                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


BARRY LYNN ARTHUR
                                               MEMORANDUM OPINION *
v.   Record No. 1762-98-3                          PER CURIAM
                                                FEBRUARY 2, 1999
COMMONWEALTH OF VIRGINIA,
 DEPARTMENT OF SOCIAL SERVICES,
 DIVISION OF CHILD SUPPORT ENFORCEMENT,
 ex rel. SUSAN J. SMITH


             FROM THE CIRCUIT COURT OF BEDFORD COUNTY
                    James W. Updike, Jr., Judge

           (J. Leyburn Mosby, Jr., on brief), for
           appellant.

           (Mark L. Earley, Attorney General; Ashley L.
           Taylor, Jr., Deputy Attorney General; Robert
           B. Cousins, Jr., Senior Assistant Attorney
           General; Craig M. Burshem, Regional Special
           Counsel; Jack A. Maxwell, Special Counsel, on
           brief), for appellee.



     Barry L. Arthur appeals the judgment of the trial court

holding him liable for past due child support owed to Susan

Smith.   Arthur contends that the trial court erred because:    (1)

he and Smith agreed to terminate his child support obligation;

(2) the claim for past due child support is barred by laches or

the statute of limitations; (3) the claim for past due child

support is barred under the doctrine of estoppel; and (4) any

interest awarded should accrue only from the date of the trial

court's judgment.   Upon reviewing the record and briefs of the

parties, we conclude that this appeal is without merit.
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Accordingly, we summarily affirm the judgment of the trial court.

 See Rule 5A:27.

     On appeal,

           we view [the] evidence and all reasonable
           inferences in the light most favorable to the
           prevailing party below. Where, as here, the
           court hears the evidence ore tenus, its
           finding is entitled to great weight and will
           not be disturbed on appeal unless plainly
           wrong or without evidence to support it.


Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App.

15, 20, 348 S.E.2d 13, 16 (1986).
                            Background

     The parties were divorced by decree entered January 1, 1980.

The decree ruled that there was one child born of the marriage.

On February 18, 1980, the Bedford County Juvenile and Domestic

Relations District Court ordered Arthur to pay child support.

Two months later, Smith's attorney wrote to the clerk of the

juvenile court that Smith "wishes to release [Arthur] of all past

and future child support payments" and that Arthur "has agreed to

give up all visitation rights to the child."   Although that

attorney drafted an order to that effect, the order was never

entered.

     In 1997, Smith filed a motion seeking to recover $21,970 in

past child support due under the unmodified support order.

Arthur contended that the parties had agreed to modify the order,

exchanging a waiver of his child support obligation for a waiver

of his visitation rights.   The Division of Child Support


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Enforcement (DCSE) intervened in the matter on behalf of Smith.

The trial court entered judgment against Arthur in the amount of

$22,835, plus interest at the judgment rate accruing as of July

1, 1995.

                              Agreement

     Arthur contends that the trial court erred by failing to

enforce the parties' agreement under which Smith waived all child

support and Arthur waived his visitation rights.   We find no

error.   No order incorporating the purported agreement was ever

entered.   The trial court did not err in refusing to give effect

to a proposed order that was never entered.
     Assuming arguendo that an agreement had been reached, the

Supreme Court has held that "parents cannot contract away their

children's rights to support nor can a court be precluded by

agreement from exercising its power to decree child support."

Kelley v. Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 56 (1994).      A

child's right to support from his or her parents "cannot be

impinged by contract, and any contract purporting to do so is

facially illegal and void."    Id. at 299, 449 S.E.2d at 57.    The

agreement to waive Arthur's obligation to support the child in

exchange for a waiver of his visitation rights, even if executed,

was unenforceable.

     Arthur cites Acree v. Acree, 2 Va. App. 151, 342 S.E.2d 68

(1986), and Wilderman v. Wilderman, 25 Va. App. 500, 489 S.E.2d

701 (1997), as authority supporting his position that he is



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entitled to relief.    Those cases are clearly distinguishable and

not controlling.    They involved narrow, fact-specific instances

where parents agreed to modify their support obligations in ways

that continued to benefit the children for whom the support was

paid.    No such benefit arose in the circumstances of this case.

