Cofer v. Cofer, 140 S.E.2d 663 (Va. 1965). · Go Syfert
Cofer v. Cofer, 140 S.E.2d 663 (Va. 1965). Cases Citing This Book View Copy Cite
235 citation events (92 in the last 25 years) across 13 distinct courts.
Strongest positive: Peter Weidlein v. Mimi C. Weidlein (vactapp, 2015-12-08)
Treatment trajectory · 1967 → 2026 · click a year to view as-of
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Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Peter Weidlein v. Mimi C. Weidlein (5×) also: Cited as authority (quoted), Cited as authority (rule), Cited "see"
Va. Ct. App. · 2015 · quote attribution · 2 verbatim quotes · confidence high
n 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.
examined Cited as authority (verbatim quote) Peter Weidlein v. Mimi C. Weidlein (5×) also: Cited as authority (quoted), Cited as authority (rule), Cited "see"
Va. Ct. App. · 2015 · quote attribution · 2 verbatim quotes · confidence high
n 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.
examined Cited as authority (verbatim quote) Peter Weidlein v. Mimi C. Weidlein (10×) also: Cited as authority (quoted), Cited as authority (rule), Cited "see"
Va. Ct. App. · 2015 · quote attribution · 4 verbatim quotes · confidence high
n 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.
examined Cited as authority (verbatim quote) Shoup v. Shoup (6×) also: Cited "see"
Va. Ct. App. · 2001 · quote attribution · 2 verbatim quotes · confidence high
ayments 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.
examined Cited as authority (verbatim quote) Dale Chester Bolesta v. Commonwealth of Virginia (2×) also: Cited as authority (quoted)
Va. Ct. App. · 1998 · signal: see, e.g. · quote attribution · 2 verbatim quotes · confidence high
it is well settled that a void decree or order is a nulhty and may on proper application be vacated at any time.
examined Cited as authority (quoted) Bobby Gray Baldwin v. Commonwealth (2×)
Va. Ct. App. · 1997 · signal: see, e.g. · quote attribution · 2 verbatim quotes · confidence low
it is our opinion that our statute does not authorize the court to relieve the delinquent husband of the payment of accrued installments for the support of his children due under the provisions of a former decree or order.
discussed Cited as authority (rule) Evan Elijah Paxton v. Jennifer Sue Paxton
Va. Ct. App. · 2023 · confidence medium
See, e.g., Rosillo v. Winters, 235 Va. 268, 271-73 (1988) (abuse of discretion to enter order without notice when attorneys disagreed over the contents of the draft order); Iliff v. Richards, 221 Va. 644, 649 (1980) (abuse of discretion when a cross claim was eliminated by order entered without notice to cross claimant); Cofer v. Cofer, 205 Va. 834, 836-37 (1965) (abuse of discretion where child support was eliminated by order entered without notice), overruled on other grounds, Singh v. Mooney, 261 Va. 48 (2001).
cited Cited as authority (rule) Timothy M. Barrett v. Commonwealth of Virginia
Va. Ct. App. · 2020 · confidence medium
Bennett, 22 Va. App. 684, 696 (1996) (citing Cofer v. Cofer, 205 Va. 834, 838-39 (1965); Taylor v. Taylor, 10 Va. App. 681, 683-84 (1990)).
discussed Cited as authority (rule) David Milot v. Glenda A. Milot
Va. Ct. App. · 2014 · confidence medium
“A court may not retroactively modify a child support [order] to cancel a support arrearage or to relieve a parent of an accrued support obligation.” 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); *136 Taylor v. Taylor, 10 Va.App. 681, 683-84 , 394 S.E.2d 864, 866 (1990)).
discussed Cited as authority (rule) Adcock v. COM., DEPT. OF SOCIAL SERVICES
Va. · 2011 · confidence medium
Support payments, required by an order or decree, "become vested as they accrue and the court is without authority to make any change as to past due installments." Cofer v. Cofer, 205 Va. 834, 838 , 140 S.E.2d 663, 666 (1965).
cited Cited as authority (rule) Timothy M. Barrett v. Commonwealth of Virginia, Department of Social Services, etc.
Va. Ct. App. · 2011 · confidence medium
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).
