COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McCullough and Senior Judge Haley Argued at Chesapeake, Virginia

DAVID MILOT OPINION BY v. Record No. 0937-14-1 J UDGE JAMES W. HALEY, JR. DECEMBER 23, 2014 GLENDA A. MILOT

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Mary Jane Hall, Judge Michael D. Kmetz for appellant. Jeffrey M. Summers for appellee.

I. Code § 20-108.1(B) states in pertinent pa rt that: “Liability for support shall be determined retroactively for the period measured from the date that the proceeding was commenced by the filing of an action with any court provided the complainant exercised due diligence in the service of the respondent . . . .” (Emphasis added.) Code § 8.01-335(B) authorizes a circuit court to dismiss any pending civil action “wherein for more than three years there has been no order or proceeding . . . .” The issue here for resolution is whether a circuit court, rely ing on Code § 20-108.1(B), may order retroactive child support (a nd 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. We hold the circuit court may not for the reasons that follow.PUBLISHED- 2 - II. In February 2002, wife filed for divorce in the Circuit Court of Halifax County. On March 21, 2003, that court entered a pendente lite order for child support for $2,500 per month and thereafter remanded the child support matter to the Halifax County J uvenile and Domestic Relations District Court. That remand apparently only resulted in an order of enfo rcement and referral to the Department of Social Services of the Co mmonwealth. The record does not contain any independent order by the juvenile and domestic relations district cour t setting child support

. On August 22, 2007, the Halifax County Circ uit Court dismissed the divorce action pursuant to Code § 8.01-335(B). In 2012, wife filed a motion in Halifax County Circuit Court to vacate the dismissal order and reinstate the pendente lite order. That motion was denied. Wife appealed, alleging a denial of due process. On October 15, 2013 this Court affirmed the Halifax Count y Circuit Court. See Milot v. Milot, 62 Va. App. 415, 748 S.E.2d 655 (2013). We wrote: “[W]hen appellant’s case was dismissed under Code § 8.01-335(B), he r spousal and child support under the pendente lite order were automatically terminated .” Id. at 423, 748 S.E.2d at 659. Meanwhile, in March 2011, husband filed a divo rce action in the Norf olk Circuit Court. On January 18, 2012, wife filed an answer and c ounter-claim, in which she requested, as here relevant, child support and an award of any arrearages. In its July 18, 2013 letter opinion, the Norfolk Circuit Cour t held that Code § 20-108.1(B) authorized it to order retr oactive child support. The resultant or der reads in part: “The Court of Appeals has determined th at support under the Halifax pendente lite order terminated in August- 3 - of 2007. This Court has determined child support may be retroactive to the 23 rd of August 2007 with the amount being $2,500 per month . . . .” 1 Husband has appealed this ruling, further no ting that wife did not request child support until January 18, 2012 in the Norfolk proceeding. 2
III. The issue presents a question of statutory interpretation, which is a question of law we review de novo. Anthony v. Skolnick-Lozano, 63 Va . App. 76, 83, 754 S.E.2d 549, 552 (2014). See also Virginia Emp’t Comm’n v. Community Alts., Inc., 57 Va. App. 700, 708, 705 S.E.2d 530, 534 (2011) (“‘Pure statutory co nstruction, a matter within th e “core competency of the judiciary,” requires de novo review.’” (quoting Citl and, Ltd. v. Commonwealth ex rel. Kilgore, 45 Va. App. 268, 275, 610 S.E.2d 321, 324 (2005) (citation omitted))). The Norfolk Circuit Court emphasized th e language in Code § 20-108.1(B) regarding “the filing of an action with any court . . .” and stated that “[a] lthough the Halifax complaint for divorce was dismissed for lack of prosecuti on, no evidence was submitted to suggest that Mr. Milot’s obligation to support his children should not conti nue.” But no court order existed compelling that obligation. When the Halifax Ci rcuit Court dismissed th e divorce pursuant to Code § 8.01-335(B), all of the pleadings a nd orders filed therein, including the pendente lite order, were likewise and simu ltaneously dismissed. Milot, 62 Va. App. at 423, 748 S.E.2d at 659. See also 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.”).

1 The order reduced child support proportiona tely between 2007 a nd 2012, as the children reached majority.

2 A second assignment of error was abandone d by husband during oral argument before this Court.- 4 - “A court may not retroactively modify a child support [order ] to cancel a support arrearage or to relieve a parent of an accrued support obligati on.” Bennett v. Commonwealth, 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. Tayl or, 10 Va. App. 681, 683-84, 394 S.E.2d 864, 866 (1990)). The converse is also true. In Bennett, we wrote: A court may only modify a support order to be effective prospectively. . . . We hold that the prohibition announced in Cofer against retroactive modifications to relieve support obligations applies with equal force to preven t a trial court from retroactively modifying its support order to increase a party’s past support obligation. Id. (emphasis in original) (internal citation omitted). Moreover, in each of these three referen ced cases, there existed an ongoing order of support. Here, as noted above, no such orde r existed, because of the Code § 8.01-335(B) dismissal. We hold that to exercise the retroactive authorization set forth in Code § 20-108.1(B) there must be, as a condition precedent, an ex isting and pending cause in a court of competent jurisdiction. Accordingly, we reverse the trial court’s aw ard of child support, ar rearage, and interest between August 27, 2007, the date of the Halifax County Circuit Court dismissal, and January 18, 2012, the date of the request for child support in the Norfolk Circuit Court. We further remand the child support matter to the Norfolk Ci rcuit Court to re-determine any arrearage and interest that may have accrued before A ugust 27, 2007 and subsequent to January 18, 2012.- 5 - Appellant asks this Court to award him attorney’s fees incurred on appeal. See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). On consideration of the record before us, we deny his request. Reversed and remanded.