Cofer v. Cofer

• Decision Date: 08 March 1965
• Citation: 205 Va. 834,140 S.E.2d 663
• Court: Virginia Supreme Court
• Parties: Ruth Audrey Hasemeyer COFER v. Hardy Dashiells COFER.

Page 663

140 S.E.2d 663

205 Va. 834

Ruth Audrey Hasemeyer COFER v. Hardy Dashiells COFER.

Supreme Court of Appeals of Virginia.

March 8, 1965.

Rehearing Denied April 26, 1965.

Jesse M. Johnson, Richmond, (Johnson & Schrieberg, Richmond, on brief), for appellant.

Ivy P. Blue, Jr., Richmond (Blue & Gordon, Richmond, on brief), for appellee.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON and CARRICO, JJ.

EGGLESTON, Chief Justice.

By a decree entered on March 27, 1959, the appellant wife was granted a divorce a vinculo from her husband, Hardy Dashiells Cofer, and awarded the custody of their three infant children. The decree directed the husband to pay the wife the sum of $300 per month, of which $100 was for her maintenance and support and $200 for the maintenance and support of the three children.

By an order entered on February 16, 1960, the husband was relieved of the duty of the support and maintenance of the wife, pursuant to her agreement, but was ordered to pay to her the sum of $255 per month for the continued support of the children.

On July 15, 1963, after proper notice to the appellant wife, the husband filed a petition asking for a modification of the terms of the order last mentioned, because, he said, the wife had moved with the children from Virginia to Pennsylvania, making more expensive his visitation with the children; that he had remarried; that his former income had been reduced; and that he and his former wife had entered into an agreement whereby the support money for the children was to be reduced. He further asked to be relieved of the obligation to pay the sum of $1,325, being the amount in which he was in arrears for the support money of the children under the terms of the former order.

On the same day on which the petition was filed a consent order was entered, reinstating the cause on the docket, permitting the husband to file his petition, and granting the wife 'ten (10) days from July 12, 1963, to answer said petition if she be so advised.' She failed to answer this petition.

On September 4, 1963, the lower court entered an order granting the prayer of the husband's petition and reducing the amount of support money for the infant children from $255 to $175 per month. It also relieved the husband of 'paying any arrearage due' in the support money for the children pursuant to the February 16, 1960 order. This order of September 4 was not endorsed by counsel for the wife nor was he or she notified of the time and place of its presentation for entry.

On September 20 counsel for the wife notified counsel for the husband of her intended motion for an order nullifying and vacating the order entered on September 4, on the ground that it was 'improvidently entered' and without compliance with Rule 2:18 of the Rules of Court. The notice also stated that the wife would ask that the support money for the children 'be substantially increased.'

On November 6, after an ore tenus hearing on this notice, which is not reported in the record, the lower court entered an order refusing to vacate the order of September 4, and continuing the wife's motion for an increase in the support money for the children.

From the order entered on November 6, refusing to vacate the previous order of September 4, the wife has appealed. In her assignments of error she claims that the court erred in entering the order of November 6 denying her motion to vacate the order of September 4, because (1) the latter order was not endorsed by counsel of record for the wife and children nor was notice given to him of the time and place of its presentation for entry as required by Rule 2:18, and (2) the order of September 4 improperly relieved the husband of the payment of accrued support money for the children.

We agree with the first contention of the appellant wife that the order of September 4 was void and should have been vacated on her motion, because it was entered without the required endorsement of counsel and without previous notice to him of its presentation for entry. Rule 2:18 provides: 'Drafts of orders and decrees shall be endorsed by counsel of record or notice given of the time and place of presentation for entry.'

It is true that Rule 2:19 of the Rules of 'situations deemed appropriate,' to 'modify 'istuations deemed appropriate,' to 'modify the requirements' of Rule 2:18. The language of the order of September 4 indicates that the requirements of Rule 2:18 were dispensed with because the wife had 'failed to answer the petition' of the husband within the ten days allotted therefor.

We do not agree that this was a situation in which the lower court should have dispensed with the requirements of the rule. The rights of infants were involved under the terms of the previous order which fixed the allotment of support money for their benefit. The failure of the wife, the mother of the infants, to answer the petition within the allotted time did not justify the court in entering what amounts to a default order against the infants. On the contrary, counsel for the infants should have been given notice of the time and place of presentation for the entry of the order, as required by Rule 2:18, and the opportunity of contesting its entry.

The appellee argues that under the provisions of Rule 2:22 of the Rules of Court the order of September 4 became final and was not thereafter 'subject to be modified or vacated.' ² The ready answer is that this rule is not a limitation on the power and authority of the court to vacate a void order. It is well settled that a void decree or order is a nullity and may on proper application be vacated at any time. 30A Am.Jur., Judgment, § 693, pp. 658, 659; Id., § 697, p. 662; 49 C.J.S. Judgments § 230b, p. 444.

Nor do we agree with the contention of the appellee that this appeal comes too late because it is an attack on the order of September 4, and the appeal from this order was not perfected within the time prescribed by the statute (Code, Repl. Vol. 1957, § 8-463) and the Rules of Court (Rule 5:1, § 4).

This is not an appeal from the order of September 4, but from the order of November 6 refusing to vacate the former order. It is not questioned that the appeal from the order of November 6 was perfected within the prescribed time.

We hold that the lower court erred in entering the order of November 6 in which it refused to vacate the void order of September 4.

The second assignment of error challenges the authority of the court to relieve the husband of the obligation to pay accrued support money, as it did in its order of September 4. While that question would properly be presented to us on a direct appeal from the order of September 4, since under our view that order must be vacated and the validity of such provision is likely to arise during the subsequent proceedings, it will be disposed of on the present appeal.

Whether, in a divorce proceeding, the court has the authority to relieve the delinquent husband of the arrearage in support money for his children, due under the provisions of a previous decree or order, is a question which has not heretofore been presented to us. While there is some conflict of authority on the subject the majority rule is to the effect that, in the absence of statute, payments exacted by the original decree of divorce become vested as they accrue and the court is without authority to make any change as to past due installments. 27B C.J.S. Divorce § 322(1)c, pp. 686, 687; 17A Am.Jur., Divorce and Separation, § 863, p. 50; Schouler on Marriage, Divorce and Separation, 6th Ed., Vol. 2, § 1915, pp. 205, 206.

In the present case apparently the lower court based its authority to relieve the husband of accrued...