discussed Cited as authority (rule) Diane Spreadbury v. Peter E. Spreadbury
Va. Ct. App. · 2010 · confidence medium
Under Code § 20-103(A), at any time pending a suit for divorce and in the discretion of the trial court, the court has authority “to compel a spouse to pay any sums necessary for the maintenance and support of the [other] spouse.” “[C]ourt-ordered support becomes vested when it accrues.” Smith v. Smith, 4 Va. App. 148, 152 , 354 S.E.2d 816, 818 (1987) (citing Cofer v. Cofer, 205 Va. 834, 839 , 140 S.E.2d 663, 666 (1965)).
discussed Cited as authority (rule) Miller v. Miller
Fairfax Cir. Ct. · 2006 · confidence medium
Moorman v. Moorman, 62 Va. Cir. 497, 501 (Roanoke 2003) (absent some showing of fraud, child and spousal support obligations cannot be retroactively modified), citing Cofer v. Cofer, 205 Va. 834, 839 (1965) (Va. Code § 20-108 does not permit courts to relieve a delinquent parent of an obligation accrued under a previous court order), overruled on other grounds by Singh v. Mooney, 261 Va. 48, 53-54 (2001).
cited Cited as authority (rule) Larkins v. Larkins
Fairfax Cir. Ct. · 2003 · confidence medium
Cofer v. Cofer, 205 Va. 834, 838-39 , 140 S.E.2d 663, 666-67 (1965); Richardson v. Moore, 217 Va. 422 , 229 S.E.2d 864 (1976); Alig v. Alig, 220 Va. 80 , 255 S.E.2d 494 (1979); Va. Code § 20-108.
discussed Cited as authority (rule) Kaminsky v. Kaminsky
vacc · 2002 · confidence medium
Cofer v. Cofer, 205 Va. 834, 838-39 , 140 S.E.2d 663, 666-67 (1965); Richardson v. Moore, 217 Va. 422 , 229 S.E.2d 864 (1976); Alig v. Alig, 220 Va. 80, 255 S.E.2d 494 (1979); Commonwealth v. Skeens, 18 Va. App. 154, 158 , 442 S.E.2d 432 (1994); Va. Code § 20-112.
examined Cited as authority (rule) Shoup v. Shoup (4×)
Va. Ct. App. · 2001 · confidence medium
Code § 20-108; 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)).
cited Cited as authority (rule) Small v. Small
vacc · 2001 · confidence medium
Cofer v. Cofer, 205 Va. 834, 839 (1965); Smith v. Smith, 4 Va. App. 148, 152 (1987).
discussed Cited as authority (rule) Singh v. Mooney
Va. · 2001 · confidence medium
Wyne Excavating, Inc., 260 Va. 137, 147 , 530 S.E.2d 148, 154 (2000)(entry of final order without endorsement of counsel not an abuse of discretion); Davis v. Mullins, 251 Va. 141, 148 , 466 S.E.2d 90, 93-94 (1996)(exercising discretion to dispense with counsel’s endorsement proper); Smith v. Stanaway, supra (dispensing with notice and endorsement requirements not abuse of discretion); Rosillo v. Winters, supra (dispensing with notice requirement abuse of discretion); Iliff v. Richards, 221 Va. 644, 649 , 272 S.E.2d 645, 648 (1980)(in exercise of discretion, court should have required notice…
discussed Cited as authority (rule) COM. EX REL. GRAHAM v. Bazemore
Va. Ct. App. · 2000 · confidence medium
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)).
discussed Cited as authority (rule) Roger W. Frydrychowski v. Cheryl J. Frydrychowski
Va. Ct. App. · 1997 · confidence medium
Bennett, 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, 865-66 (1990)).
discussed Cited as authority (rule) Burfoot v. Commonwealth
Va. Ct. App. · 1996 · confidence medium
Additionally, “‘a void decree or order is a nullity and may on proper application be vacated at any time.’ ” Matthews, 216 Va. at 359 , 218 S.E.2d at 540 (emphasis added) (quoting Cofer v. Cofer, 205 Va. 834, 837 , 140 S.E.2d 663, 665-66 (1965)).
cited Cited as authority (rule) Charles D. Bennett v. Commonwealth, DSS
Va. Ct. App. · 1996 · confidence medium
Cofer v. Cofer, 205 Va. 834 , 838-39 140 S.E.2d 663, 666-67 (1965); Taylor v. Taylor, 10 Va. App. 681 , - 12 - 683-84, 394 S.E.2d 864, 866 (1990).
discussed Cited as authority (rule) Bennett v. COM., DEPT. OF SOCIAL SERVICES (2×)
Va. Ct. App. · 1996 · confidence medium
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).
discussed Cited as authority (rule) In re Dwyer
Va. Ct. App. · 1994 · confidence medium
For this reason, we reverse the judgment of the trial court. “[A] void decree or order is a nullity and may on proper application be vacated at any time.” Cofer v. Cofer, 205 Va. 834, 837 , 140 S.E.2d 663, 665-66 (1965).
