Francis P. Keough v. Mary E. (Keough) Pelletieri

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

FRANCIS P. KEOUGH

v. Record No. 0914-95-4 MEMORANDUM OPINION * PER CURIAM MARY E. (KEOUGH) PELLETIERI OCTOBER 31, 1995

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY F. Bruce Bach, Judge

(Ann W. Mische; Byrd, Mische, Bevis, Bowen, Joseph & O'Connor, on briefs), for appellant. (Robert B. Machen, on brief), for appellee.

Francis P. Keough appeals the decision of the circuit court

denying his "Motion to Correct Order" pursuant to Code

§ 8.01-428(B). Keough argues that the trial court erred in

failing to conform the typewritten consent order to the terms of

the parties' handwritten agreement. Upon reviewing the record

and briefs of the parties, we conclude that this appeal is

without merit. Accordingly, we summarily affirm the decision of

the trial court. Rule 5A:27.

Code § 8.01-428(B) provides, in pertinent part, 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."

"This language 'clearly is broad enough to cover more than

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. errors committed by the clerk or one of the clerk's employees.'"

Artis v. Artis, 10 Va. App. 356, 359, 392 S.E.2d 504, 506 (1990)

(citation omitted). However, "[t]o invoke such authority the

evidence must clearly support the conclusion that an error has

been made." Id. at 359-60, 392 S.E.2d at 506. "We cannot . . .

accept an explanation offered by the party to be benefitted

without some corroborative evidence." Id. at 360, 392 S.E.2d at

507. Following an earlier appeal to and remand from this Court,

Keough and Mary E. Pelletieri, with their respective counsel,

settled the remaining issues between them. The terms of their

settlement were set out in a handwritten agreement signed by the

parties and counsel. The handwritten agreement, which included

abbreviations and interlineations, contained the following

provision: "[Pelletieri's] portion of the milit. pension will

incr. in acc'd with increases in the total pension beg'g

effective w. [Keough's] retir't in the same percentage as the

incre's in the to. retirement." The agreement was subsequently

prepared as a typed consent decree. The first typed version of

the consent decree was provided by Pelletieri to Keough, through

counsel, for review and endorsement. Allowing for abbreviations

and identification of the parties, the language of the consent

order incorporated the language of the handwritten agreement with

one exception: "The Defendant's [Pelletieri's] portion of the

military pension shall increase in accordance with increases in

2 the total pension beginning effective in the Complainant's

[Keough's] retirement in the same percentage as the increases in

the total retirement." (Emphasis added to note exception.)

Keough's counsel reviewed the typed consent order, and made

the following comment: "In paragraph 2, the last sentence, the

phrase 'in accordance with increases in the total pension

beginning effective in' does not make any sense. I believe the

entire phrase could be eliminated and the remaining sentence

would make sense." After suggesting additional revisions,

Keough's counsel concluded the letter by stating: "Please revise

the order and send me the original. I will be happy to endorse

it and return it to you." Pelletieri's counsel made the

requested revisions, and returned the revised consent decree to

Keough's counsel with a request that counsel "[c]all me right

away if there are any matters of language to be resolved" and

with thanks to Keough's counsel "for working so hard to reach

this settlement and to make sure that it was written up

accurately." The revised decree was endorsed by counsel and

entered by the court. At the hearing below, the trial court found that the

handwritten agreement was revised by the parties prior to the

entry of the consent decree. The court found that the evidence

indicated Keough's counsel made a unilateral mistake by deleting

the language, which changed the substance of the agreement to

Keough's disadvantage. Nevertheless, the modified language in

3 the revised consent decree was accepted by Pelletieri's counsel,

endorsed by both counsel, and entered as amended by the trial

court.

When reviewing the terms of the consent decree, we are "not

bound by the trial court's conclusions as to the construction of

the disputed provisions." Smith v. Smith, 3 Va. App. 510, 513,

351 S.E.2d 593, 595 (1986). "[O]n appeal if all the evidence

which is necessary to construe a contract was presented to the

trial court and is before the reviewing court, the meaning and

effect of the contract is a question of law which can readily be

ascertained by this court." Fry v. Schwarting, 4 Va. App. 173,

180, 355 S.E.2d 342, 346 (1987).

We note that this is not an instance in which the parties'

settlement agreement exists as a separate document which the

decree ratifies and incorporates. The consent decree was

intended by the parties to set forth, in its express language,

the terms of their settlement agreement. Both parties reviewed

the decree. Counsel suggested modifications, which were

accepted, and the decree was entered.

While there may have been mistakes made by Keough's counsel

in suggesting a modification which worked to Keough's

disadvantage, we cannot say that that is the kind of clerical

mistake which may be corrected under Code § 8.01-428(B). This

was not a scrivener's error, or an error which is demonstrably

contradicted by all other written documents. In fact, the

4 evidence demonstrates that the modification to the consent decree

was not an act of oversight or inadvertent omission as required

under Code § 8.01-428(B), but was instead a deliberate revision.

As we find this error was not an oversight or inadvertent

omission, we do not address Keough's question whether an error

under Code § 8.01-428(B) must be mutual.

Therefore, the trial court did not err in denying Keough's

Motion to Correct Order. Accordingly, the decision of the

circuit court is summarily affirmed.

Affirmed.