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Supreme Court of Virginia Clarifies: Unpaid Child Support Can Be Pursued as Contractual Claims
Schmidt v. Deel, Record No. 240264 (Va. Apr. 24, 2025) (unpub.)
The Supreme Court released a single unpublished order in which it ruled that unpaid child support obligations can be pursued as contractual claims potentially reaching back years before any court petition for support is filed.
Mother and father had a child during a cohabitational relationship but separated within two years of the child’s birth. In December 2012, the parties signed a formal separation agreement that included provisions for child support, with father agreeing to make payments according to Virginia statutory guidelines. Father made no payments from 2012 to 2019. In 2018, about seven years after the agreement was signed, father petitioned for custody and mother petitioned for child support.
Mother filed two separate complaints in the circuit court: one in her individual capacity, and one as “next friend” of the child, seeking judgment for unpaid child support per the parties’ agreement. The circuit court found father in breach of the agreement and awarded mother payments dating back to the original agreement.
Father appealed to the Court of Appeals, which issued a split decision affirming the circuit court’s finding recognizing the agreement as valid, but reversing the circuit court’s award of child support that predated the mother’s initial petition, filed in 2018. It held that Code § 20-108.2(B) was “clear and controlling” in limiting retroactive child support awards to the date when a petition is first filed in court, not the date of the original agreement. Further, the Court of Appeals declined to address mother’s contractual claims, stating that the circuit court “did not rule on such claims nor did it grant any contract damages—only arrearages.” It acknowledged that mother may have a possible avenue of recovery under a contract theory but found that there was insufficient evidence in the record—in particular a missing hearing transcript—to support such a recovery.
The Supreme Court reversed the Court of Appeals. It ultimately found the Court of Appeals’ approach to be wrong because it failed to recognize that the circuit court’s decision was ultimately based on contract law principles, not mere child support provisions. It disagreed with the Court of Appeals that the record was insufficient to rule on that basis. The parties’ agreement was a valid contract that father breached by not making child support payments. While it found that mother’s claim would be partly limited by the five-year statute of limitations for written contracts, it found that the child’s third-party beneficiary claim may allow recovery dating back to the agreement’s execution due to tolling provisions for minors. The Supreme Court remanded the case to determine attorney fees.