James P. Hart III v. Marie Holt Hart (Pratt)

• Court: Court of Appeals of Virginia
• Decided: January 28, 2003
• Docket: 0952023
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Kelsey and Retired Judge Strickland* Argued at Salem, Virginia

JAMES P. HART, III MEMORANDUM OPINION** BY v. Record No. 0952-02-3 D. ARTHUR KELSEY JANUARY 28, 2003 MARIE HOLT HART (PRATT)

FROM THE CIRCUIT COURT OF ROANOKE COUNTY Lawrence D. Diehl, Judge Pro Tempore

Charles B. Phillips (Phillips & Phillips, on brief), for appellant.

William H. Cleaveland (Leisa Ciafonne, on brief), for appellee.

In 1997, the trial court entered a final decree divorcing

James P. Hart, III, and Marie Holt Hart. This case comes before

us for the third time. Asserting several grounds of error, the

husband appeals from the trial court's order entered on March 18,

2002, following our remand from the second appeal. For the

following reasons, we affirm.

* Retired Judge Diane McQ. Strickland participated in this case pursuant to Code § 17.1-400(C).

** Pursuant to Code § 17.1-413, this opinion is not designated for publication. I.

During the marriage the parties owned property known as

"Plantation Point" fronting Smith Mountain Lake in Bedford County.

In the 1997 final divorce decree, Judge Roy B. Willett appeared to

have made a complete disposition of Plantation Point by dividing

it into three separate tracks of land identified as parcels A, B,

and C. Under the decree, the parties would own parcel A as

tenants in common with certain specified buy-out options. The

decree awarded parcel B to the wife and parcel C to the husband.

The final decree incorporated by reference a survey plat

showing parcel A to contain 8.317 acres, parcel B to have 20.601

acres, and parcel C to include 18.676 acres. Parcel C fronts on

Smith Mountain Lake. The plat also includes an unlabeled area

submerged under the lake. This underwater acreage can be

determined only by subtracting the acreage amounts listed for

parcels A, B, and C from the total plat acreage of 69.151. That

calculation (which nowhere appears in the 1997 final decree or the

survey plat) yields 21.557 acres attributable to the submerged

property.

The final decree stated that, with one exception, the two

reports of Commissioner in Chancery Lawrence D. Diehl were "hereby

RATIFIED, CONFIRMED AND APPROVED in all respects . . . ." With

respect to Plantation Point, the commissioner's final report

included an attached drawing describing parcel C as approximately

- 2 - 664,816 square feet (15.26 acres). The report also made clear

that there "shall be no further adjustments for any acreage

resulting from the conveyance of Parcel B or Parcel C arising out

of underwater flowage easements or acreage under Smith Mountain

Lake shown on the Lumsden plat, the compensations between the

parties to be based solely on the land acreage as determined in

the final survey."

The decree gave the husband sixty days to exercise an option

to purchase the wife's share of parcel A. If the husband failed

to do so, the decree then afforded the wife sixty days to purchase

the husband's share. During the pendency of the first appeal, 1

the husband's option period expired. The wife later exercised her

option to purchase the husband's share. The trial court, however,

ruled that the wife failed to exercise the option properly and

decreed that parcel A be sold. On appeal, we reversed and held

that the wife properly exercised her option to purchase parcel A.2

See Hart v. Hart, 35 Va. App. 221, 238, 544 S.E.2d 366, 375 (2001)

("Hart II"). On April 3, 2001, we remanded Hart II "for further

proceedings consistent with" our opinion. Id.

1 Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496 (1998) ("Hart I"). 2 Hart I and Hart II contained additional assignments of error that are not relevant to the subject matter of this appeal.

- 3 - Despite our ruling enforcing the wife's option, the husband

refused to transfer parcel A. In February 2002, the trial court

ordered the husband to "execute all appropriate documents with

regard" to the conveyance of parcel A and further designated the

wife's attorney as special commissioner to execute "any and all

documents necessary" for the conveyance of parcel A in the event

the husband failed to do so by March 20, 2002.

The husband filed a separate motion raising, for the first

time, the failure of the 1997 final decree to dispose of the

submerged property. The husband contended that the oversight was

merely a clerical error and asked the trial court to correct it by

redrawing the boundary line for parcel C to include the submerged

property. The judge pro tempore, who had previously served as

commissioner in chancery in this case, ruled that the error was

not a clerical error. The husband's motion, therefore, sought a

"substantive change" in the boundaries previously approved by the

court. The judge pro tempore held that the "court made no

determination with regard to that property situated below the 800

foot contour line on the plat [the submerged property] and having

heard no evidence on that property, has made no ruling with regard

to this acreage." As a result, the judge pro tempore concluded

that under Rule 1:1 he had no jurisdiction to modify the 1997

final decree.

