Daniel J. Potas v. Marcia M. Potas

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, O’Brien and Senior Judge Bumgardner UNPUBLISHED

DANIEL J. POTAS MEMORANDUM OPINION* v. Record No. 1242-17-1 PER CURIAM DECEMBER 27, 2017 MARCIA M. POTAS

FROM THE CIRCUIT COURT OF YORK COUNTY Richard H. Rizk, Judge

(Daniel J. Potas, on briefs), pro se. Appellant submitting on briefs.

(Kenneth B. Murov, on brief), for appellee. Appellee submitting on brief.

Daniel J. Potas (father) is appealing a child support order. Father argues that the trial court

(1) “violated [his] due process, property, and obligation of contract rights by depriving [him] of

property by ordering him to pay $769 more a month in child support . . . than what was previously

agreed to in the PSA contract;” (2) erred by hearing the motion to amend child support because

appellant was never served with the motion; and (3) “erred in applying Virginia Code § 20-108.1”

and “not considering all evidence presented.” Upon reviewing the record and briefs of the parties,

we conclude that appellant waived his arguments. Accordingly, we affirm the decision of the trial

court.

BACKGROUND

“When reviewing a trial court’s decision on appeal, we view the evidence in the light most

favorable to the prevailing party, granting it the benefit of any reasonable inferences.” Tidwell v.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Late, 67 Va. App. 668, 673, 799 S.E.2d 696, 699 (2017) (quoting Niblett v. Niblett, 65 Va. App.

616, 622, 779 S.E.2d 839, 842 (2015)).

On September 24, 2015, the parties entered into a stipulation and marital agreement (“the

Agreement”), in which they agreed to child custody, visitation, support, and equitable distribution.

On December 7, 2015, the trial court entered, nunc pro tunc to September 24, 2015, the parties’

final decree of divorce. The final decree affirmed, ratified, and incorporated the Agreement. Father

agreed to pay Marcia M. Potas (mother) $1,200 per month for child support. The final decree

further stated, “The aforesaid support is a downward deviation from the Virginia support guidelines

based upon the financial terms of this agreement and the custody and visitation provisions set forth

in the Stipulation and Marital Agreement dated September 24, 2015.”

Approximately, one month after the entry of the final decree, the parties filed various

pleadings regarding custody and visitation issues. The trial court conducted several hearings in

2016. On September 19, 2016, mother filed a notice and motion seeking to modify child support.1

Pursuant to the notice, the trial court held a hearing on September 26, 2016. The trial court found

that there was a material change in circumstances since the final decree, and it ordered father to pay

mother $1,969 per month, effective October 1, 2016, in accordance with the child support

guidelines. After issuing its ruling, the trial court stated, “As it relates to support, that is a final

order.” The trial court entered the child support order on November 9, 2016. Father did not appeal

the November 9, 2016 child support order.

On July 11, 2017, mother filed an amended child support order with the trial court. She

explained that there was a typographical error in the November 9, 2016 child support order. The

amended child support order correctly stated that mother, as opposed to father, would continue to

1 The certificate of service on the notice and motion was dated September 15, 2016. -2- carry the children on her health insurance. The trial court entered the amended child support order

on July 12, 2017. Father timely noticed his appeal of the amended child support order.

ANALYSIS

Father argues that the trial court erred by determining child support. He contends the trial

court violated his rights by ordering him to pay more than what the parties agreed to in the

Agreement. He further asserts that he was not served with the motion to amend child support. All

of these arguments relate to the September 26, 2016 hearing and the November 9, 2016 order.

The November 9, 2016 child support order was a final order. “[A] final order ‘is one which

disposes of the whole subject, gives all the relief contemplated, provides with reasonable

completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to

superintend ministerially the execution of the order.’” Prizzia v. Prizzia, 45 Va. App. 280, 285,

610 S.E.2d 326, 329 (2005) (quoting James v. James, 263 Va. 474, 481, 562 S.E.2d 133, 137

(2002)).

Rule 1:1 states, “All final judgments, orders, and decrees, irrespective of terms of court,

shall remain under the control of the trial court and subject to be modified, vacated, or suspended

for twenty-one days after the date of entry, and no longer.” After the expiration of twenty-one

days, or by November 30, 2016, the child support order was final.

However, there are limited exceptions to Rule 1:1, including Code § 8.01-428(B) that

allows the trial court to correct clerical mistakes and inadvertent omissions. Code § 8.01-428(B)

states:

Clerical 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. During the pendency of an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending such mistakes may be corrected with leave of the appellate court. -3- The July 12, 2017 amended order corrected a clerical mistake contained in the November

9, 2016 order, which erroneously stated that mother, not father, was responsible for covering the

children on her health insurance policy. Father agreed that the November 9, 2016 order

contained a clerical mistake. The July 12, 2017 amended order did not reopen the child support

matter.

Father waived his arguments that the trial court erred in determining child support by not

appealing the November 9, 2016 order. Since father agreed to the correction in the July 12, 2017

order, there is nothing left for him to appeal.

Mother asks this Court to award her attorney’s fees and costs incurred on appeal. See

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). On consideration

of the record before us, we deny her request for an award of attorney’s fees and costs she

incurred on appeal.

CONCLUSION

For the foregoing reasons, the trial court’s ruling is affirmed.

Affirmed.

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