concurring and dissenting.
I concur in Parts I and II of the opinion, but I dissent from Part III because I disagree with the majority opinion’s view that the law forecloses Robert Reid (the payor spouse) from seeking restitution of money paid to his former wife as spousal support.1 *1235Whenever a decision of this Court sets aside an initial spousal support award that has not been stayed by the trial judge, I believe the trial judge, upon a proper request, must exercise discretion to determine on a case-by-case basis whether restitution is warranted.
It has long been the rule in Virginia that if, pending an appeal, the appellant has paid the judgment that is being appealed, upon reversal of the judgment, the appellant is entitled to restitution of the money so paid. Flemings v. Riddick’s Ex’r, 46 Va. (5 Gratt.) 272, 278 (1848); Jones v. Bradshaw, 57 Va. (16 Gratt.) 355, 362 (1863); Green & Miller v. Brengle, 84 Va. 913, 916, 6 S.E. 603, 604-05 (1888). The same general rule is found in other jurisdictions. See, e.g., Shanahan v. Shanahan, 80 A.D.2d 738, 739, 437 N.Y.S.2d 169, 171 (1981); Guaranty Sav. Assurance Co. v. National American Bank, 407 So. 2d 795, 797 (La. Ct. App. 1981); State ex rel. State Highway Comm’n v. Morganstein, 588 S.W.2d 472, 476-77 (Mo. 1979); Currie v. Drake, 550 S.W.2d 736, 740-41 (Tex. Civ. App. 1977); Rhodes v. Sigler, 44 Ill. App. 3d 375, 377-78, 357 N.E.2d 846, 849 (1976).
The Minnesota Court of Appeals addressed a similar issue in Mathison v. Clearwater County Welfare Department, 412 N.W.2d 812 (Minn. Ct. App. 1987). In that case, a father had been ordered through a default judgment to reimburse the county welfare department for child support payments. He made some payments, but petitioned for full restitution after disproving paternity. In upholding the trial court’s award of restitution, the appeals court relied on the Restatement of Restitution § 74 (1937), which provides:
A person who has conferred a benefit upon another in compliance with a judgment ... is entitled to restitution if the *1236judgment is reversed . . unless restitution would be inequitable . . if the judgment is modified, there is a right to restitution of the excess.
Id. (quoted in part in Mathison, 412 N.W.2d at 813).2 Distinguishing a case which held that support orders are enforceable until modified, the Minnesota court ruled that the prior case “did not address payments made pursuant to a judgment which was subsequently vacated.” Id. The court rejected outright the notion that the vacation of a support obligation must be prospective only and placed the burden on the payee to demonstrate that it would be “inequitable to return the parties to their original positions.” Id.
The majority opinion in this case is based in part upon the premise that divorce suits are different because “spousal support payments become vested as they accrue and the trial court is without authority to make any changes as to past due installments.” That concept is not applicable to this case because the entitlement to support payments never vested. Whenever the decree of a trial judge has been appealed, the rights created by that decree do not vest pending the appeal.
[A] litigant, successful in the trial court, [does not] acquire a vested right upon entry of the judgment; the right is inchoate and does not become vested until the judgment has been affirmed on appeal or the time allowed for appeal has expired.
Fletcher v. Tarasidis, 219 Va. 658, 661, 250 S.E.2d 739, 740 (1979) (citing Kennedy Coal Corp. v. Buckhorn Coal Corp., 140 Va. 37, 45, 124 S.E. 482, 484-85 (1924)). In this case, the decree awarding spousal support was reversed on appeal and, thus, the inchoate claim to support never vested.
