Retroactive child support decision

No retroactive child support under pendente lite order if divorce dismissed

The Virginia Court of Appeals headed into the new year with a couple of published family law opinions, which makes me think it may be a big year for family law and divorce appeals.

The first case of interest is Milot v. Milot wherein the Court of Appeals decided that a circuit court, relying on Code § 20-108.1(B), may not order retroactive child support (and arrearage and interest) for the interim period between the date of a Code § 8.01-335(B) dismissal and the date of a request for that support in a newly instituted cause.

The wife filed for divorce in 2002 and obtained a pendente lite child support award. The trial court then remanded the child support matter to the Juvenile and Domestic Relations District Court. No new child support order was entered in the JDR court and the divorce action was dismissed in 2007. In 2012, the wife asked the court to vacate the dismissal of the divorce and to reinstate the pendente lite child support order. This motion was denied and on appeal the Court of Appeals held that the pendente lite order was automatically terminated with dismissal of the divorce.

During this same time period a new divorce action was instituted by the Husband. In that case the Wife sought retroactive child support and arrearages under the terminated pendente lite child support order. Relying primarily on Code 108.1(B), the circuit court held that it had the authority to order retroactive child support. The Court of Appeals disagreed and reversed this decision.

The Court of Appeals explained that there was no court order for child support after the initial divorce suit was dismissed therefore there could be no arrearages. See Smith v. Smith, 4 Va. App. 148, 152, 354 S.E.2d 816, 818 (1987) (“[O]nce an action is dismissed, any pendente lite order in the case should be considered dismissed.”). Thus, the Court of Appeals held that to exercise the retroactive authorization set forth in Code § 20-108.1(B) there must be, as a condition precedent, an existing and pending cause in a court of competent jurisdiction.

Whether a support obligation may be applied retroactively can be a complicated question. If you are facing a child support matter involving retroactive child support it is advisable that you speak with an experienced family law attorney. Please feel free to contact The Moore Law Firm PLLC to discuss any issues related to retroactive child support.