                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


CARL O. PATTON
                                                MEMORANDUM OPINION *
v.   Record No. 1851-96-4                    BY JUDGE CHARLES H. DUFF
                                                   JULY 8, 1997
LINDA GIULIANO PATTON


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       Michael P. McWeeny, Judge
             William K. Dove, II (William K. Dove &
             Associates, P.C., on briefs), for appellant.

             Marcia M. Maddox (Heather Ann Cooper; Law
             Office of Marcia M. Maddox, on brief), for
             appellee.



     Carl O. Patton (father) contends that the trial judge erred

by (1) denying his petition to modify his child support

obligation because his workers' compensation benefits had been

terminated; and (2) not crediting his child support payments with

the lump sum Social Security disability benefit received by Linda

Giuliano Patton (mother) on behalf of the children.       We find no

error and affirm the judgment of the trial judge.
                              Background

     The parties were married in 1982 and their Final Decree of

Divorce was entered on June 15, 1990.      Two children were born of

the marriage, and custody of the two minor children was awarded

to mother.    Father agreed to pay spousal and child support
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
pursuant to the parties' Separation Agreement which was

incorporated into the final decree of divorce.

     On June 24, 1994, father was involved in an employment

related traffic accident, resulting in permanent brain injury.

He received workers' compensation payments, and he sought Social

Security disability benefits for himself and his children.    A

February 1, 1996 letter from the Social Security Administration

indicates that mother was to receive Social Security benefits in

the amount of $219 for each child for December 1994, $222 per

child starting in January 1995, and $228 per child starting in

December 1995.
     On June 14, 1995, the parties entered into a Consent Order,

addressing child and spousal support, and insurance premium

arrearages owed by father to mother.   Effective March 1, 1995,

the Consent Order provided that these arrearages were reduced to

judgments against father in favor of mother.   The Consent Order

further provided that the judgments constituted "judgment

lien[s]" against father's anticipated personal injury award and

included interest.

     The Consent Order also confirmed the continuing,

non-modifiable nature of father's spousal support obligation.     In

addition, the parties agreed to a temporary reduction of father's

child support obligations from $1,000 per month to $900 per

month.   The Consent Order further provided that, of the $900 per

month child support due, father would pay only $800 per month




                                 2
until receipt of the personal injury award or his return to

employment, whichever first occurred.      The $100 per month not

paid by father would accrue as additional arrearages,

constituting additional judgment liens against his anticipated

personal injury award.

     On November 9, 1995, father was awarded $300,000 in his

personal injury action.   On November 17, 1995, mother requested a

payment of $18,521.34 from father as satisfaction of the

judgments established in the Consent Order.
     On January 5, 1996, mother filed a "Petition for Rule to

Show Cause" due, inter alia, to father's refusal to satisfy the

judgments pursuant to the Consent Order.      The circuit court

entered a "Rule for Contempt" against father on January 11, 1996.

     Father filed a "Response to Rule to Show Cause" on January

26, 1996.   In the response, he stated that he had paid mother

$13,362.34 pursuant to the Consent Order prior to her filing the

Petition for Rule to Show Cause.       He also indicated that he was

withholding $5,328 as a credit to him based upon pending Social

Security disability payments to be paid to the parties' children

on his behalf.   Father more fully set forth this argument in his

"Petition for Entry of Order to Implement Consent Order."      In

that petition, father contended that mother had received a lump

sum payment of $5,328 in Social Security benefits on behalf of

the children, which was retroactive through the period of time

covered by the Consent Order, and which compensated mother for



                                   3
the monthly Social Security payments beginning December 1994.

Father asserted that he was entitled to a credit against the lien

set forth in the Consent Order in the amount of $5,328.

     Also in that petition, father asked the trial judge to

recalculate his child support obligation, crediting him with the

$444 per month in Social Security benefits received by the

children, resulting in a reduction of $444 per month in his child

support payments.
     On February 16, 1996, the trial judge held a hearing on the

outstanding motions.   On February 27, 1996, the judge issued an

opinion letter, finding that father had no right to an offset

against the child support arrearages for Social Security

disability benefits "potentially due" to the children on his

behalf.   The judge noted that the language of the June 14, 1995

Consent Order was "clear and unambiguous" in requiring that the

judgment for arrearages be paid out of father's personal injury

recovery.

