COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Agee Argued at Richmond, Virginia
ALVIN QUASH MEMORANDUM OPINION * BY v. Record No. 0710-01-2 JUDGE LARRY G. ELDER MARCH 5, 2002 MARJORIE S. QUASH
FROM THE CIRCUIT COURT OF CAROLINE COUNTY Horace A. Revercomb, III, Judge
Kelly A. Halligan (Levit, Mann & Halligan, P.C., on brief), for appellant.
Bruce E. Arkema (Cantor, Arkema & Edmonds, P.C., on brief), for appellee.
Alvin Quash (husband) appeals from a circuit court
equitable distribution ruling holding that its previous failure
to award Marjorie S. Quash (wife) fifty percent of an annuity
which was marital property constituted a clerical error subject
to correction under Code § 8.01-428(B). On cross-appeal, wife
contends the trial court erroneously interpreted this Court's
reversal of its spousal support award in a previous appeal,
Quash v. Quash, No. 2761-99-2 (Va. Ct. App. June 27, 2000). We
hold the evidence supports the trial court's ruling that it
divided all assets equally between the parties and that the
omission of the Occidental Life Annuity from the equitable
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. distribution award was a clerical error subject to correction
under Code § 8.01-428(B). We also hold that the trial court's
refusal to award spousal support was not erroneous in light of
this Court's decision on that issue in the parties' prior appeal
but that wife was entitled to a reservation of support. Thus,
we deny the parties' competing requests for attorney's fees in
this appeal, affirm the decision of the trial court, and remand
for a reservation of spousal support.
A.
CLERICAL ERROR
Code § 8.01-428(B) provides that
[c]lerical mistakes in all judgments or other parts of the record and errors therein arising from oversight or from an inadvertent omission may be corrected by the court at any time on its own initiative or upon the motion of any party and after such notice, as the court may order.
This code section does not authorize a court to reconsider "what
judgment it might have rendered while it still retained
jurisdiction . . . and then to enter that judgment nunc pro
tunc." Davis v. Mullins, 251 Va. 141, 149, 466 S.E.2d 90, 94
(1996) (emphasis added). However, it does authorize a court to
correct the record to "'speak the truth,'" id. (quoting Netzer
v. Reynolds, 231 Va. 444, 449, 345 S.E.2d 291, 294 (1986)), by
"'placing upon the record evidence of judicial action which has
actually been taken . . . at the proper time,'" action which
does not involve the reacquisition of jurisdiction, id. (quoting
- 2 - Council v. Commonwealth, 198 Va. 288, 292, 94 S.E.2d 245, 248
(1956) (emphasis added)). See also Dorn v. Dorn, 222 Va. 288,
291, 279 S.E.2d 393, 394-95 (1981) (noting that entry of a nunc
pro tunc order to correct a true clerical error does not violate
Rule 1:1). "Clerical mistakes which may be corrected under the
court's inherent power encompass errors made by other officers
of the court including attorneys." Harris v. Commonwealth, 222
Va. 205, 210, 279 S.E.2d 395, 398-99 (1981). A court's exercise
of authority under Code § 8.01-428(B) is appropriate when
competent evidence "clearly support[s] the conclusion that an
error of oversight or inadvertence has been made." Cass v.
Lassiter, 2 Va. App. 273, 277, 343 S.E.2d 470, 473 (1986).
Here, the record clearly supports the conclusion that the
trial court awarded wife half the value of the TransAmerica
Occidental Life Annuity in the equitable distribution
proceedings. Although the commissioner did not set out a
detailed list of the property he classified as marital, he noted
in his report "an annuity with Occidental Life," which had a
cash surrender value of $28,800.35 as of "9/30/97" and an
"Accumulation Value" of $32,347.28 as of "3/31/98," and he
recommended that wife "be paid 50% of the balance in all . . .
annuity accounts previously listed in this report as of the date
of separation."
The trial court "agree[d] with and confirm[ed] the
commissioner's recommendation" regarding equitable distribution,
- 3 - holding that "the net proceeds from all . . . annuity accounts"
were marital property and that wife should receive fifty percent
of those funds. However, in delineating precisely what assets
should be divided, the court erroneously concluded that wife's
memorandum, which purported to include all marital accounts and
valued them at $54,225.54, contained an accurate listing of the
parties' annuity accounts. In fact, that list accidentally
omitted the TransAmerica Occidental Life Annuity from the
equitable distribution, thereby reducing the total amount of
assets to be divided.
Wife perpetuated this error when her counsel prepared the
final decree at the court's direction. Although the decree did
not specifically list the assets to be divided, it gave a total
value of $54,225.54 for those assets, which did not include the
value of the Occidental Life Annuity. Wife argued in the first
appeal to this Court that the value placed on the parties' total
assets should have been higher, but she did not specifically
argue that this claimed error had resulted from the inadvertent
omission of the Occidental Life Annuity from the calculations.