cited Cited as authority (rule) Commonwealth Ex Rel. Comptroller of Virginia v. Skeens
Va. Ct. App. · 1994 · confidence medium
Cofer v. Cofer, 205 Va. 834, 838-39 , 140 S.E.2d 663, 666-67 (1965); Code § 20-112.
cited Cited as authority (rule) Kelley v. Kelley
Va. Ct. App. · 1993 · confidence medium
Id. at 95, 353 S.E.2d at 758 ; see also Jones v. Willard, 224 Va. 602, 607 , 299 S.E.2d 504, 508 (1983); Cofer v. Cofer, 205 Va. 834, 836-37 , 140 S.E.2d 663, 665-66 (1965).
discussed Cited as authority (rule) Taylor v. Taylor
Va. Ct. App. · 1992 · confidence medium
Id. at 424, 229 S.E.2d at 866 (quoting Cofer v. Cofer, 205 Va. 834, 838 , 140 S.E.2d 663, 666 (1965)). [I]t is the obligation of [the obligated party] to pay the specified amounts according to the terms of the decree and . . . he should not be permitted to vary these terms to suit his convenience. [If conditions change] ... his remedy is to apply to the court for . . . relief. *646 Id. at 424, 229 S.E.2d at 866 (quoting Newton v. Newton, 202 Va. 515, 519, 118 S.E.2d 656, 659 (1961)).
discussed Cited as authority (rule) Smith v. Stanaway (2×)
Va. · 1991 · confidence medium
For example, in Cofer v. Cofer, 205 Va. 834, 836 , 140 S.E.2d 663, 665 (1965), the rights of infants to support money was affected by an order entered without notice to counsel for the infants.
cited Cited as authority (rule) Brown v. Brown
Va. · 1990 · confidence medium
Cofer v. Cofer, 205 Va. 834, 838-39 , 140 S.E.2d 663, 666-67 (1965).
cited Cited as authority (rule) Westerberg v. Westerberg
Va. Ct. App. · 1989 · confidence medium
Cofer v. Cofer, 205 Va. 834, 837 , 140 S.E.2d 663, 665-66 (1965); Division of Social Services v. Unknown Father, 2 Va. App. 420, 428, 345 S.E.2d 533, 537 (1986).
discussed Cited as authority (rule) Goodpasture v. Goodpasture (2×)
Va. Ct. App. · 1988 · confidence medium
Code § 20-108; Cofer v. Cofer, 205 Va. 834, 839, 140 S.E.2d 663, 667 (1965).
cited Cited as authority (rule) Van Heuven v. Van Heuven
Fairfax Cir. Ct. · 1988 · confidence medium
Cofer v. Cofer, 205 Va. 834, 838 , 140 S.E.2d 663, 666 (1965).
cited Cited as authority (rule) Rosillo v. Winters
Va. · 1988 · confidence medium
Rule 1:13; Cofer v. Cofer, 205 Va. 834, 836 , 140 S.E.2d 663, 665 (1965).
discussed Cited as authority (rule) Rook v. Rook
Va. · 1987 · confidence medium
Corr. v. Crowley, 227 Va. 254, 260-61 , 316 S.E.2d 439, 442-43 (1984); Slaughter v. Commonwealth, 222 Va. 787, 791, 284 S.E.2d 824, 826 (1981); Matthews v. Commonwealth, 216 Va. 358, 359-61 , 218 S.E.2d 538, 539-40 (1975); Cofer v. Cofer, 205 Va. 834, 836-37 , 140 S.E.2d 663, 665-66 (1965).
cited Cited as authority (rule) Cass v. Lassiter
Va. Ct. App. · 1986 · confidence medium
Cofer v. Cofer, 205 Va. 834, 838 , 140 S.E.2d 663, 666 (1965).
cited Cited as authority (rule) Carper v. Carper
Va. · 1984 · confidence medium
Cofer v. Cofer, 205 Va. 834, 838 , 140 S.E.2d 663, 666 (1965).
discussed Cited as authority (rule) Virginia Department of Corrections v. Crowley
Va. · 1984 · confidence medium
One of the “reasons stated in defendant’s pleading” and restated on appeal was that the Commonwealth’s motions were time-barred under Rule hi. 1 The appellees overlook the fact that we have expressly held that “this rule is not a limitation on the power and authority of the court to vacate a void order.” Cofer v. Cofer, 205 Va. 834, 837 , 140 S.E.2d 663, 665-66 (1965).
discussed Cited as authority (rule) Scott v. Sylvester
Va. · 1983 · confidence medium
The reasoning underlying this rule is that each installment becomes a vested property right the moment it falls due and, as such, is immune from modification; Cofer v. Cofer, 205 Va. 834, 839 , 140 S.E.2d 663, 667 (1965); accord Fearon v. Fearon, 207 Va. 927, 932 , 154 S.E.2d 165, 168 (1967).
discussed Cited as authority (rule) Dorn v. Dorn
Va. · 1981 · confidence medium
These decisions are the progeny of Cofer v. Cofer, 205 Va. 834, 838 , 140 S.E.2d 663, 666 (1965), in which we held that Code § 20-108, authorizing a court to amend a divorce decree, was designed “to operate prospectively and relates to future provisions for support” and did not grant courts the authority to modify support orders retroactively.