Here, the purported agreement would have denied the child support

from, and contact with, Arthur throughout the years.

                   Laches and Statute of Limitations
        Arthur contends that Smith is barred by laches or,

alternatively, the statute of limitations from seeking to recover

the past due child support.    "Laches is an equitable defense, but

'"even a court of equity, in an effort to do equity, cannot

disregard the provisions of a lawful decree . . . ."'"

Richardson v. Moore, 217 Va. 422, 423-24, 229 S.E.2d 864, 866

(1976) (quoting Fearon v. Fearon, 207 Va. 927, 931, 154 S.E.2d

165, 168 (1967)).    The trial court could not disregard the

provisions of the 1980 support decree.    Thus, it did not err in

denying Arthur's laches defense.

        Similarly, Smith's claim for outstanding child support is

not barred by any statute of limitations.    In Bennett v.
Commonwealth ex rel. Waters, 15 Va. App. 135, 422 S.E.2d 458

(1992), we distinguished a "money judgment" from an ongoing

obligation to pay spousal support pursuant to a court order.
          When such a . . . support order is initially
          entered, it establishes the monetary amount
          of an ongoing support obligation. It is in
          that sense an order requiring the payment of
          money . . . . It is not, and cannot be, a



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             judgment for a sum certain or liquidated
             amount of money. Time and circumstances of
             the parties will determine ultimately the
             total amount to be paid under an initial, or
             subsequently modified, . . . support order.
             Moreover, because such a . . . support order
             is ongoing and unliquidated, it is
             essentially different from a money judgment,
             which adjudicates a sum certain due and
             owing.


Id. at 141-42, 422 S.E.2d at 462.     Thus, an order to pay the

ongoing obligation of child support is not a money judgment,

until an unpaid amount has been determined and reduced to a

"money judgment."    Therefore, Code § 8.01-251, cited by Arthur,

which sets a twenty-year statute of limitations on the

enforcement of "money judgments," does not bar Smith from

recovering the child support arrearage.
                               Estoppel

     Arthur also contends that Smith is equitably and

collaterally estopped from seeking to recover the child support

arrearage.    We disagree.   "If without legal excuse one does not

comply with a lawful decree requiring him to pay support monies,

he does not meet the requirements of [the] . . . doctrine [of

estoppel] and may not use 'equity' as a defense."     Martin v.

Bales, 7 Va. App. 141, 146-47, 371 S.E.2d 823, 826 (1988).        There

is no merit in Arthur's contention that Smith was collaterally

estopped from pursuing the support arrearage because the juvenile

and domestic relations district court dismissed the criminal

motion to show cause.    The fact that Arthur may not have

contemptuously disregarded the support order does not relieve him



                                 - 5 -
of his civil obligation to support his child.    Smith is not

collaterally estopped by an unsuccessful criminal contempt

prosecution from pursuing a civil action.
          For at least 118 years, [the Supreme] Court,
          in dealing with the preclusive effect of a
          criminal judgment upon a subsequent civil
          action arising from the same transaction, has
          recognized that the criminal charge and the
          civil action, "though founded on the same
          fact, are distinct remedies, prosecuted by
          different parties and for different
          purposes," and that there is a "want of
          mutuality."


Selected Risks Ins. Co. v. Dean, 233 Va. 260, 263-64, 355 S.E.2d

579, 580-81 (1987) (citation omitted).

                               Interest

     Code § 20-78.2 provides, in pertinent part, that an order of

support arrearage "shall also include an amount for interest on

the arrearage at the judgment interest rate as established by

[Code] § 6.1-330.54 unless the obligee, in a writing submitted to

the court, waives the collection of interest."      (Emphasis added.)

Code § 63.1-267 provides that "[i]nterest at the judgment

interest rate as established by [Code] § 6.1-330.54 on any

arrearage pursuant to an order being enforced by the Department

[of Social Services] pursuant to this chapter shall be collected
by the Commissioner except in the case of a minor obligor during

the period of his minority."    (Emphasis added.)   These

provisions, as amended, were effective July 1, 1995.     The trial

court did not err in awarding interest to Smith as provided by

statute.



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     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                       Affirmed.




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