Thus, in reviewing the equitable distribution award in the first
appeal, this Court passed only on the "valuation dates and
values for marital assets" which were actually contained in
"wife's exhibit." Compare Kaufman v. Kaufman, 12 Va. App. 1200,
1207-09, 409 S.E.2d 1, 5-6 (1991) (holding that trial court
could not redetermine value of asset on remand, where value "was
- 4 - an issue directly before this Court in the first appeal of this
case" and this Court "specifically upheld the trial court's
judgment concerning [the husband's] interest in [the asset]").
This Court was not asked to, and did not, consider whether the
Occidental Life Annuity should have been included in the
equitable distribution and, thus, exclusion of the annuity did
not become the law of the case.
On remand from this Court, the record "clearly supports"
the conclusion that the court awarded wife a half interest in
all marital assets, including the Occidental Life Annuity, and
that wife's inadvertent omission of that annuity from her list
of accounts and values, and the trial court's failure to notice
same, constituted a clerical error subject to correction
pursuant to Code § 8.01-428(B). The court took no additional
evidence and did not alter its original ruling. It merely
corrected the record to make it "'speak the truth.'" Davis, 251
Va.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Agee Argued at Richmond, Virginia
ALVIN QUASH MEMORANDUM OPINION * BY v. Record No. 0710-01-2 JUDGE LARRY G. ELDER MARCH 5, 2002 MARJORIE S. QUASH
FROM THE CIRCUIT COURT OF CAROLINE COUNTY Horace A. Revercomb, III, Judge
Kelly A. Halligan (Levit, Mann & Halligan, P.C., on brief), for appellant.
Bruce E. Arkema (Cantor, Arkema & Edmonds, P.C., on brief), for appellee.
Alvin Quash (husband) appeals from a circuit court
equitable distribution ruling holding that its previous failure
to award Marjorie S. Quash (wife) fifty percent of an annuity
which was marital property constituted a clerical error subject
to correction under Code § 8.01-428(B). On cross-appeal, wife
contends the trial court erroneously interpreted this Court's
reversal of its spousal support award in a previous appeal,
Quash v. Quash, No. 2761-99-2 (Va. Ct. App. June 27, 2000). We
hold the evidence supports the trial court's ruling that it
divided all assets equally between the parties and that the
omission of the Occidental Life Annuity from the equitable
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. distribution award was a clerical error subject to correction
under Code § 8.01-428(B). We also hold that the trial court's
refusal to award spousal support was not erroneous in light of
this Court's decision on that issue in the parties' prior appeal
but that wife was entitled to a reservation of support. Thus,
we deny the parties' competing requests for attorney's fees in
this appeal, affirm the decision of the trial court, and remand
for a reservation of spousal support.
A.
CLERICAL ERROR
Code § 8.01-428(B) provides that
[c]lerical mistakes in all judgments or other parts of the record and errors therein arising from oversight or from an inadvertent omission may be corrected by the court at any time on its own initiative or upon the motion of any party and after such notice, as the court may order.
This code section does not authorize a court to reconsider "what
judgment it might have rendered while it still retained
jurisdiction . . . and then to enter that judgment nunc pro
tunc." Davis v. Mullins, 251 Va. 141, 149, 466 S.E.2d 90, 94
(1996) (emphasis added). However, it does authorize a court to
correct the record to "'speak the truth,'" id. (quoting Netzer
v. Reynolds, 231 Va. 444, 449, 345 S.E.2d 291, 294 (1986)), by
"'placing upon the record evidence of judicial action which has
actually been taken . . . at the proper time,'" action which
does not involve the reacquisition of jurisdiction, id. (quoting
- 2 - Council v. Commonwealth, 198 Va. 288, 292, 94 S.E.2d 245, 248
(1956) (emphasis added)). See also Dorn v. Dorn, 222 Va. 288,
291, 279 S.E.2d 393, 394-95 (1981) (noting that entry of a nunc
pro tunc order to correct a true clerical error does not violate
Rule 1:1). "Clerical mistakes which may be corrected under the
court's inherent power encompass errors made by other officers
of the court including attorneys." Harris v. Commonwealth, 222
Va. 205, 210, 279 S.E.2d 395, 398-99 (1981). A court's exercise
of authority under Code § 8.01-428(B) is appropriate when
competent evidence "clearly support[s] the conclusion that an
error of oversight or inadvertence has been made." Cass v.
Lassiter, 2 Va. App. 273, 277, 343 S.E.2d 470, 473 (1986).