cited Cited as authority (rule) Iliff v. Richards
Va. · 1980 · confidence medium
Cofer v. Cofer, 205 Va. 834, 836-37 , 140 S.E.2d 663, 665 (1965).
discussed Cited as authority (rule) Richardson v. Moore
Va. · 1976 · confidence medium
While there is contrary authority in other jurisdictions, we adhere to rules respecting child support awards which we adopted earlier: “[I]n 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.” Cofer v. Cofer, 205 Va. 834, 838 , 140 S.E.2d 663, 666 (1965). “[I]t is the obligation of the divorced husband to pay the specified amounts according to the terms of the decree and ... he should not be permitted to vary these terms to suit his convenience. [If cond…
cited Cited as authority (rule) Matthews v. Commonwealth
Va. · 1975 · confidence medium
Our holding in Cofer v. Cofer, 205 Va. 834, 837 , 140 S.E.2d 663, 665-66 (1965) is controlling: “[The 21-day] rule is not a limitation on the power and authority of the court to vacate a void order.
discussed Cited as authority (rule) Eaton v. Eaton
Va. · 1975 · confidence medium
The rationale of that principle is that the “statute relates to future installments for the support of children and that the past installments become vested and are immune from change.” Cofer v. Cofer, 205 Va. 834, 839 , 140 S.E.2d 663, 667 (1965); accord, Carter v. Carter, 215 Va. 475 , 211 S.E.2d 253 (1975); Fearon v. Fearon, 207 Va. 927 , 154 S.E.2d 165 (1967).
discussed Cited as authority (rule) State Highway Commissioner v. Easley (2×)
Va. · 1974 · confidence medium
Compliance with this rule . . . may be modified or dispensed with by the court in its discretion." The Commissioner relies on Cofer v. Cofer, 205 Va. 834, 836 , 140 S.E.2d 663, 665 (1965), which held that orders entered in violation of Rule 1:13 are void, unless the trial court could properly exercise its discretion to dispense with the requirements.
discussed Cited "see" James David Everett, II v. Kathryn Jean Tawes (2×)
Va. Ct. App. · 2018 · signal: see · confidence high
See Cofer v. Cofer, 205 Va. 834, 839 , 140 S.E.2d 663, 666 (1965); Smith v. Smith, 4 Va. App. 148, 152 , 354 S.E.2d 816, 818 (1987).
discussed Cited "see" Kathryn Jean Tawes v. James David Everett, II (2×)
Va. Ct. App. · 2018 · signal: see · confidence high
See Cofer v. Cofer, 205 Va. 834, 839 , 140 S.E.2d 663, 666 (1965); Smith v. Smith, 4 Va. App. 148, 152 , 354 S.E.2d 816, 818 (1987).
discussed Cited "see" Virostko v. Virostko (2×)
Va. Ct. App. · 2012 · signal: see · confidence high
See Goodpasture v. Good- *828 pasture, 7 Va.App. 55, 58 , 371 S.E.2d 845, 847 (1988) (“Past due support installments become vested as they accrue and are thereafter immune from change.” (citing Cofer v. Cofer, 205 Va. 834, 839 , 140 S.E.2d 663, 666-67 (1965))).
examined Cited "see" Adcock v. COM., DEPT. OF SOCIAL SERVICES (4×)
Va. Ct. App. · 2010 · signal: see · confidence high
See Cofer v. Cofer, 205 Va. 834 , 140 S.E.2d 663 (1965) (permitting the trial court to modify future support payments).
cited Cited "see" Moorman v. Moorman
Roanoke County Cir. Ct. · 2003 · signal: see · confidence high
See Cofer v. Cofer, 205 Va. 834, 839 (1965), overruled on other grounds by Singh v. Mooney, 261 Va. 48, 53-54 (2001).
discussed Cited "see" Green v. Barnes (2×)
Portsmouth Cir. Ct. · 2001 · signal: see · confidence high
See Cofer v. Cofer, 205 Va. 834 , 140 S.E.2d 663 (1965), and Matthews v. Commonwealth, 216 Va. 358 , 218 S.E.2d 538 (1975).
Retrieving the full opinion text from the archive…
Ruth Audrey Hasemeyer Cofer
v.
Hardy Dashiells Cofer
Record 5884.
Supreme Court of Virginia.
Mar 8, 1965.
140 S.E.2d 663
Jesse M. Johnson (Johnson & Schrieberg, on brief), for the appellant., Ivy P. Blue, Jr. (Blue & Gordon, on brief), for the appellee.
Eggleston, Spratley, Buchanan, Snead, I'Anson, Carrico.
Cited by 97 opinions  |  Published
3 passages pin-cited by 5 cases
Pinpoint authority: #20,874 of 633,719
Citer courts: Court of Appeals of Virginia (7)
Eggleston, C. J.,

