COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Clements Argued at Richmond, Virginia
TERI C. JERNIGAN MEMORANDUM OPINION * BY v. Record No. 3002-00-2 JUDGE JEAN HARRISON CLEMENTS NOVEMBER 27, 2001 DARYL W. CLAYTON
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL James A. Luke, Judge
Neil Kuchinsky (Kuchinsky & Associates, P.C., on brief), for appellant.
Stefan M. Calos for appellee.
Teri C. Jernigan (wife) appeals from the trial court's order
amending, upon the motion of Daryl W. Clayton (husband), a prior
order of the trial court with respect to the amount of the child
support arrearage owed by husband. On appeal, wife contends the
trial court erred in amending the prior order because the alleged
error was not correctable under Code § 8.01-428(B) and in
conditioning the full lump-sum payment of the child support
arrearage upon neither party appealing the court's order. For the
reasons that follow, we affirm the decision of the trial court and
remand this case for implementation of the trial court's order
that husband make full lump-sum payment of the arrearage.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
I. BACKGROUND
On February 28, 1995, the juvenile and domestic relations
district court entered an order stating, in relevant part, that
"[t]he amount of arrears is established as $21,989.33, upon which
amount the Court enters judgment plus interest from September 22,
1989 at the rate of nine percent." That order was appealed to the
circuit court, which entered an order on October 12, 1995,
stating, in relevant part, that "[t]he amount of arrears was
established previously by the Juvenile & Domestic Relations
District Court at $21,989.33, upon which amount this Court enters
judgment plus interest from September 22, 1989 at the rate of nine
percent."
On December 12, 1997, the circuit court entered two orders
that each addressed the child support arrearage. The two orders,
however, were inconsistent. One of the orders, entitled "Order
for Child Support Arrearage" stated, in relevant part, as follows:
A question arose as to the interest rate on the arrearage owed by [husband] to [wife] for child support. IT IS ORDERED that the Order of this Court entered on October 2 [sic], 1995, is amended to establish the arrearage for child support at $21,989.33. That amount of arrearage varied, starting on
- 2 - September 22, 1989, but gradually increased to the amount indicated, and that the amount of arrearage plus interest from September 22, 1989 to June 30, 1991 was at the rate of eight percent (8%), and from July 1, 1991 is at the rate of nine percent (9%) per year.
(Emphasis added.) As originally drafted, the order contained the
language "as of June 23, 1995" following the phrase "the arrearage
for child support," but counsel for the parties struck through the
language and initialed the change. The order was endorsed by
counsel for both parties.
The other order, entitled "Order for Change in Child
Support," provided in a statement compliant with Code § 20-60.3
that "[a] support arrearage exist [sic] as of Sept. 22, 1989 in
the amount of $21,989.33." As originally drafted, the date
referenced was "June 23, 1995," but counsel for the parties struck
through it, inserted "Sept. 22, 1989" in its place, and initialed
the change. This order was also endorsed by counsel for both
parties.
On August 31, 2000, the Virginia Department of Social
Services, Division of Child Support Enforcement (DCSE), noting
that it had to "interpret orders literally" and that its
calculation was "based on a plain meaning reading" of the orders
entered December 12, 1997, notified husband that it was
"carrying an arrears balance totaling $71,686.16." DCSE
indicated that it would not oppose husband's motion to correct
the Order for Change in Child Support under Code § 8.01-428(B)
- 3 - and that husband's calculation of the arrearage as of July 7,
2000 —- $18,924.17 —- was "probably correct."
Husband filed a motion to correct the alleged error in the
Order for Change in Child Support under Code § 8.01-428(B), and
the trial court held a hearing on the motion on September 18,
2000. No evidence was presented at the hearing as to why counsel
for the parties changed the dates in the two orders entered on
December 12, 1997. Wife did not argue that an arrearage of
$21,989.33 actually existed as of September 22, 1989, as recited
in the Order for Change in Child Support. Instead, she argued the
order was not amendable under Code § 8.01-421.
After hearing evidence on the motion, the trial court
stated it was conceded that, in changing the date in the Order
for Change in Child Support from June 23, 1995, to September 22,
1989, "an error . . . was made by the lawyers for each side."
The court concluded that the Order for Change in Child Support
was incorrect as to the amount of the child support arrearage.
"[T]o not correct this," the court said, "is to really give a
windfall to [wife]." The trial court also concluded that the
Order for Child Support Arrearage, which indicated that the
arrearage merely began to accrue on September 22, 1985, and only
"gradually increased" to $21,989.33, correctly stated the
arrearage "situation."
On November 15, 2000, the trial court entered an order
striking the statement regarding the arrearage from the Order for
- 4 - Change in Child Support, affirming the arrearage amount recited
in the Order for Child Support Arrearage, and finding that the
child support arrearage as of September 18, 2000 was $17,991.56.