The majority’s further discussion, whether this Court’s opinion should be considered retroactive with respect to the spousal support decree of the trial court then on appeal, is invalid in part due to the lack of viability of the majority’s vested rights theory. “As a general rule in Anglo-American jurisprudence, judicial decisions *1237are to be applied retroactively.” Department of Highways & Transp. v. Williams, 1 Va. App. 349, 352-53, 338 S.E.2d 660, 662-63 (1986). Vested rights are generally included within those interests protected against invasion by retroactive application of laws. See generally Shiflet v. Eller, 228 Va. 115, 120, 319 S.E.2d 750, 754 (1984). Because, however, our resolution of the issue, whether recovery of spousal support is permissible after a decree initially ordering spousal support has been reversed on direct appeal, is not controlled by vested rights principles, retroactive application of our decision would not be barred for that reason. More significantly, however, the concept of retroactivity is irrelevant to the issue presented in this appeal. This court’s reversal of the trial judge’s spousal support decree became the law of the case. No legal principles of retroactivity are involved in applying the law of this case to the parties in this case. Application of the law of the case to the pending case that gave rise to that decision is simply not a retroactive application of that decision.
The issue presented in this case does not involve a retrospective or retroactive application of a statute to modify an initial spousal support order based on changed circumstances. Nor does the issue in this case implicate a court’s authority to modify retroactively a presumptively lawful, pre-existing award of spousal support. This case involves two fundamental concepts: (1) this Court’s authority under Code § 17-116.09 to affirm, reverse, modify, or set aside a judgment or order of the trial court, and (2) the trial judge’s duty to implement the reversal and correct its error concerning the initial support order made pursuant to Code § 20-107.1.
The effect of reversing [a] decree . . . [is] to abrogate it, and the cause [stands] in the circuit court precisely as it did before the entry of the decree. The decree [is], in effect, expunged from the records and the parties to the litigation [are] restored to their original rights. A party to a suit is presumed to know of all the errors in the record, and such party cannot acquire any rights or interests based on such erroneous decree that will not be abrogated by a subsequent reversal thereof. If such party has received benefits from the erroneous decree or judgment, he must, after reversal, make restitution ....
*1238Ure v. Ure, 223 Ill. 454, 463, 79 N.E. 153, 156 (1906) (citations omitted). In Flemings, the Supreme Court of Appeals explained:
The power of a Court to repair the injury occasioned by its own wrongful adjudication, is not derived from a mandate of the appellate forum, made upon rendering the judgment or decree of reversal, but is substantially the same which it exercises when its own process has been abused, or used without authority, by its suitors or ministerial officers .... And so it may [award a writ of restitution] where its process has been misapplied by its own authority erroneously exercised, as is made manifest by a reversal of the judgment or decree on which it issued, whether accomplished by its own jurisdiction, or that of a higher appellate tribunal.
* * *
That the mandate for restitution is merely declaratory or directory [rather than statutorily imposed], is obvious from the consideration, that it is never refused upon a reversal on the merits, unless for the want of sufficient evidence to show that the erroneous judgment or decree has been actually enforced; and then the refusal is never entered on the record, but the whole matter silently referred to the cognizance of the Court below.
* * *
Our accustomed omission of a mandate for restitution cannot, therefore, where there has been a reversal upon the merits, be treated as resulting in the monstrous perversion of justice, that there shall be no restoration to what has been lost by occasion of the erroneous judgment or decree; nor in ousting the Court below of its inherent and salutary jurisdiction of correcting the misapplication of its own process ....
46 Va. (5 Gratt.) at 281-84. See also Rule 1:1.
More recently, in Young v. Young, 212 Va. 761, 188 S.E.2d 200 (1972), the Supreme Court set aside a trial judge’s order denying spousal support upon an initial application and remanded the case to the trial judge with instructions “to determine the amount of [spousal support] to be awarded the wife.” Id. at 762, 188 S.E.2d at 201. On remand, the trial judge granted spousal support to the wife effective three days prior to the date of the *1239order. On appeal from that order, the Supreme Court held:
We have adopted the rule “that the time permanent alimony shall commence is within the sound discretion of the court and may be made effective as of the date of the commencement of the suit. In rejecting [the wife’s] argument, the chancellor assigned definitive grounds. We cannot say that his refusal to make the alimony award effective as of the date of the commencement of the suit was an abuse of discretion.
However, our opinion [on the first appeal] foreclosed the exercise of the chancellor’s discretion to fix a commencement date later than the date of our mandate. Accordingly, we hold that the award of alimony granted [the wife] by the [trial judge’s] decree ... is effective beginning [the date of the mandate of the first appeal] with interest from that date.