     The trial judge further stated that the terms of the Consent

Order were not subject to retroactive modification.   The judge

found that "the disability benefits received by the children

should be included in the computation of the ongoing support

obligation and credited against that obligation."   The judge set

father's revised child support obligation at $861 per month, with

a credit or offset of $444 per month for the Social Security

benefits, resulting in a net obligation of $417 per month.




                                 4
     The parties filed several motions, including father's

"Petition for Modification of Support Order and for Computation

of Credit Against Spousal Support or Refund."   In this petition,

father asserted that, on March 8, 1996, his workers' compensation

payments were terminated.   He asked to modify his child support

obligation because these benefits had been terminated.   He also

renewed his request for a credit for the lump sum Social Security

disability payment made to his children on his behalf.
     On May 24, 1996, the parties presented their respective

motions to the trial judge.   At the hearing, a claims adjuster

from the workers' compensation carrier testified that the carrier

terminated father's workers' compensation payments on March 8,

1996 due to father's receipt of the third-party personal injury

award.

     On May 28, 1996, the trial judge issued an opinion letter,

finding that the monthly Social Security payments constituted

father's income for child support purposes.   The judge also found

that the change in the source of father's income from workers'

compensation to the personal injury recovery was not a material

change in circumstance.   Therefore, the judge denied father's

request for modification of his child support obligation.

Finally, the judge denied father's request for a credit for the

lump sum Social Security disability payment against his child

support or spousal support obligations.   The judge reasoned that,

although father presented no evidence that such payment was




                                 5
received by mother, any lump sum benefits, "if proven, would be

the periodic payments accrued prior to the February 16, 1996

hearing," and that this was a benefit that the children should

have been receiving at the rate of $444 per month, "the exact sum

used both to compute [father]'s gross income and to serve as a

credit against his obligation."

     On June 28, 1996, the trial judge entered an order

memorializing his May 28, 1996 opinion letter.   Father appeals

from that order.

               Workers' Compensation Benefits Issue

       "Where the trial court's decision is based upon an ore

tenus hearing, its determination will not be disturbed on appeal

unless it is plainly wrong or without evidence in the record to

support it."   Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605,

383 S.E.2d 28, 30 (1989).

     Father first argues that the trial judge erred in denying

his petition for modification of his child support obligations

when his workers' compensation benefits were terminated.

     Code § 65.2-309 provides for an employer's right of

subrogation against a third party when the employer has paid

compensation to an employee who was injured as a result of the

negligence of the third party.    The claims adjuster for the

insurance carrier testified that his company ceased paying

workers' compensation benefits to father when he obtained the

personal injury award, stating that the carrier had a lien on



                                  6
this award.   Mother disputes that father proved he no longer

receives workers' compensation payments.   However, the trial

judge found that the evidence "clearly demonstrate[d]" that the

insurance company terminated father's temporary total disability

payments.

            The trial judge then found that the workers'

compensation benefits were considered "'gross income'" under Code

§ 20-108.2(C), and that, because the personal injury award

replaced the workers' compensation award, "the alteration of the

source of the workers' compensation benefit d[id] not constitute

a change in circumstance."
     Code § 20-108.2(C) defines "gross income" as "all income

from all sources," including "workers' compensation benefits."

Clearly, father's workers' compensation benefits constituted part

of his gross income.   However, father argues that the trial judge

erred in finding that the personal injury award replaced the

workers' compensation award.   Father contends that the result of

the judge's findings is to require payment of child support from

the proceeds of the personal injury award, which is in

contradiction of Code § 34-28.1, providing for an exemption for

personal injury awards from creditor process.

     Father cites Whitaker v. Colbert, 18 Va. App. 202, 442

S.E.2d 429 (1994), as authority for the position that a personal

injury award is not income for purposes of Code § 20-108.2(C).

In Whitaker, we held that the evidence did not prove that the




                                  7
personal injury settlement generated income for the former

husband for purposes of determining child support.     Id. at 205,

442 S.E.2d at 431.   However, Whitaker is factually

distinguishable from father's case.   In Whitaker, the disabled

parent did not receive workers' compensation benefits.    His only

source of income was Social Security benefits.   Id. at 204, 442

S.E.2d at 430.   Because the personal injury award included an

income element and compensation for medical expenses, loss of

earning capacity, pain and suffering and other elements, the

trial court reasoned that it would be speculative to apportion

any part of the settlement to prior lost wages as opposed to

other elements of damages.   Id. at 205, 442 S.E.2d at 431.

