CW, DSS, DCSE, ex rel. Graham v Bazemore

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. ANGELA A. GRAHAM
OPINION BY
v. 	Record No. 1368-99-1 	CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 9, 2000
TRENTON L. BAZEMORE
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge
Steven F. Lederman, Special Counsel (Beth J.
Edwards, Regional Special Counsel; 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, on brief), for appellant.
No brief or argument for appellee.
The Commonwealth of Virginia, Department of Social
Services, Division of Child Support Enforcement, ex rel.
Angela A. Graham ("Division"), appeals an order of the Circuit
Court of the City of Suffolk retroactively modifying an initial
support order requiring father to provide health care coverage
to the parties' minor child. 	The sole issue raised is whether
the trial court, in the contempt proceedings for father's
failure to provide health care coverage, had authority to

retroactively modify the underlying support order.1 For the
following reasons, we reverse and remand.
I.
Trenton L. Bazemore ("father") and Angela A. Graham
("mother") are unmarried and have one biological child, CG. 	On
mother's behalf, the Division filed an initial petition for
child support and health insurance. 	On April 22, 1998, the
Juvenile and Domestic Relations District Court for the City of
Suffolk (J&DR court) entered an order establishing paternity and
a support order in the amount of $86 per month. 	The support
order also required father to provide "health care coverage" for
the child. 	Father did not appeal the April 22, 1998 support
order.
On August 25, 1998, the Division requested the J&DR court
to require father to show cause why he should not be held in
contempt for failure to provide health care coverage as required
by the support order. 	At the contempt hearing, father asserted
that, although health care coverage was available through his
work, he could not afford coverage for his minor child. 	The
J&DR court held that "health care coverage" was "not available
'at a reasonable cost'" and, therefore, found father not guilty
of contempt. 	Additionally, the J&DR court "retroactively
deleted the provision that ordered [father] to provide health
1 The Division does not challenge the trial court's finding
that father was not in contempt.
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insurance for the child." 	The Division appealed this decision,
and the case was heard de novo in the circuit court.
The evidence at the ore tenus hearing established that
father was employed at the Department of Public Utilities for
the City of Portsmouth. 	According to the written statement of
facts,
[t]he Father testified that he has health
insurance coverage for himself, but has
failed to add his son under his coverage.
The Father testified that he could have
provided health care coverage for his whole
family for an additional $119 per
month. . . . The Father submitted into
evidence his most recent pay-stub, which
listed deductions from his gross pay
including child support obligation, health
care coverage premium, federal and state
taxes, Social Security, and a deduction to
pay the trustee under his Chapter 13
bankruptcy plan.
At the conclusion of the hearing, the trial court found that
while health care coverage was "available to [father] at a
'reasonable cost' as defined by statute, . . . the burden on
[him] is unduly burdensome . . . ." 	Accordingly, the trial
court dismissed the Motion to Show Cause and deleted the health
care coverage requirement from the April 22, 1998 support order.
II.
On appeal, the Division contends the trial court erred in
deleting the provision for health care coverage from the
underlying support order. 	The Division argues that father did
not appeal the original support order requiring health care
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coverage, that the issue of modification was not properly before
the trial court in the contempt proceedings, and that the trial
court did not have authority to retroactively modify the
underlying support order.
In awarding child support, the trial court has the
authority to "order that support be paid for any child of the
parties" and "order that any party provide health care
coverage." 	Code § 20-124.2(C). 	Additionally, "[t]he court
shall have the continuing authority and jurisdiction to make any
additional orders necessary to effectuate and enforce any order
entered pursuant to this section . . . including the authority
to punish as contempt of court any willful failure of a party to
comply with the provisions of the order." 	Code § 20-124.2(C).
Thus, inherent in its power to order support for the maintenance
of the parties' minor children, the trial court "'has the
authority to hold [an] offending party in contempt for acting in
bad faith or for willful disobedience of its order.'" 	Alexander
v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d 666, 669 (1991)
(quoting Carswell v. Mesterson, 224 Va. 329, 332, 295 S.E.2d
899, 901 (1982)).
"In a show cause hearing, the moving party need only prove
that the offending party failed to comply with an order of the
trial court." 	Id. (citing Frazier v. Commonwealth, 3 Va. App.