- 4 - On March 18, 2002, the judge pro tempore entered a decree

announcing his decisions on both motions. The decree contained a

narrative restatement of the acreage of parcels A, B, and C

consistent with the acreage descriptions given on the plat

attached to the 1997 final decree. The husband filed a motion to

reconsider, arguing that the court exceeded the scope of our

remand in Hart II by inserting this restatement of acreage. The

court denied the motion.

II.

We apply a de novo review to the trial court's legal

conclusions. Under Code § 8.01-680, however, a factual

determination cannot be reversed unless "plainly wrong or without

evidence to support it." See generally Schweider v. Schweider,

243 Va. 245, 250, 415 S.E.2d 135, 138 (1992); Torian v. Torian, 38

Va. App. 167, 181, 562 S.E.2d 355, 362 (2002); Bchara v. Bchara,

38 Va. App. 302, 313, 563 S.E.2d 398, 403 (2002).

The husband argues on appeal that the judge pro tempore

(i) exceeded his appointment authority, (ii) violated the scope of

our remand in Hart II by appointing a special commissioner to

transfer parcel A, (iii) erroneously failed to redefine parcel C

to include the submerged property which, the husband argues, was

simply a "clerical mistake" in the 1997 final decree, and (iv)

erred in providing specific acreage in the March 2002 order.

- 5 - A.

We first address the power of a judge pro tempore to decide

these matters. The husband objects to the judge pro tempore

appointing the special commissioner because "the authority vests

in the Circuit Court Judge who ruled on all matters regarding the

boundary lines and the Judge Pro Tempore was acting only as a

Commissioner in Chancery during that phase of the trial."

Under Code § 17.1-110, a judge pro tempore is "vested with

the same power and authority and shall be charged with the same

duties as to the cause in and as to which he is appointed as

though he were the regularly elected and qualified judge of such

court." The parties, however, may "limit the power of the judge

pro tempore to the trial and determination of any specified issue

or issues, either of law or fact and in such cases the oath of the

person appointed shall correspond to the terms of the

stipulation." Code § 17.1-110.

In this case, the husband and wife consented to the

appointment of the judge pro tempore and failed to limit his

authority in any manner. As a result, the judge pro tempore had

the "same power and authority" to decide these matters as a

"regularly elected and qualified judge of such court." Code

§ 17.1-110. That authority necessarily includes the power to

enforce the trial court's earlier decrees. We reject the

husband's contention to the contrary as meritless.

- 6 - B.

The husband next argues that the judge pro tempore exceeded

the scope of our remand from Hart II by appointing a special

commissioner to convey to the wife the husband's share of parcel

A. We disagree. Among other issues we considered in Hart II, we

addressed whether the wife had properly exercised her option to

purchase the husband's share of parcel A in accordance with the

provisions of the 1997 final decree. We held that she did and

remanded the case "for further proceedings consistent" with our

opinion.

"Further proceedings" with regard to this particular issue

included any enforcement action, if required, to effectuate the

conveyance of the husband's share of parcel A to the wife. That

enforcement action became necessary when, a year after Hart II,

the husband still had not conveyed his interest in the property.

Code § 20-107.3(K) grants trial courts "continuing authority

and jurisdiction to make any additional orders necessary to

effectuate and enforce any order entered pursuant to this section

. . . ." That authority includes the power to appoint a "special

commissioner" to transfer any property when "a party refuses to

comply with the order of the court to transfer such property."

Code § 20-107.3(K)(3); see also Code § 20-107.3(C) (granting the

trial court authority to partition marital property). The judge

pro tempore, therefore, did not go outside the scope of our remand

- 7 - in Hart II by exercising his enforcement power under the equitable

distribution statute.

C.

The husband contends that the judge pro tempore erred by

refusing to correct a clerical error in the 1997 final decree.

The decree inadvertently failed, the husband asserts, to include

the submerged property within the description of parcel C, which

the decree conveyed to the husband. We disagree that this mistake

should be characterized as a clerical error.