delivered the opinion of the court.

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[*836] 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 Court [1] vests in the court the discretion in “situations deemed appropriate,” to “modify the requirements” of Rule 2:18. The language of the order of[*837] 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., Judgments, § 693, pp. 658, 659; Id., § 697, p. 662; 49 C. J. S., Judgments, § 230-b, 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[*838] 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 payments of support money on Code (Repl. Vol. 1960), § 20-108. This section reads: “The court may, from time to time after decreeing as provided in the preceding section, on petition of either of the parents, or on its own motion or upon petition of any probation officer or superintendent of public welfare, which petition shall set forth the reasons for the relief sought, 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.” (Emphasis added.)

It wifi be observed that this section authorizes the court to “revise and alter” a previous 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.” In the present case the provision in the order of September 4, relieving the husband of past due installments for support money, does not “revise and alter” the previous decree relating to these matters, nor does it “make a new decree concerning the same.” It relieves the delinquent husband of the accrued obligation which he has incurred under the terms of a previous order. This is not, we think, within the purview of the section which is designed to operate prospectively and relates to future provisions for support.

Statutes of this character are found in many of the States and while there is a diversity of opinion on the point, the majority view is that[*839] they do not authorize the court to modify its decree retroactively and relieve the husband of the obligation to pay past due installments for the support of his minor children. See 27B C. J. S., Divorce, § 322(1)-c, pp. 686, 687, 688; 17A Am. Jur., Divorce and Separation, § 863, p. 50; Annotation: 6 A. L. R. 2d, pp. 1280, 1281; Id., p. 1288; Id., p. 1292, and cases there collected; Schouler on Marriage, Divorce and Separation, 6th Ed., Vol. 2, § 1915, pp. 205, 206.