The final paragraph of the trial court's order provided, in
pertinent part, as follows:
Should neither party file a notice of appeal in this case, upon expiration of the time for filing an appeal [husband] shall pay forthwith to DCSE the sum of $17,991.56. Such payment shall be in full satisfaction of [husband's] child support obligations to [wife].
(Emphasis added.) It is from this order that wife now appeals.
II. ANALYSIS
"[W]e review the trial court's statutory interpretations and
legal conclusions de novo." Timbers v. Commonwealth, 28 Va. App.
187, 193, 503 S.E.2d 233, 236 (1998).
Wife admits on appeal that, as of September 18, 2000,
$17,991.56 was the actual amount of the child support arrearage.
She contends, however, that the trial court erred in finding
that the alleged error in the Order for Change in Child Support
was subject to revision under Code § 8.01-428(B). 1 We disagree.
1 Wife also argues on appeal that the trial court erred in entering the order of November 15, 2000 because it "contains no nunc pro tunc entry." We will not consider this argument, however, as it was never raised before the trial court. See Rule 5A:18; Buck v. Commonwealth, 247 Va. 449, 452-53,
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Clements Argued at Richmond, Virginia
TERI C. JERNIGAN MEMORANDUM OPINION * BY v. Record No. 3002-00-2 JUDGE JEAN HARRISON CLEMENTS NOVEMBER 27, 2001 DARYL W. CLAYTON
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL James A. Luke, Judge
Neil Kuchinsky (Kuchinsky & Associates, P.C., on brief), for appellant.
Stefan M. Calos for appellee.
Teri C. Jernigan (wife) appeals from the trial court's order
amending, upon the motion of Daryl W. Clayton (husband), a prior
order of the trial court with respect to the amount of the child
support arrearage owed by husband. On appeal, wife contends the
trial court erred in amending the prior order because the alleged
error was not correctable under Code § 8.01-428(B) and in
conditioning the full lump-sum payment of the child support
arrearage upon neither party appealing the court's order. For the
reasons that follow, we affirm the decision of the trial court and
remand this case for implementation of the trial court's order
that husband make full lump-sum payment of the arrearage.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
I. BACKGROUND
On February 28, 1995, the juvenile and domestic relations
district court entered an order stating, in relevant part, that
"[t]he amount of arrears is established as $21,989.33, upon which
amount the Court enters judgment plus interest from September 22,
1989 at the rate of nine percent." That order was appealed to the
circuit court, which entered an order on October 12, 1995,
stating, in relevant part, that "[t]he amount of arrears was
established previously by the Juvenile & Domestic Relations
District Court at $21,989.33, upon which amount this Court enters
judgment plus interest from September 22, 1989 at the rate of nine
percent."
On December 12, 1997, the circuit court entered two orders
that each addressed the child support arrearage. The two orders,
however, were inconsistent. One of the orders, entitled "Order
for Child Support Arrearage" stated, in relevant part, as follows:
A question arose as to the interest rate on the arrearage owed by [husband] to [wife] for child support. IT IS ORDERED that the Order of this Court entered on October 2 [sic], 1995, is amended to establish the arrearage for child support at $21,989.33. That amount of arrearage varied, starting on
- 2 - September 22, 1989, but gradually increased to the amount indicated, and that the amount of arrearage plus interest from September 22, 1989 to June 30, 1991 was at the rate of eight percent (8%), and from July 1, 1991 is at the rate of nine percent (9%) per year.
(Emphasis added.) As originally drafted, the order contained the
language "as of June 23, 1995" following the phrase "the arrearage
for child support," but counsel for the parties struck through the
language and initialed the change. The order was endorsed by
counsel for both parties.
The other order, entitled "Order for Change in Child
Support," provided in a statement compliant with Code § 20-60.3
that "[a] support arrearage exist [sic] as of Sept. 22, 1989 in
the amount of $21,989.33." As originally drafted, the date
referenced was "June 23, 1995," but counsel for the parties struck
through it, inserted "Sept. 22, 1989" in its place, and initialed
the change. This order was also endorsed by counsel for both
parties.
On August 31, 2000, the Virginia Department of Social
Services, Division of Child Support Enforcement (DCSE), noting
that it had to "interpret orders literally" and that its
calculation was "based on a plain meaning reading" of the orders
entered December 12, 1997, notified husband that it was
"carrying an arrears balance totaling $71,686.16." DCSE
indicated that it would not oppose husband's motion to correct
the Order for Change in Child Support under Code § 8.01-428(B)
- 3 - and that husband's calculation of the arrearage as of July 7,
2000 —- $18,924.17 —- was "probably correct."
