                        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

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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."

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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.




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