COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Clements Argued at Alexandria, Virginia
KAREN K. VOORHIES MEMORANDUM OPINION * BY v. Record No. 1729-00-4 JUDGE JEAN HARRISON CLEMENTS JULY 10, 2001 GERALD J. VOORHIES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY F. Bruce Bach, Judge
Judith M. Bragan (Judith M. Bragan, P.C., on brief), for appellant.
Gerald J. Voorhies, pro se.
Karen K. Voorhies (wife) appeals from the order entered by
the circuit court on June 23, 2000, dismissing the rule to show
cause issued on April 25, 2000 against Gerald J. Voorhies
(husband). The trial court concluded that, even though husband
had failed to pay wife court-ordered pendente lite child support
and wife was entitled to payment of reasonable attorney's fees
incurred in attempting to obtain that unpaid support, the court
could not find husband in contempt of court and wife could not
obtain those arrearages and attorney's fees because the trial
court no longer had jurisdiction over the issue of pendente lite
child support since more than twenty-one days had lapsed after the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. final, unappealed decree of divorce adjudicating the issue had
been entered. Wife contends the trial court erred in reaching
that conclusion and, earlier, in eliminating the proposed
arrearages provision from the divorce decree. Finding that the
trial court erred in dismissing the rule to show cause, we reverse
and remand this case for the reasons that follow.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal. "[W]e review the trial court's
statutory interpretations and legal conclusions de novo." Timbers
v. Commonwealth, 28 Va. App. 187, 193, 503 S.E.2d 233, 236 (1998).
BACKGROUND
On August 22, 1997, the trial court entered an order awarding
pendente lite child and spousal support payments to wife. On
April 22, 1998, the parties executed a Child Custody, Parenting,
Spousal and Child Support Agreement (parenting agreement), which
increased husband's child support obligation. On December 2,
1999, wife filed a petition for a rule to show cause to collect
child support arrearages based on husband's failure to comply with
the court's pendente lite order of August 22, 1997 and the
parties' parenting agreement. On December 10, 1999, the trial
court declined to issue the requested rule because the parenting
agreement had not been incorporated into a court order. On
- 2 - January 11, 2000, wife filed a motion for entry of a court order
incorporating the parenting agreement. The trial court entered an
order incorporating the parenting agreement on February 9, 2000.
The case was then continued to February 22, 2000, on the issues of
equitable distribution and changes of circumstances relating to
child custody and support.
At the February 22, 2000 hearing, the trial court ruled on
the equitable distribution and changes of circumstances issues and
directed wife's counsel to prepare an order to be presented for
entry on March 10, 2000. Regarding the presentation of that
order, the trial judge stated, "I'm not inviting any further
evidence, further argument, or further briefing, but just . . .
present the order."
On March 3, 2000, wife filed a notice that on March 10, 2000,
she would move the trial court for entry of a final decree of
divorce that included the trial court's rulings from the February
22, 2000 hearing. Wife included in her proposed divorce decree a
paragraph setting forth husband's child support arrearages as of
March 10, 2000. To show how those arrearages were calculated,
wife presented a sworn petition for a rule to show cause seeking
child support arrearages and her attorney's fees incurred in
attempting to obtain those arrearages to the trial court at the
hearing on March 10, 2000. The trial judge, however, refused to
hear any evidence at the March 10, 2000 hearing, noting that the
February 22, 2000 hearing was "the final hearing in the case."
- 3 - The February 22, 2000 hearing was, the court continued, "the time
to put on evidence on all issues."
The trial court entered the decree of divorce on March 29,
2000. 1 The trial judge struck through the provision in the
proposed decree regarding arrearages and wrote in its place, "No
evidence was presented as to arrearages." The trial judge also
added to the decree the language, "This cause is final." Wife's
counsel endorsed the decree without exceptions, and wife did not
file a notice of appeal with respect to the decree.
On April 25, 2000, based on wife's previously submitted
petition for a rule to show cause to recover the pendente lite
arrearages, the trial court issued a rule to show cause against
husband. At the hearing on the rule to show cause, on June 23,
2000, the trial court found that husband had failed to pay wife
$5,056.50 in pendente lite child support and that $2,500 was a
reasonable amount of attorney's fees incurred by wife in
attempting to obtain payment by husband of the pendente lite child
support arrearages. The court concluded, however, that it could
not find husband in contempt of court because the March 29, 2000
final decree of divorce stated that no evidence of any arrearages
had been presented and the decree did not reserve the arrearages
1 In addition to granting wife a divorce, the decree provides that the parties' parenting agreement dated April 22, 1998, which was incorporated into the trial court's order of February 9, 2000, is also affirmed, ratified, and incorporated into the decree of divorce.
