COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Annunziata
Argued at Richmond, Virginia
ALBERT CLAYTON WHITE
OPINION BY
v. Record No. 2606-01-1 JUDGE ROSEMARIE ANNUNZIATA
JUNE 11, 2002
JACQUELYN THERESA WHITE
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Bruce H. Kushner, Judge
Halbert T. Dail for appellant.
Tommy C. Smith, III, for appellee.
The parties were divorced by final decree entered on
February 14, 2000. Thereafter, upon motion by Jacquelyn White
(wife), the trial court amended its decree, nunc pro tunc, to
correct an inconsistency regarding spousal support. It is from
this amendment that Albert White (husband) appeals. For the
reasons that follow, we affirm the decision of the trial court.
Background
The trial court assigned the issue of spousal support to a
commissioner in chancery, who recommended that husband pay
spousal support of $1,300 per month. The commissioner's report
does not address the duration of spousal support.
The original divorce decree provided, in pertinent part:
It is further ORDERED that the defendant
husband pay unto the complainant wife the
periodic sum of $1,300.00 monthly . . .
beginning on the first day of the month
after entry of this decree, and continuing
thereafter until the death or [sic] either
party or the [wife]'s remarriage, whichever
of said terminating contingencies shall
first occur.
* * * * * * *
It is further ORDERED that the following
information is hereby made a part of this
decree pursuant to the requirements of
Section 20-60.3 . . .
* * * * * * *
6. The spousal support payments which the
[husband] is ordered to pay to the [wife]
are $1,300.00 per month, commencing on the
first day of the month after entry of this
decree . . . and continuing thereafter until
the death of either party or the [husband]'s
remarriage, whichever of said terminating
contingencies shall first occur.
* * * * * * *
10. The [wife] shall be due spousal support
payments in the amount of $1,300.00 per
month . . . commencing on the first day of
the month after entry of this decree . . .
and continuing thereafter until the death of
either party or the [wife]'s remarriage,
whichever of said terminating contingencies
shall first occur.
(Emphasis added.)
Husband remarried on April 24, 2000 and ceased making
spousal support payments. On or about May 10, 2001, wife filed
a notice with the clerk of the circuit court requesting the
court to correct a clerical or typographical error in the notice
provisions of the final decree of divorce. A hearing was held
on June 20, 2001 with all parties and counsel present. On
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August 28, 2001, the trial court entered, nunc pro tunc, an
amended final decree of divorce correcting paragraph no. 6 such
that support would continue until "the death of either party or
the [wife]'s remarriage," consistent with the remainder of the
decree. (Emphasis added.)
Analysis
Husband contends the trial court lacked authority to alter
the decree pursuant to Code § 8.01-428 because neither a
clerical error nor an oversight was at issue. He also contends
that the trial court's amendment should be reversed because he
detrimentally relied upon the plain language of the decree 1 and
because it violated due process and deprived him of his
property, ex post facto, after he had waived his right to
appeal. We disagree with each of these contentions.
Code § 8.01-428 authorizes a trial court to correct
"[c]lerical mistakes in all judgments or other parts of the
record and errors therein arising from oversight or from an
inadvertent omission . . . ." "[W]hen the record clearly
supports such corrections," we will uphold a trial court's nunc
pro tunc amendment to its decree. Cutshaw v. Cutshaw, 220 Va.
638, 641, 261 S.E.2d 52, 53 (1979).
1
Husband claims that he would not have remarried but for
the fact that he believed his support obligation to wife would
cease upon his remarriage.
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In this case, the trial court found that the language at
issue in paragraph no. 6, entered for purposes of notice
pursuant to Code § 20-60.3, 2 was a scrivener's error because it
contradicted the commissioner's report, as well as two other
sections of the Final Decree. Because the record supports this
finding, we will not disturb it on appeal.
In Cass v. Lassiter, we upheld the trial court's correction
of an error, noting:
It is apparent from the irreconcilable
inconsistencies between the support
provisions in the agreement and the decree
that a drafting error occurred in preparing
one or the other. . . . 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.
2 Va. App. 273, 278, 343 S.E.2d 470, 473 (1986). Similarly, the
decree in this case contains irreconcilable inconsistencies. In
two places, the decree provides that support shall cease only
upon the death of either of the parties or the remarriage of the
"complainant," the wife. Yet, paragraph no. 6 provides that
2
Code § 20-60.3 was enacted in 1985 to comply with 42
U.S.C. 651 (1984). As required by the federal law, Virginia law
protects support obligors by requiring that all support orders
provide notice to the obligor of his or her obligations under
the court's decree. 42 U.S.C. 651. Specifically, Code
§ 20-60.3(6) requires that the order inform the obligor of the
amount of periodic support, the payment interval and the date
payments are due. In this case, one of these provisions
inaccurately reflected the court's support order as contained in
the body of the decree.
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support ceases upon the remarriage of the "defendant," the
husband. Because there is no 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," and logically determined that the error
was in paragraph no. 6, an informational, rather than
adjudicatory, provision. Id.
Husband's remaining arguments are without merit. First, a
party's detrimental reliance upon an error in a court's decree
does not preclude correction under Code § 8.01-428. Moreover,
detrimental reliance, or estoppel, is an equitable remedy
against a party and does not apply to a court's order based on a
valid statute. See Heckler v. Community Health Servs., 467 U.S.
51, 60 (1984) (holding that "the Government may not be estopped
on the same terms as any other litigant"); Miller v.
Commonwealth, 25 Va. App. 727, 736 n.4, 492 S.E.2d 482, 487 n.4
(1997) (rejecting the characterization of defendant's reliance
on misinformation from his probation officer as "entrapment by
estoppel" because the doctrine of estoppel does not apply
against the government); Sink v. Commonwealth, 13 Va. App. 544,
547, 413 S.E.2d 658, 660 (1992) ("[T]he doctrine[] of . . .
estoppel may not be employed to bar the state from exercising
its governmental functions . . . .").
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Second, the nunc pro tunc correction of an inadvertent
error did not deprive husband of his property in violation of
due process because the court did not reconsider or alter its
previous ruling. Rather, the court placed upon the record the
judicial action that had already been taken but that had been
misstated in the notice portion of the decree. Lowe v.
Commonwealth, 33 Va. App. 583, 592 n.1, 535 S.E.2d 689, 692 n.1
(2000).
For the reasons stated herein, we affirm the decision of
the trial court.
Affirmed.
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