     Father's personal injury award compensated for a work

related injury and the award temporarily replaced income he had

been receiving in the form of workers' compensation benefits.

Although his award presumably also contained elements such as

compensation for medical expenses and pain and suffering, the

trial judge did not have to speculate as to how much of the

personal injury award to attribute to the replacement of the

workers' compensation benefits.   The claims adjuster from the

workers' compensation carrier testified that father received

bi-weekly workers' compensation payments of $902.     These payments

were suspended pending the exhaustion of the carrier's right to

subrogation.   Therefore, a definable portion of the personal

injury award, $902 per week, replaced the workers' compensation



                                  8
payments which, by statute, are included in gross income for

purposes of the determination of child support.    See Code

§ 20-108.2(C).   Accordingly, the trial judge's ruling was not

plainly wrong or without evidence to support it.

     "The moving party in a petition for modification of support

is required to prove both a material change in circumstances and

that this change warrants a modification of support."

Schoenwetter, 8 Va. App. at 605, 383 S.E.2d at 30.   The trial

judge's ruling that the personal injury award was an "alteration

of the source of the workers' compensation benefit" was not a

ruling that the entire personal injury award should be included

in father's gross income.   Only that portion of the personal

injury award which replaced the workers' compensation award was

included in the computation of father's gross income.   Thus,

father's argument that the judge's ruling results in the payment

of child support in direct contradiction of Code § 34-28.1 is

without merit.   Because a portion of the personal injury award

replaced the workers' compensation component of father's gross

income for the purpose of child support determination, father

failed to prove a material change in circumstance.
                      Lump Sum Payment Issue

     Father next argues that the trial judge erred in not

crediting his child support payments with the lump sum Social

Security disability benefit received by mother on behalf of the

children.




                                 9
     In his February 27, 1996 opinion letter, the trial judge

found that there was no "right of offset" for disability benefits

"potentially due" with respect to the arrearages, stating that

the Consent Order was "clear and unambiguous" that the arrearages

were to be paid from the personal injury award.   However, the

judge found that the Social Security disability benefits received

by the children should be included in the computation of the

ongoing support obligation and credited against that obligation,

citing Whitaker and Virginia Dep't of Social Servs. v. Skeens, 18

Va. App. 154, 442 S.E.2d 432 (1994).   The judge then reduced

father's monthly support obligation by $444 per month, the total

amount of the monthly Social Security benefits payment received

by the children.   The decision to reduce father's ongoing monthly

support obligation conforms with the holding in Whitaker, which

held that the child support obligation was properly credited by

the amount of Social Security benefits received by the children.

 Whitaker, 18 Va. App. at 205-06, 442 S.E.2d at 431-32.
     Skeens, however, addresses the applicability of Social

Security benefits previously paid as a credit against a child

support arrearage.   In Skeens, after analyzing decisions in other

jurisdictions, we held:
          [A] dependent's Social Security disability
          benefits, although constituting an
          independent entitlement, are in the nature of
          support made in lieu of a disabled employee's
          earnings. However, whether the trial court
          credits the payment against an arrearage for
          court-ordered support depends upon the
          circumstances of each case and rests in the
          sound discretion of the trial judge.



                                10
Skeens, 18 Va. App. at 156, 442 S.E.2d at 433-34 (footnote

omitted).   The rationale behind such a rule is that a request for

a setoff against an arrearage "goes to the discharge procedure of

vested support payments and not to the modification of vested

support rights."   Id. at 159-60, 442 S.E.2d at 435.

     In our analysis, we stated:
          The payment of money to the child's custodian
          in the form of Social Security payments is an
          indirect payment from the obligor parent for
          which the parent should receive credit.
          However, whether the obligor parent is
          entitled to credit for such payments against
          an accumulated arrearage presents a different
          problem and will depend upon a number of
          factors.

Id. at 158, 442 S.E.2d at 435. The factors
          includ[e] but [are] not limited to the extent
          to which the original support award was
          sufficient or deficient in meeting the
          child's needs, whether any modification of
          the support award has been made based upon
          the parent's disability, or a change in the
          child's needs, or the parents' abilities to
          provide support independent of the Social
          Security payments, and whether both parents
          have acted in good faith.