Young v. Young, 215 Va. 125, 126, 207 S.E.2d 825, 825-26 (1975) (citations and emphasis omitted). See also Hughes v. Hughes, 173 Va. 293, 306, 4 S.E.2d 402, 407 (1939) (reversing on direct appeal the trial judge’s denial of spousal support to the wife under Code § 5111 (now Code § 20-107.1, as amended 1988) and ordering the trial judge to award spousal support to the wife and to calculate restitution if any due to husband for sums he may have paid).
The majority intimates that Title 20 exclusively controls “modifications” of support orders. Those particular statutory limitations involve modifications based on changed circumstances rather than errors made in the trial judge’s original or underlying determination. The former modification involves a reconsideration of the parties’ predetermined rights based on new, previously unconsidered facts. The latter concerns the legal and proper application of a particular right as reviewed by an appellate court, which determines the law of the case drawn from the record. To the extent the trial judge’s decree is reversed, vacated, or set aside, it is a nullity. Under the majority’s reasoning, no court possessing appellate jurisdiction over circuit court judgments may affect in any manner whatsoever a circuit court’s support order while a direct *1240appeal is pending.3
The trial judge’s authority to make an award of support and maintenance is statutory. See Jackson v. Jackson, 211 Va. 718, 180 S.E.2d 500, 500 (1971). Moreover, the decision whether to make an award is specifically prescribed as follows:
[N]o permanent maintenance and support shall be awarded from a spouse if there exists in such spouse’s favor a ground for divorce [for adultery, sodomy, or buggery committed outside the marriage]. However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties. . . .
The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other [fault] ground for divorce under the provisions of § 20-91(3) or (6) or § 20-95.
Code § 20-107.1. The statute specifically authorizes courts to “make such further decree as it shall deem expedient concerning the maintenance and support of the spouses.” Code § 20-107.1. This clause alone is sufficient to authorize a trial judge to order, in appropriate cases, restitution of spousal support paid under a decree that is later vacated. See Hughes, 173 Va. at 306, 4 S.E.2d *1241at 407.
The majority’s position on this issue clearly is not consistent with public policy. Significantly, in 1987 the legislature amended Code §§ 16.1-279(0), 20-74, 20-88.28:2, 20-88.30:6, 20-108, 20-112, and 63.1-252.1 so as to include the phrase, “No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for modification, but only from the date that notice of such petition has been given to the responding party.” 1987 Va. Acts ch. 649. These extensive amendments contain a clear expression of legislative policy that support awards may be modified with respect to any period during which there is a pending contest as to the amount of the award and the parties are on notice that such a controversy exists. If, for example, this Court reversed a trial judge’s denial of a petition to terminate spousal support due to change in condition, this Court would have the authority to remand the matter to the trial judge for a determination whether the payor spouse was entitled to restitution of the support payments made during the pendency of the litigation. See Code § 20-112. Plainly, the trial judge possesses the authority under the statute and in the exercise of discretion to order, in an appropriate case, restitution of all spousal support paid during pendency of that proceeding.
Our Supreme Court has long held the view that a trial judge’s spousal support order, which has been reversed on appeal, must be modified from a date that pre-dates the order of the appellate court. In Hughes, the trial judge refused to grant either party a divorce and also refused to award the wife spousal support under a precursor to Code § 20-107.1 that contained similar language. Id. at 297, 4 S.E.2d at 403. Code § 5111 then read,
Upon decreeing that neither party is entitled to a divorce, the court may make such further decree as it shall deem expedient concerning the estate and maintenance of the parties, or either of them. . . .
Id. at 303, 4 S.E.2d at 406. Holding that the trial judge erred in not awarding the spousal support, the Supreme Court remanded the case and ordered the trial judge to
*1242[determine what would be a reasonable and just amount of alimony to which the wife is entitled under the circumstances disclosed, payment of the same to be begun as of the date the decree was entered refusing an allowance of the same to her, the husband to be given credit for any monthly sum or sums he may have theretofore paid his wife.
