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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