An exception to Rule 1:1's twenty-one day deadline, Code

§ 8.01-428(B) authorizes a trial court to correct "clerical

mistakes in all judgments or other parts of the record and errors

therein arising from oversight or from an inadvertent omission . .

. ." Before a trial court may invoke the authority to make

corrections under Code § 8.01-428(B), "the evidence must clearly

support 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); see also Cutshaw v. Cutshaw, 220 Va. 638, 641,

261 S.E.2d 52, 53 (1979). "Such mistakes or omissions must be

apparent from the record." Hart, 35 Va. App. at 230, 544 S.E.2d

at 370.

"Examples of clerical errors include a typographical error

made by a court reporter while transcribing a court proceeding,

Lamb v. Commonwealth, 222 Va. 161, 165, 279 S.E.2d 389, 392

- 8 - (1981), or an unintended error in the drafting of a divorce

decree, Dorn v. Dorn, 222 Va. 288, 291, 279 S.E.2d 393, 394

(1981)." Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279,

283, 568 S.E.2d 671, 673 (2002). Such "[s]crivener's or similar

errors in the record, which are demonstrably contradicted by all

other documents" in the record "cause the court's record to fail

to 'speak the truth.'" Id. (quoting Zhou v. Zhou, 38 Va. App.

126, 133, 562 S.E.2d 336, 339 (2002)) (internal quotations and

citations omitted); see also School Board of Lynchburg v. Caudill

Rowlett Scott, Inc., 237 Va. 550, 555, 379 S.E.2d 319, 322 (1989)

(if it is apparent that a final decree "correctly reflected the

court's rulings, correctly recited the proceedings, and was

subject to no errors of oversight or omission" the error is not of

a clerical nature).

In this case, the judge pro tempore held that no clerical

error existed that would authorize amending the 1997 decree to

include the submerged property. As the judge explained:

I intended to divide the land in the way I did, there is nothing that is a clerical error on that. . . . And I did not divide up the water property because, A, I don't know if I had sufficient argument or evidence as to how that should be divided and, B, in hindsight no one really raised that issue to me within the time of the hearing or I assume with the Court later within 21 days of the final decree being entered, and so I have to agree . . . that this is a jurisdictional issue.

- 9 - Our independent review of the record confirms this ruling.

Neither party submitted any evidence of the value of the submerged

property or any unique characteristics of this property that would

be relevant to the distribution questions before the trial court.

The husband correctly points out that the commissioner's

final report states that there would be no "further adjustments"

for acreage "under Smith Mountain Lake shown on the Lumsden plat,

the compensations between the parties to be based solely on the

land acreage as determined in the final survey." We disagree,

however, that this provision suggests the trial court intended the

submerged property to be included within parcel C.

During the lengthy hearing on October 12, 1996, that

generated the final commissioner's report, neither the husband,

his attorney, nor any other party suggested that the submerged

property be included in parcel C. Rather, all parties appeared to

have been under the mistaken assumption that Plantation Point

consisted of only about 44 acres —— an approximation of the

surface area of the property above the 800 foot contour line. On

direct examination, the following colloquy occurred between the

husband and his attorney:

Q. Okay, and did you make – did you prepare this map?

A. Yes, I did.

Q. All right, and this is the map of what we know as Plantation Point?

- 10 - A. Yes, that is correct.

Q. That consists of approximately 44 acres?

A. That is right.

Q. Is that true?

A. Yes.

Later, the husband confirmed the approximate size of the parcels

contemplated in the partition in kind.

Q. And how much land would be with Parcel A if the green line is followed?

A. That is eight acres.

Q. Okay, and how much for B?

A. Twenty-one.

Q. All right, 21, and how much for C, which would be your land?

A. Fifteen.

Q. All right.

If the husband or anyone else had contemplated that parcel C would

include the submerged property, the approximate size would have

been over thirty-five acres, not fifteen. 3 Because the parties

presented no other evidence regarding the submerged property

between this hearing and entry of the final decree, the trial

court had no evidentiary basis to dispose of the twenty-plus acres

of submerged property.

3 We estimate thirty-five acres based on the fifteen acres stated by the husband during his testimony plus the approximately 20 acres comprising the submerged property.

- 11 - No doubt an error of some sort has occurred here. As the

judge pro tempore noted, "It concerns me that this was omitted, I

would like to be able to do something . . . ." But this error

cannot be characterized as a "clerical" mistake contemplated by

Code § 8.01-428(B). See School Board of Lynchburg, 237 Va. at

555, 379 S.E.2d at 322. For this reason, the judge pro tempore

correctly ruled that he did not "have jurisdiction to address the

apportionment of the other acreage underwater."