Id. at 306, 4 S.E.2d at 407-08. As Hughes illustrates, the concept of an equitable balancing of payments and entitlements from the point of contested error is not foreign to our jurisprudence. Similarly, when applying identical language found in Code § 20-107.1, we should be mindful of these equities in this case, in which the husband has unjustly paid support under threat of contempt. Compare Young, 215 Va. at 126, 207 S.E.2d at 825-26. (“We have adopted the rule ‘that the time permanent alimony shall commence is within the sound discretion of the court and may be made effective as of the commencement of the suit’ ”).
Once support has been decreed by the trial judge upon an initial request for spousal support, the payor spouse who decides to appeal may seek from the trial judge an order suspending execution of the decree for support. See Code § 8.01-676.1(D). Thus, even though “an order compelling [one spouse] to support [the other] ... is a public as well as a marital duty,” West v. West, 126 Va. 696, 699, 101 S.E. 876, 877 (1920), the legislature has empowered the trial judge, upon proper application, to stay the effect of a spousal support order pending appeal if the trial judge, in the exercise of discretion, deems it sound to so do. In a few cases, a spouse who has been determined to be eligible for support and who has been judged in need according to the factors in Code § 20-107.1 may be denied support payments pending appeal if the trial judge determines from the circumstances presented that a stay is warranted. If the payor spouse is successful on appeal in those cases, the payor spouse will have suffered no financial detriment. I perceive no policy basis upon which to conclude that the payor spouse who is not able to convince the trial judge to stay the award pending appeal should be foreclosed from seeking to demonstrate that equities allow a restitution of money paid if, on appeal, the decree of support is reversed and vacated.
The policy that supports the authority of the trial judge, upon the exercise of discretion, to stay the enforcement of a support *1243award, likewise authorizes the trial judge, upon the exercise of discretion and in a proper case, to allow restitution of support paid pending appeal when the order granting support has been reversed and vacated. In the former case, the trial judge who has entered a stay presumably has determined upon a balancing of factors that the payee spouse’s needs are not so great as to require immediate payment of the award. In the later case, the trial judge will have determined upon a balancing of factors that the repayment of support that was wrongly ordered will not cause the payee spouse to suffer undue hardship. In any event, the spouse who has paid spousal support under the threat of contempt should not be foreclosed from the opportunity to prove that the equities favor restitution.
The 1987 amendments to the Code express a legislative policy that once spousal support is placed at issue before a court and the parties are notified that the issue is before the court, the trial judge is authorized to grant relief effective the date notice was given to the spouse whose circumstances will be affected by the court’s order. The policy authorizing the trial judge to exercise discretion with respect to contested support awards is consistent with Code § 8.01-676.1(D), which permits the court to refuse or grant suspension of payments during appeal in accordance with the trial judge’s equitable and discretionary powers to avoid undue hardship on the parties. Thus, an award may be contested by appeal, but the trial judge, upon the exercise of discretion, may deny suspension and bond so that a needy spouse may continue to pay rent, eat, and provide for other necessities. That is not to say the payee spouse may not be obligated to compensate the payor spouse for erroneous payments. But restitution is not an absolute right since it is subject to the trial court’s exercise of sound discretion. Thus, although the payments which were not suspended may have been erroneous, the trial court is not compelled to order total recompensation, but may order a modification with respect to any period during which the matter was pending for a decision consistent with the court’s specific authority to “make such further decrees as it shall deem expedient concerning the maintenance and support of the spouses.” Code § 20-107.1. This analysis is consistent with the majority’s discussion of Flemings and protective appeal bonds. It follows from that discussion that had the General Assembly not assumed the applicability of equitable restitution in instances such as this, there would be no need for discretionary *1244protective bonds.