Here, the record clearly supports the conclusion that the
trial court awarded wife half the value of the TransAmerica
Occidental Life Annuity in the equitable distribution
proceedings. Although the commissioner did not set out a
detailed list of the property he classified as marital, he noted
in his report "an annuity with Occidental Life," which had a
cash surrender value of $28,800.35 as of "9/30/97" and an
"Accumulation Value" of $32,347.28 as of "3/31/98," and he
recommended that wife "be paid 50% of the balance in all . . .
annuity accounts previously listed in this report as of the date
of separation."
The trial court "agree[d] with and confirm[ed] the
commissioner's recommendation" regarding equitable distribution,
- 3 - holding that "the net proceeds from all . . . annuity accounts"
were marital property and that wife should receive fifty percent
of those funds. However, in delineating precisely what assets
should be divided, the court erroneously concluded that wife's
memorandum, which purported to include all marital accounts and
valued them at $54,225.54, contained an accurate listing of the
parties' annuity accounts. In fact, that list accidentally
omitted the TransAmerica Occidental Life Annuity from the
equitable distribution, thereby reducing the total amount of
assets to be divided.
Wife perpetuated this error when her counsel prepared the
final decree at the court's direction. Although the decree did
not specifically list the assets to be divided, it gave a total
value of $54,225.54 for those assets, which did not include the
value of the Occidental Life Annuity. Wife argued in the first
appeal to this Court that the value placed on the parties' total
assets should have been higher, but she did not specifically
argue that this claimed error had resulted from the inadvertent
omission of the Occidental Life Annuity from the calculations.
Thus, in reviewing the equitable distribution award in the first
appeal, this Court passed only on the "valuation dates and
values for marital assets" which were actually contained in
"wife's exhibit." Compare Kaufman v. Kaufman, 12 Va. App. 1200,
1207-09, 409 S.E.2d 1, 5-6 (1991) (holding that trial court
could not redetermine value of asset on remand, where value "was
- 4 - an issue directly before this Court in the first appeal of this
case" and this Court "specifically upheld the trial court's
judgment concerning [the husband's] interest in [the asset]").
This Court was not asked to, and did not, consider whether the
Occidental Life Annuity should have been included in the
equitable distribution and, thus, exclusion of the annuity did
not become the law of the case.
On remand from this Court, the record "clearly supports"
the conclusion that the court awarded wife a half interest in
all marital assets, including the Occidental Life Annuity, and
that wife's inadvertent omission of that annuity from her list
of accounts and values, and the trial court's failure to notice
same, constituted a clerical error subject to correction
pursuant to Code § 8.01-428(B). The court took no additional
evidence and did not alter its original ruling. It merely
corrected the record to make it "'speak the truth.'" Davis, 251
Va. at 149, 466 S.E.2d at 94 (quoting Netzer, 231 Va. at 449,
345 S.E.2d at 294). Compare Hart v. Hart, 35 Va. App. 221,
230-31, 544 S.E.2d 366, 370-71 (2001) (holding that court's
actions did not constitute correction of clerical error and
exceeded scope of remand jurisdiction when court heard
additional evidence regarding description of easement, an issue
which had not been appealed).
- 5 - B.
SPOUSAL SUPPORT
In the parties' previous appeal, a panel of this Court
reversed the trial court's spousal support award on the ground
that the trial court failed "adequately [to] explain its reasons
for deviating from the commissioner's decision." Although the
trial court did not explain its reasons for deviating in the
final decree, it incorporated into the final decree a letter
opinion in which it analyzed the factors in Code § 20-107.1 and
made an award of support. Implicit in the trial court's
decision not to award support on remand is that its earlier
letter opinion set out the only reasons it had for deviating
from the commissioner's recommendation and that if this Court
found its reasons constituted an inadequate explanation, it
could not justify an award of support in contravention to the
commissioner's recommendation.
Wife did not challenge this Court's prior determination
that the trial court's reasons for deviating were inadequate,
either by requesting a rehearing by the panel or a rehearing en
banc, or by attempting to appeal the reversal to the Supreme
Court. Thus, this Court's determination in Quash v. Quash, No.
2761-99-2 (Va. Ct. App. June 27, 2000), has become the law of
the case, and the adequacy of the trial court's original
explanation is not before us on appeal. See, e.g., Whitley v.
Commonwealth, 260 Va. 482, 492, 538 S.E.2d 296, 301 (2000); see
- 6 - also Kaufman, 12 Va. App. at 1209, 409 S.E.2d at 6 (citing
Turner v. Staples, 86 Va. 300, 302, 9 S.E. 1123, 1124 (1889)).
Wife did, however, object to the absence of a provision
reserving her right to receive spousal support upon proof of a
material change in circumstances, and we remand to the trial
court to make such a reservation. See Bacon v. Bacon, 3 Va.
App. 484, 491, 351 S.E.2d 37, 41 (1996).
For these reasons, we affirm the ruling of the trial court,
deny the parties' competing requests for attorney's fees on
appeal, and remand for a reservation of spousal support.
Affirmed and remanded with instructions.
- 7 -