interests of the child because father was

required to pay mother only $30.94 monthly, rather than his

appropriate share of the presumptive guideline amount of $720.

We disagree.   The trial court expressly found that the agreement

was in the child's best interests due to the wide range of

additional benefits which the agreement ensured the child.

Moreover, under the terms of the agreement, father's actual

expenses for medical expenses, lessons, and other items were

payable in addition to the net payment of $30.94 to mother.

Evidence supports the trial court's finding that the agreement

continued to be in the child's best interests.



                                 -6-
                           Void Contract

     Finally, mother argues that the trial court erred in

enforcing the agreement.   Mother contends that the agreement is

void because it limits the amount of support the child is

entitled to receive from both parents.     We disagree.   Unlike the

contract found to be void in Kelley, nowhere in this agreement

did the parties attempt to circumvent their respective

obligations to pay child support.     On the contrary, the parties

are to be commended for their repeated emphasis on the child's

best interests and their consideration for equitably splitting

actual expenses arising in the child's life, as well as

providing for the general needs of food, shelter, and clothing.

If the trial court had found that the agreement was not in the

child's best interest, no provision attempted to bar the court's

exercise of its authority to order child support in a manner

other than that set out in the parties' agreement.    Therefore,

we find no error in the trial court's decision to enforce the

agreement.

     Accordingly, the decision of the circuit court is affirmed.

                                                           Affirmed.




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