84, 87, 348 S.E.2d 405, 407 (1986)). 	"The offending party then
has the burden of proving justification for his or her failure
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to comply." 	Id. (citing Frazier, 3 Va. App. at 87, 348 S.E.2d
at 407). 	"[T]he inability of an alleged contemner, without
fault on his part, to tender obedience to an order of court, is
a good defense to a charge of contempt." 	Laing v. Commonwealth,
205 Va. 511, 514, 137 S.E.2d 896, 899 (1964) (citation omitted);
see also Barnhill v. Brooks, 15 Va. App. 696, 704, 427 S.E.2d
209, 215 (1993) ("A trial court may hold a support obligor in
contempt for failure to pay where such failure is based on
unwillingness, not inability, to pay." (emphasis added)).
In the instant case, while the trial court had authority,
in its discretion, to find that the cost of health care coverage
was "unduly burdensome" and that, for that reason, father was
not in contempt, the trial court could not, without notice to
the Division, delete the health care coverage provision from the
underlying support order. 	It is well established that a trial
court "may not retroactively modify a child support decree to
cancel a support arrearage or to relieve a parent of an accrued
support obligation." 	Bennett v. Commonwealth, Dep't of Soc.
Serv., 22 Va. App. 684, 696, 472 S.E.2d 668, 674 (1996) (citing
Cofer v. Cofer, 205 Va. 834, 838-39, 140 S.E.2d 663, 666-67
(1965); Taylor v. Taylor, 10 Va. App. 681, 683-84, 394 S.E.2d
864, 866 (1990)).
Past due installments become vested and are
not subject to change. 	A court may only
modify a support order to be effective
prospectively. 	The order may be made
effective "with respect to any period during
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which there is a pending petition for
modification, but only from the date that
notice of such petition has been given to
the responding party." 	The court may modify
its support order upon motion of any party
in interest or upon its own motion.
Id. (citations omitted) (emphasis added).
In the ordinary case, any party in interest may file a
petition seeking to modify the support order and the responding
party will be afforded an opportunity to present evidence in
opposition to the proposed modification. 	Where there is a
"pending petition for modification," the trial court has the
statutory authority to modify the support order, "but only from
the date that notice of such petition has been given to the
responding party." 	Code § 20-108.2
In the instant case, father did not appeal the April 22,
1998 support order and never filed any petition for
modification. 	The sole issue before the trial court was whether
2 Code § 20-108 provides in part:
The court may . . . on petition of
either of the parents, or on its own motion
. . . revise and alter such decree
concerning the care, custody, and
maintenance of the children and make a new
decree concerning the same, as the
circumstances of the parents and the benefit
of the children may require. . . .
No support order may be retroactively
modified, but may be modified with respect
to any period during which there is a
pending petition for modification, but only
from the date that notice of such petition
has been given to the responding party.
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father was in contempt for "acting in bad faith" or for "willful
disobedience" of the trial court's support order. 	See
Alexander, 12 Va. App. at 696, 406 S.E.2d at 901. 	Although the
trial court found that father was not in contempt, it exceeded
its authority in the contempt proceedings by retroactively
modifying the underlying support order. 	See Code § 20-108.
Notice must be given to the Division--just as any other
"responding party"--that the obligor seeks a modification of the
support obligation, including the provision of "health care
coverage" under Code § 20-124.2(C). 	See, e.g., Bennett, 22 Va.
App. at 696, 472 S.E.2d at 674 (holding that the prohibition
against retroactive modification applies to a decrease and an
increase in support). 	Although the evidence supports the trial
court's finding that father was not in contempt, it erred in
retroactively modifying the underlying support order without
prior notice to the Division.3 Accordingly, we reverse and
remand for further proceedings consistent with this opinion.
Reversed and remanded.
3 Whether the trial court had authority to prospectively
modify the underlying support order, deleting the requirement of
providing health care coverage from the date of the ore tenus
hearing forward, is not before us. 	In its "Objections" to the
trial court's order, the Division conceded that "an order may
only be modified prospectively." 	The issue of prospective
modification was not before the trial court, and we do not
address it here. 	See Rule 5A:18; Commonwealth, Dep't of Soc.
Serv. v. Farmer, ___ Va. App. ___, ___, ___ S.E.2d ___, ___
(2000).
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