A holding allowing restitution for wrongfully ordered spousal support need not be harsh and will rest upon the exercise of sound discretion. In the proper case, the payee spouse who has disposed of the funds for necessities need not be required to repay the funds. On the other hand, in cases such as Hughes and Young, the discretionary authority may be exercised to remedy a situation in which a payee has been unjustly deprived of equitably deserved support pending appeal of a denial of an award or an inadequate initial award. In a case such as the one which we now decide, the trial judge may consider the failure of the payor spouse to seek a stay pending appeal in weighing the equities whether the payor spouse is entitled to part or all of the support that was erroneously paid pending resolution of the issue. In short, I emphasize that the authority is discretionary rather than mandatory. See Shanahan, 437 N.Y.S.2d at 171, 80 A.D.2d at 741 (restitution will not ordinarily be granted because of the “hardship” of forcing a spouse to repay large sums of money); Thompson v. Baltimore & O.R. Co., 72 F. Supp. 65, 67-68 (E.D. Mo. 1947) (restitution is not a matter of right but, rather, is a matter of discretion to be exercised in accordance with sound principles of equity to correct what a litigant has lost by the payment of a judgment that is later reversed on appeal). The majority’s holding, however, “precludes [in every case] the . . . correction of an erroneous trial court judgment granting, denying, or modifying ... [a] support award and irrevocably perpetuates the injustice of such judgment during the appellate process.” Wasson v. Wasson, 439 So. 2d 1208, 1213 (La. Ct. App.) (Lanier, J., concurring), writ denied, 443 So. 2d 592 (La. 1983).
For these reasons, I would hold that the trial judge erred in concluding that no basis in law exists for the husband’s petition for restitution of spousal support with respect to the period during which this matter was pending decision. Accordingly, I would remand the matter to the trial judge for a determination whether the equities require the wife to repay all or any portion of the spousal support that this Court in the earlier appeal determined to be inappropriately ordered.
Although the husband’s motion in the trial court is styled “Motion of Equitable Recoupment,” the relief that he seeks is the return of money that he paid to his former wife as spousal support. I agree with the majority that “restitution” is the more appropriate term to describe the relief sought.
As a word descriptive of a distinct cause of action or claim of a party [restitution] has a definite meaning in the law; viz., that a party against whom an erroneous judgment or decree has been carried into effect is entitled, upon reversal of such judgment or decree, to have restitution, by writ of restitution if necessary, of what he had lost thereby. It also has a more general meaning as indicative of the princi*1235pies attending the restoration or return or reparation to which a party may be proven to be entitled in an appropriate proceeding, and is connected with the principle of unjust enrichment.
William Whitman Co. v. Universal Oil Prods. Co., 125 F. Supp. 137, 148 (D. Del. 1954) (footnote omitted). It is generally held that “the remedy of restitution is not confined to any particular circumstances or set of facts. It is, rather, a flexible, equitable remedy available whenever the court finds that ‘the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity’ to make compensation for benefits received.” Murdock-Bryant Constr., Inc. v. Pearson, 146 Ariz. 48, 53, 703 P.2d 1197, 1202 (1985).
The comments to the Restatement of Restitution § 74 note that “restitution [is not to be] denied because the payor had a moral duty to make the payment. . . . [But] the court can properly refuse restitution ... if restitution would involve a substantial hardship or expense.” Id. at 305.
Under the majority’s reasoning, a trial judge could order spousal support in direct contravention of a stipulation or contract signed before entry of a final decree. See Code § 20-109. The payor spouse, then, could be required to make payments pursuant to the judge’s order, under the threat of contempt, until this Court might reverse. Further, the result reached today would preclude the payor spouse from recovering any monies paid pursuant to the unlawful support order. Presumably, this would hold true even in cases where one spouse fraudulently obtained the support award. Contras Stimmel v. Stimmel, 163 A.D.2d 381, 383, 558 N.Y.S.2d 112, 114 (1990) (ordering the lower court to calculate restitution where support figure was based on payee spouse’s misrepresentations even where support order was not directly appealed but was retroactively modified); Bryant v. Bryant, 130 Misc. 2d 101, 106, 495 N.Y.S.2d 121, 125 (Sup. Ct. 1985) (payor spouse entitled to restitution for overpayments of court-ordered support because of payee spouse’s concealment).