The continuing appellate process does not change this result.

All non-clerical errors in the 1997 decree should have been raised

and resolved in Hart I. "'An appeal from a decree brings up the

whole proceedings in the case prior to the decree . . . .'"

Findlay v. Trigg, 83 Va. 539, 543, 3 S.E. 142, 143 (1887) (quoting

J. B. Campbell's Ex'rs v. A. C. Campbell's Ex'r, 63 Va. (22

Gratt.) 649, 672 (1872)). If a party fails to complain of an

error and we adjudicate the appeal "without correcting or noticing

the error," the parties cannot raise that error later. Id.; see

also Commonwealth v. Luzik, 259 Va. 198, 206, 524 S.E.2d 871, 876

(2000) ("if a matter is appealed and a party fails to preserve a

challenge to an alleged error made by the trial court by

assignment of error or cross-error, the judgment of the trial

court becomes final as to that issue"); Kaufman v. Kaufman, 12 Va.

App. 1200, 1208, 409 S.E.2d 1, 6 (1991) ("Where there have been

two appeals in the case, between the same parties, and the facts

- 12 - are the same, nothing decided on the first appeal can be re-

examined on a second appeal."); Krise v. Ryan, 90 Va. 711, 713, 19

S.E. 783, 783 (1894).

D.

The husband's final contention finds fault with provisions in

the March 2002 order reiterating the acreage of the parcels

(particularly parcels B and C). According to the husband, the

trial court exceeded the scope of our remand by including such

language in the March 2002 order. Once again, we disagree.

During argument before the judge pro tempore, the husband

moved to amend the final decree to enlarge the boundaries of

parcel C to include the submerged property. The trial court

rejected this motion, finding instead that the 1997 final decree

did not dispose of the submerged property and that no clerical

mistake had been made. The trial court's March 2002 order then

went on to repeat in narrative form the same acreage, according to

the court, given of parcel C by the plat map attached to the 1997

Under settled principles, "'when construing a lower court's

order, a reviewing court should give deference to the

interpretation adopted by the lower court.'" Albert v. Albert, 38

Va. App. 284, 298, 563 S.E.2d 389, 396 (2002) (quoting Rusty's

Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 129, 510 S.E.2d

255, 260 (1999) (en banc)); see also Fredericksburg Constr. Co. v.

- 13 - J.W. Wyne Excavating, Inc., 260 Va. 137, 144, 530 S.E.2d 148, 152

(2000); Leitao v. Commonwealth, 39 Va. App. 435, 573 S.E.2d 317

(2002). The trial court's interpretive discretion, however, "must

be exercised reasonably and not arbitrarily or capriciously."

Smoot v. Commonwealth, 37 Va. App. 495, 500, 559 S.E.2d 409, 412

(2002) (citation omitted).

Implicit in a trial court's authority to enforce its prior

orders is the power to interpret them, particularly when the

complaining party raises a dispute over the proper interpretation.

We view the March 2002 order as a reasonable interpretation by the

trial court of its earlier 1997 final decree. The court gave that

interpretation in response to the husband's request for a

modification to the 1997 final decree. By seeking that

modification, the husband invited the trial court to make an

interpretation of its earlier decree.

A party cannot "approbate and reprobate —— invite error and

then take advantage of his own wrong." Holden v. Holden, 35

Va. App. 315, 324, 544 S.E.2d 884, 888 (2001) (quoting Steinberg

v. Steinberg, 21 Va. App. 42, 50, 461 S.E.2d 421, 424 (1995)).

Though the husband did not receive the interpretation he wanted

(one the trial court held would have been a substantive

modification of the 1997 final decree), he cannot complain that an

interpretation was given at all. Thus, because the trial court

reasonably interpreted its earlier decree and did not make

- 14 - substantive changes to it, we reject the husband's argument that

the March 2002 order violated the limited scope of our Hart II

remand.

III.

In sum, the judge pro tempore did not violate the limits of

his appointment power, did not exceed the scope of our remand in

Hart II by enforcing the sale of parcel A, did not err in finding

the absence of any clerical mistakes in the 1997 final decree, and

did not go outside the scope of the remand in restating the parcel

acreage and boundary lines in its March 2002 decree. We thus

affirm the trial court on all issues.

Affirmed.

- 15 -