Husband filed a motion to correct the alleged error in the
Order for Change in Child Support under Code § 8.01-428(B), and
the trial court held a hearing on the motion on September 18,
2000. No evidence was presented at the hearing as to why counsel
for the parties changed the dates in the two orders entered on
December 12, 1997. Wife did not argue that an arrearage of
$21,989.33 actually existed as of September 22, 1989, as recited
in the Order for Change in Child Support. Instead, she argued the
order was not amendable under Code § 8.01-421.
After hearing evidence on the motion, the trial court
stated it was conceded that, in changing the date in the Order
for Change in Child Support from June 23, 1995, to September 22,
1989, "an error . . . was made by the lawyers for each side."
The court concluded that the Order for Change in Child Support
was incorrect as to the amount of the child support arrearage.
"[T]o not correct this," the court said, "is to really give a
windfall to [wife]." The trial court also concluded that the
Order for Child Support Arrearage, which indicated that the
arrearage merely began to accrue on September 22, 1985, and only
"gradually increased" to $21,989.33, correctly stated the
arrearage "situation."
On November 15, 2000, the trial court entered an order
striking the statement regarding the arrearage from the Order for
- 4 - Change in Child Support, affirming the arrearage amount recited
in the Order for Child Support Arrearage, and finding that the
child support arrearage as of September 18, 2000 was $17,991.56.
The final paragraph of the trial court's order provided, in
pertinent part, as follows:
Should neither party file a notice of appeal in this case, upon expiration of the time for filing an appeal [husband] shall pay forthwith to DCSE the sum of $17,991.56. Such payment shall be in full satisfaction of [husband's] child support obligations to [wife].
(Emphasis added.) It is from this order that wife now appeals.
II. ANALYSIS
"[W]e review the trial court's statutory interpretations and
legal conclusions de novo." Timbers v. Commonwealth, 28 Va. App.
187, 193, 503 S.E.2d 233, 236 (1998).
Wife admits on appeal that, as of September 18, 2000,
$17,991.56 was the actual amount of the child support arrearage.
She contends, however, that the trial court erred in finding
that the alleged error in the Order for Change in Child Support
was subject to revision under Code § 8.01-428(B). 1 We disagree.
1 Wife also argues on appeal that the trial court erred in entering the order of November 15, 2000 because it "contains no nunc pro tunc entry." We will not consider this argument, however, as it was never raised before the trial court. See Rule 5A:18; Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994); Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).
- 5 - Code § 8.01-428(B) provides:
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.
Thus, the trial court may amend an order at any time to
correct an error arising from oversight. "[T]he language of the
statute clearly is broad enough to cover more than errors
committed by the clerk or one of the clerk's employees." Lamb
v. Commonwealth, 222 Va. 161, 165, 279 S.E.2d 389, 392 (1981).
However, "[t]o invoke such authority the evidence must clearly
support the conclusion that an error has been made." Artis v.
Artis, 10 Va. App. 356, 359-60, 392 S.E.2d 504, 506 (1990).
Here, the interlineated change of the date in the Order for
Change in Child Support rendered that order inconsistent with
the Order for Child Support Arrearage, entered the same day, and
with the previous orders entered in the case that addressed the
child support arrearage. As DCSE and the trial court noted, and
as wife effectively conceded, it conferred upon wife a
substantial windfall to which she was not reasonably entitled.
Notwithstanding her concession, wife argues that the
discrepancy in the Order for Change in Child Support did not
arise from oversight because the interlineation in that order
was initialed by the attorneys for both parties. However, she
offered no explanation as to why the change was made.
- 6 - "In the absence of any explanation as to why the parties
and court might have intended to include inconsistent provisions
or how both could be enforceable, the trial court had clear and
convincing evidence to support its finding of a clerical error
justifying correction." Cass v. Lassiter, 2 Va. App. 273, 278,
343 S.E.2d 470, 473 (1986); see also Artis, 10 Va. App. at 360,
392 S.E.2d at 506 (noting that, when no explanation is offered
as to why parties made changes in language in in-court
stipulation, court may presume that inconsistencies therein were
unintended and are correctable). Accordingly, we hold that the
trial court did not err in amending the Order for Change in
Child Support to correct the error therein.
Wife also argues that the final paragraph of the order
entered by the trial court on November 15, 2000 penalized her
for appealing the order by relieving husband of having to make a
lump-sum payment of the arrearage owed. We disagree. As
husband acknowledges in his brief on appeal, the final paragraph
of the order merely stays the execution of the lump-sum payment
temporarily in the event the order is appealed.
For the foregoing reasons, we affirm the decision of the
trial court and remand for implementation of the trial court's
order that husband make full lump-sum payment of the arrearage
owed.
Affirmed and remanded.
- 7 -