- 4 - issue for later determination. Thus, the trial court reasoned,
because the decree was a final order that adjudicated the cause,
the court lacked jurisdiction over the matter more than twenty-one
days after the final decree's entry. Consequently, the trial
court ruled that wife was precluded from obtaining pendente lite
child support arrearages and dismissed the rule to show cause.
ANALYSIS
Wife contends the trial court erroneously concluded that the
issue of child support arrearages was adjudicated in the divorce
decree. We agree.
Rule 1:1 provides, in pertinent part, that "[a]ll final
judgments, orders, and decrees . . . shall remain under the
control of the trial court and subject to be modified, vacated or
suspended for twenty-one days after the date of entry, and no
longer." Here, however, wife was not seeking in her petition for
a rule to show cause to modify, vacate, or suspend the final
decree of divorce or the February 9, 2000 order incorporating the
parties' parenting agreement. Rather, she merely sought
enforcement of the child support provision of the parenting
agreement incorporated in the court's February 9, 2000 pendente
lite order, the validity of which husband does not challenge. To
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COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Clements Argued at Alexandria, Virginia
KAREN K. VOORHIES MEMORANDUM OPINION * BY v. Record No. 1729-00-4 JUDGE JEAN HARRISON CLEMENTS JULY 10, 2001 GERALD J. VOORHIES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY F. Bruce Bach, Judge
Judith M. Bragan (Judith M. Bragan, P.C., on brief), for appellant.
Gerald J. Voorhies, pro se.
Karen K. Voorhies (wife) appeals from the order entered by
the circuit court on June 23, 2000, dismissing the rule to show
cause issued on April 25, 2000 against Gerald J. Voorhies
(husband). The trial court concluded that, even though husband
had failed to pay wife court-ordered pendente lite child support
and wife was entitled to payment of reasonable attorney's fees
incurred in attempting to obtain that unpaid support, the court
could not find husband in contempt of court and wife could not
obtain those arrearages and attorney's fees because the trial
court no longer had jurisdiction over the issue of pendente lite
child support since more than twenty-one days had lapsed after the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. final, unappealed decree of divorce adjudicating the issue had
been entered. Wife contends the trial court erred in reaching
that conclusion and, earlier, in eliminating the proposed
arrearages provision from the divorce decree. Finding that the
trial court erred in dismissing the rule to show cause, we reverse
and remand this case for the reasons that follow.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal. "[W]e review the trial court's
statutory interpretations and legal conclusions de novo." Timbers
v. Commonwealth, 28 Va. App. 187, 193, 503 S.E.2d 233, 236 (1998).
BACKGROUND
On August 22, 1997, the trial court entered an order awarding
pendente lite child and spousal support payments to wife. On
April 22, 1998, the parties executed a Child Custody, Parenting,
Spousal and Child Support Agreement (parenting agreement), which
increased husband's child support obligation. On December 2,
1999, wife filed a petition for a rule to show cause to collect
child support arrearages based on husband's failure to comply with
the court's pendente lite order of August 22, 1997 and the
parties' parenting agreement. On December 10, 1999, the trial
court declined to issue the requested rule because the parenting
agreement had not been incorporated into a court order. On
- 2 - January 11, 2000, wife filed a motion for entry of a court order
incorporating the parenting agreement. The trial court entered an
order incorporating the parenting agreement on February 9, 2000.
The case was then continued to February 22, 2000, on the issues of
equitable distribution and changes of circumstances relating to
child custody and support.
At the February 22, 2000 hearing, the trial court ruled on
the equitable distribution and changes of circumstances issues and
directed wife's counsel to prepare an order to be presented for
entry on March 10, 2000. Regarding the presentation of that
order, the trial judge stated, "I'm not inviting any further
evidence, further argument, or further briefing, but just . . .
present the order."
On March 3, 2000, wife filed a notice that on March 10, 2000,
she would move the trial court for entry of a final decree of
divorce that included the trial court's rulings from the February
22, 2000 hearing. Wife included in her proposed divorce decree a
paragraph setting forth husband's child support arrearages as of
March 10, 2000. To show how those arrearages were calculated,
wife presented a sworn petition for a rule to show cause seeking
child support arrearages and her attorney's fees incurred in
attempting to obtain those arrearages to the trial court at the
hearing on March 10, 2000. The trial judge, however, refused to
hear any evidence at the March 10, 2000 hearing, noting that the
February 22, 2000 hearing was "the final hearing in the case."
- 3 - The February 22, 2000 hearing was, the court continued, "the time
to put on evidence on all issues."
The trial court entered the decree of divorce on March 29,
2000. 1 The trial judge struck through the provision in the
proposed decree regarding arrearages and wrote in its place, "No
evidence was presented as to arrearages." The trial judge also
added to the decree the language, "This cause is final." Wife's
counsel endorsed the decree without exceptions, and wife did not
file a notice of appeal with respect to the decree.