Id. at 160, 442 S.E.2d at 436.

     Here, the trial judge relied on the "clear and unambiguous"

wording of the Consent Order that the arrearages would be paid

out of the proceeds of father's personal injury award.

Accordingly, there was no need for the trial judge to exercise

discretion in weighing the various factors set out in Skeens.

The parties had specifically agreed that the funds to be used



                                 11
were to come from the personal injury award.   Their contract,

exemplified by the consent decree thus displaced the need for

application of the Skeens factors.   We find no error in the trial

judge's ruling.

     Finally, we deny mother's request for attorney's fees.




                               12
     For these reasons, we affirm the judgment of the trial

judge.

                                                Affirmed.




                               13
Benton, J., concurring and dissenting.

     I concur in the majority's decision to affirm the trial

judge's ruling that Carl O. Patton, the father, failed to show a

material change in circumstances justifying a modification in his

child support obligation.   I dissent, however, from the

majority's conclusion that the trial judge did not err in

refusing to use the lump sum Social Security payment received by

the children to reduce the total amount of child support

arrearages due.
     In his opinion letter, the trial judge stated the following,

in pertinent part:
             The central issue in each of these motions
          is the asserted "right of offset" for
          disability benefits potentially due the
          dependent children. The Court finds that
          with respect to the arrearages there is no
          such right. The Consent Order of June 14,
          1995, reads in part: ". . . [The father] is
          hereby ordered to cause disbursement of all
          principal and interest accrued as a result of
          this judgment for arrearages to be made
          directly to [the mother] out of any such
          personal injury award to which [the father]
          is entitled." The language is clear and
          unambiguous, and the Consent Order is not
          subject to retroactive modification. In
          addition, at the time this offset was
          asserted there had been no payments of
          disability payments to the dependent
          children.


(Emphasis added).   That ruling was an erroneous application of

the law.   In Virginia Dep't of Social Servs. v. Skeens, 18 Va.

App. 154, 442 S.E.2d 432 (1994), this Court ruled as follows:
             Of those jurisdictions that have
          disallowed a credit, most have done so on the
          theory that application of Social Security


                                14
          payments to reduce a child support arrearage
          constitutes a retroactive modification of the
          child support award. We consider this . . .
          approach to be unsound.

             When a trial court grants credit to a
          payor parent for Social Security benefits
          received by his children on account of his
          disability, the court does not alter the
          amount of child support that the parent has
          been ordered or is required to pay. The
          court simply allows a source of funds,
          indirectly attributable to a parent, to be
          used to satisfy the parent's court-ordered
          support obligation. Thus, a circuit court
          does not retroactively modify a child support
          award or forgive an accumulated arrearage by
          crediting a dependent child's Social Security
          benefits to satisfy a support obligation.


Id. at 159, 442 S.E.2d at 435 (citations omitted) (emphasis

added).

     The majority concludes that because the parents had already

entered into the agreement contained in the Consent Order, the

trial judge was not required "to exercise discretion in weighing

the various factors set out in Skeens."     I disagree.

     "When addressing matters concerning a child . . . the

paramount consideration of a trial [judge] is the child's best

interests."   Logan v. Fairfax County Dep't of Human Dev., 13 Va.

App. 123, 128, 409 S.E.2d 460, 463 (1991).    Trial judges are

vested with discretion to render decisions that protect the

child's best interests.   See id.    "[P]arents cannot, by agreeing

upon the amount or conditions, prevent a court from exercising

its authority to determine child support."     Watkinson v. Henley,

13 Va. App. 151, 157, 409 S.E.2d 470, 473 (1991); cf. Kelley v.



                                15
Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 56 (1994) (holding that

a child support agreement, which effectively eliminated one

spouse's responsibility to support the child and diminished the

court's power to determine support, was void).   Accordingly, I

disagree with the majority's assertion that the parents'

"contract, exemplified by the consent decree . . . displaced the

need for application of the Skeens factors."

     Because the record clearly reveals that, rather than apply

the Skeens factors, the trial judge arrived at a legally
erroneous conclusion, I would remand the case to the trial judge

for reconsideration of the refusal to allow an offset.




                               16
