Opinion
Record No. 2228-92-4
June 22, 1993
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY ROSEMARIE ANNUNZIATA, JUDGE.
(Sebastian A. Kiss, pro se, on brief).
(Donne L. Colton, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
Sebastian A. Kiss appeals an order of the circuit court, ruling that a family court judge had no jurisdiction to reduce his child support payment, and restoring the payment to $150 per week. Kiss contends that the fact that the family court judge entered an order reducing his child support payment to $177 per month should "estop the Circuit Court from finding him in arrears." He also argues that considerations of equity and fairness should require the circuit court to honor the family court's reduction, because if he had known that jurisdiction lay in the circuit court, he would have filed his petition for abatement in that court. He asks that the appearance of both parties before the family court, with no objection by either party, be considered the equivalent of a transfer of jurisdiction. In the alternative, Kiss asks this Court to order the circuit court to abate his child support payments because he is unemployed.
Appellee Sue McDonald asserts that the family court judge had no authority to hear the petition for abatement. The case was not referred by the designated circuit court pursuant to Code § 20-96.1(B). Nor did the family court have the jurisdiction "otherwise conferred on the juvenile and domestic relations district courts." Id. Under Code § 16.1-244(A), the juvenile and domestic relations district court was divested of jurisdiction upon the filing of a suit for divorce in which the support of a child was at issue in July 1989.
Questions of jurisdiction can be raised at any time. Owusu v. Commonwealth, 11 Va. App. 671, 672, 401 S.E.2d 431, 431 (1991). Subject matter jurisdiction cannot be conferred as a result of either party failing to raise the issue. Parra v. Parra, 1 Va. App. 118, 122, 336 S.E.2d 157, 159 (1985). The circuit court judge correctly determined that the family court was without jurisdiction to reduce child support, as no referral had been made to the family court under Code § 20-96.1(B). Under Code § 16.1-244(A), juvenile and domestic relations district court jurisdiction ceased in July 1989. Thus, the abatement order entered on August 19, 1991 was of no force and effect.
Kiss asks that we order the circuit court to abate his child support obligation due to his unemployment. The circuit court found an arrearage of $5,680.68 and entered judgment against Kiss for that amount. The court did abate payments for ninety days, during which time Kiss was to seek gainful employment.
Child support payments become vested as they accrue, and the court has no authority to make any changes on past-due installments. Taylor v. Taylor, 10 Va. App. 681, 683, 394 S.E.2d 864, 865-66 (1990). Under Code § 20-108, a support order may be modified with respect to any period during which there is a pending petition for modification. Here, however, there was no petition pending in a court with jurisdiction until July 21, 1992. The circuit court's order of October 2, 1992, based upon an August 27, 1992 hearing, determined the arrearages for the preceding twelve months, which arose as a result of the family court's ineffective August 19, 1991 order. Under Taylor and Code § 20-108, the court acted properly and we are without authority to order the abatement he requests as to eleven months of that year. We do not find the court's refusal to abate the child support obligation from July 1992 to August 1992, while the petition for modification was pending, to be an abuse of discretion. See Young v. Young, 3 Va. App. 80, 81, 348 S.E.2d 46, 47 (1986).
For the reasons stated, we affirm the trial court's decision.
Affirmed.