On April 25, 2000, based on wife's previously submitted
petition for a rule to show cause to recover the pendente lite
arrearages, the trial court issued a rule to show cause against
husband. At the hearing on the rule to show cause, on June 23,
2000, the trial court found that husband had failed to pay wife
$5,056.50 in pendente lite child support and that $2,500 was a
reasonable amount of attorney's fees incurred by wife in
attempting to obtain payment by husband of the pendente lite child
support arrearages. The court concluded, however, that it could
not find husband in contempt of court because the March 29, 2000
final decree of divorce stated that no evidence of any arrearages
had been presented and the decree did not reserve the arrearages
1 In addition to granting wife a divorce, the decree provides that the parties' parenting agreement dated April 22, 1998, which was incorporated into the trial court's order of February 9, 2000, is also affirmed, ratified, and incorporated into the decree of divorce.
- 4 - issue for later determination. Thus, the trial court reasoned,
because the decree was a final order that adjudicated the cause,
the court lacked jurisdiction over the matter more than twenty-one
days after the final decree's entry. Consequently, the trial
court ruled that wife was precluded from obtaining pendente lite
child support arrearages and dismissed the rule to show cause.
ANALYSIS
Wife contends the trial court erroneously concluded that the
issue of child support arrearages was adjudicated in the divorce
decree. We agree.
Rule 1:1 provides, in pertinent part, that "[a]ll final
judgments, orders, and decrees . . . shall remain under the
control of the trial court and subject to be modified, vacated or
suspended for twenty-one days after the date of entry, and no
longer." Here, however, wife was not seeking in her petition for
a rule to show cause to modify, vacate, or suspend the final
decree of divorce or the February 9, 2000 order incorporating the
parties' parenting agreement. Rather, she merely sought
enforcement of the child support provision of the parenting
agreement incorporated in the court's February 9, 2000 pendente
lite order, the validity of which husband does not challenge. To
conclude as the trial court did—that the entry of the divorce
decree nullified the February 9, 2000 order—would retroactively
nullify the right to accrued child support under a pendente lite
order. "To so hold would be in derogation of the well established
- 5 - principle that court–ordered support becomes vested when it
accrues and the courts are without authority to make any change
with regard to arrearages." Smith v. Smith, 4 Va. App. 148, 152,
354 S.E.2d 816, 818-19 (1987).
This does not end our inquiry, however. We must decide
whether the trial court correctly interpreted the language in the
divorce decree that reads, "No evidence was presented as to
arrearages," as an adjudication of the issue of arrearages. We
conclude that the divorce decree did not adjudicate the issue of
arrearages.
No rule to show cause was ever issued as a result of wife's
first petition filed December 2, 1999. The only issues noticed
for the hearing on February 22, 2000, involved equitable
distribution and changes of circumstances related to custody and
support. After deciding those issues, the trial judge told the
parties to present the order memorializing her rulings from the
February 22, 2000 hearing on March 10, 2000. Both parties wanted
a divorce, which the trial court "intended to give them" in that
order. However, the trial judge specifically admonished the
parties that she would not hear further evidence or argument at
the March 10, 2000 hearing.
At the March 10, 2000 hearing, wife presented a second
petition for a rule to show cause to the court and attempted to
raise the arrearages issue and her request for attorney's fees in
the case. No rule had been issued or notice given to present
- 6 - evidence on the issue of arrearages at the March 10, 2000 hearing.
The trial judge refused to take evidence on those issues. Thus,
when the trial judge entered the divorce decree, she properly
struck the arrearages language in wife's proposed decree because
arrearages had not been an issue before the court on March 10,
2000, and no evidence thereon had been presented. 2
We hold, therefore, that, because the issue of pendente lite
arrearages was not adjudicated in the divorce decree, the trial
court had jurisdiction to enforce husband's compliance with the
court's pendente lite child support order. Thus, the trial court
erred in dismissing the rule to show cause issued against husband
on April 25, 2000, despite finding that husband owed wife
$5,056.50 in pendente lite child support and $2,500 in attorney's
fees incurred by wife in seeking enforcement of the court's
pendente lite child support order.
Wife also seeks an award of attorney's fees and costs
incurred in this appeal. We decline the invitation to make
husband pay for an appeal that arose not from any meritless claims
by him but from an erroneous ruling by the trial court. See
O'Loughlin v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d 98 (1996).
2 Although wife's second assigned error—that the trial court erroneously eliminated the proposed arrearages provision from the divorce decree—is not properly before us, that argument having never been made to the trial court, see Rule 5A:18, we have necessarily decided the issue in reaching our decision in this case.
- 7 - For the foregoing reasons, we reverse the judgment of the
trial court and remand this case to the trial court for further
proceedings consistent with this opinion.
Reversed and remanded.
- 8 -