Emancipation immaterial to changing pendente lite order

Where husband seeks to modify a pendente lite order concerning his child support obligation, the fact that the children are now emancipated does not bar modification.

A pendente lite order may be modified at any time while the divorce action is pending.

Overview

When wife filed for divorce in November 2015, the parties had two minor children. One child was emancipated in October 2017, the other in November 2019.

In June 2016, this court entered a pendente lite order (PL order) granting wife primary physical custody of the two children and ordering husband to pay $1,300 per month in child support while the divorce was pending. In January 2017, husband filed a motion to modify his child support obligation. In July 2020, he moved to amend his motion to modify.

The court granted the motion over wife’s objection. Wife argues that the court lacks jurisdiction to modify the PL order because the children are now emancipated. “Husband posits that, because pendente lite orders are interlocutory in nature, there are no limits to modifying them during the pendency of the divorce.” The court took the issue under advisement and now issues its ruling.

Modification

“The interplay between emancipation and power to modify a pendente lite child support order during the pendency of a case is an unprecedented issue that the Court must navigate. …

“Generally, a court may retroactively modify a pendente lite order. … ‘A pendente lite order is not final, and is subject to modification while the circuit court retains jurisdiction over the case. If a pendente lite award is still in effect and subject to modification, “the proceedings” are open and ongoing.’ …

“In the context of spousal support, the Virginia Supreme Court has held that, because of the interlocutory nature of pendente lite orders, the ‘circuit court has the equitable power to retroactively correct errors in interlocutory orders during the pendency of the lawsuit.’ … However, whether to retroactively modify pendente lite spousal support prior to the entry of a final decree is a decision squarely within the Court’s discretion. …

“While it would logically flow that the holding on pendente lite spousal support would easily translate to child support, the nuance of termination of child support due to emancipation is a unique wrinkle in the fabric of the issue. This is because the Court only has continuing jurisdiction of final child support orders during the child’s infancy (unless otherwise provided by statute or contract). …

“Nonetheless, given the interlocutory nature of pendente lite orders, the Court finds that such orders may be modified during the pendency of the case regardless of the emancipation of the children.

“In reaching this conclusion, the Court relies on the statutory language that such orders shall have no presumptive effect when adjudicating the underlying case. Further, such a determination logically flows from a practical standpoint and in conjunction with the equitable nature of divorce actions.

“This is because in practice, pendente lite hearings are allotted limited time on the Court’s docket and involve truncated issues of the divorce. Hence, they are not determinative of the underlying case, at which time the Court will ostensibly have heard the entirety of the evidence. For these reasons, the Court finds that, so long as the divorce action is pending before it, any pendente lite order is subject to modification.

“With respect to Husband’s Motion to Modify heard January 13, 2021, as stated on the record, the Court did not find sufficient evidence of a material change in circumstances to amend the PL Order at that time as it relates to the Husband’s request to amend for his short lived period of unemployment, and the Court will not revisit this issue at the final hearing.

“However, Husband may present such evidence and argument at the final trial scheduled to commence March 15, 2021 as to whether a modification is appropriate as set forth in his July 2, 2020 request for relief that was deemed filed as of September 25, 2020. At that time, arrearages may also be addressed and the Court may consider requests for attorney’s fees and costs.”

Morales v. Morales, Case No. CL00097255-00, Feb. 10, 2021, 20th Cir. Ct. (Irby). William R.F. Conners, John C. Whitbeck Jr. for the parties. VLW 021-8-026, 4 pp.