In accord with the majority view, it has been held in a number of States that a statute authorizing the court to “amend, revise and alter,” or to “modify or change,” a previous decree does not permit the cancelation of arrears in support money. See Annotation: 6 A. L. R. 2d, p. 1288; Id., p. 1292. For cases taking the opposite view see Annotation: 6 A. L. R. 2d, p. 1292.

The rationale of the cases taking the majority view is that such a statute relates to future installments for the support of children and that the past due installments become vested and are immune from change. See Rakes v. Ferguson, 147 W. Va. 660, 130 S. E. 2d 102, 106; Morgan v. Morgan, 275 Ala. 461, 156 So. 2d 147, 150.

The reasoning of the cases taking the minority view is that the party to whom payments for child support are made has no absolute property right in past due and unpaid installments. Hence they are subject to change. Wilson v. Wilson, 143 Me. 113, 56 A. 2d 453, 456.

The recent case of Rakes v. Ferguson, supra, dealt with a situation quite similar to that with which we are here concerned. Section 15, Article 2, Chapter 48 of the West Virginia Code of 1931, as amended (Code of 1955, § 4715), authorizes the trial court in a divorce proceeding to “revise or alter” a decree “concerning the care, custody, education and maintenance of the children, and make a new decree concerning the same.” It was held that such a provision “pertains to future installments for the support of the children” and “does not authorize the court to alter or cancel accrued installments” for such support. It was further held that installments for the support of children, like installments for alimony, become vested and may be set aside only for fraud or other judicially cognizable and harmful circumstance in the procurement of the decree. 130 S. E. 2d at 106.

It is our opinion that our statute (Code, § 20-108, supra) does not authorize the court to relieve the delinquent husband of the payment of accrued installments for the support of his children due under the provisions of a former decree or order.

The decree appealed from is reversed and the cause remanded to the[*840] lower court for further proceedings in conformity with the views here expressed.

Counsel for the appellant wife should be allowed a fee of $200 for services in prosecuting this appeal.

Reversed and remanded.

1

“Rule 2:19. Enforcement of Rules 2:17 and 2:18.

“When counsel are numerous, or when some are no longer interested, or in other situations deemed appropriate, the court may in its discretion modify the requirements of Rules 2:17 and 2:18.”

2

“Rule 2:22. Finality of Decrees.

“All final decrees, irrespective of terms of court, shall remain under the control of the trial court, and subject to be modified or vacated, for twenty-one (21) days after the date of entry, and no longer.”