Zhou v. Zhou

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia

HONGYI ZHOU
OPINION BY
v. Record No. 1035-01-4 JUDGE G. STEVEN AGEE
APRIL 16, 2002
BO L. ZHOU

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Henry E. Hudson, Judge

Edward V. O'Connor, Jr. (Byrd Mische, P.C.,
on briefs), for appellant.

David M. Levy (Surovell, Jackson, Colten &
Dugan, P.C., on brief), for appellee.

Hongyi Zhou (husband) appeals a March 21, 2001 final divorce

decree, entered by the Fairfax County Circuit Court, alleging the

trial court erred in its equitable distribution determination

upon the termination of his marriage to Bo L. Zhou (wife).

Husband contends the trial court failed to properly value the

marital residence and erred in dividing stock options granted to

husband, resulting in an equitable distribution decree

inconsistent with the provisions of Code § 20-107.3. For the

following reasons, we dismiss this appeal as not timely filed.

I. BACKGROUND

The parties were married in 1990 and separated in 1999, when

wife filed for divorce. The trial court entered a final decree

of divorce, pursuant to Code § 20-91(9), on February 5, 2001,
which included the equitable distribution of the parties' marital

property.

On March 21, 2001, the trial court apparently called the

parties' counsel to chambers to advise counsel that the final

decree of February 5, 2001, had inadvertently not been filed in

the court's file in the Office of the Clerk of the Circuit Court

(Clerk's Office) after entry. With counsel present, the trial

court proceeded to enter an "Order Vacating Final Decree" on

March 21, 2001, and immediately thereafter reentered the February

5, 2001 decree under the date of March 21, 2001. The pertinent

part of the vacation order reads as follows:
This case was before the Court on March
21, 2001[,] at the request of the Clerk of
this Circuit Court. Counsel for both parties
were present.

The Court advised counsel that following
entry of the Final Decree of Divorce in this
case on February 5, 2001, the Decree was
inadvertently filed improperly in the Clerk's
Office. Consequently the parties were not
advised of the date of its entry. This
clearly prejudiced the party's [sic] rights
of appeal.

After being advised of the foregoing,
counsel for [husband] moved the Court,
pursuant to Section 8.01-428(B), Code of
Virginia, 1950, as amended, to vacate and
re-enter the Final Decree, the attorney for
[wife] objecting thereto.

Upon consideration whereof, the Court
was of the opinion that the improper filing
of the Court's Decree of February 5, 2001[,]
was a clerical mistake arising from oversight
or from inadvertent omission and should be
corrected. It is therefore

Adjudged and Ordered that [husband's]
motion to vacate and re-enter the Final
Decree in this case is GRANTED, the attorney
for [wife] noting his exception thereto.

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 Husband then filed an appeal to the reentered final decree,

challenging the trial court's equitable distribution

determination. In response, wife argues the order of vacation

was improper under Code § 8.01-428(B) and, therefore, husband's

appeal is untimely and should be dismissed. We agree.

II. ANALYSIS

Rule 5A:6 provides, in pertinent part, "[n]o appeal shall be

allowed unless, within 30 days after entry of final judgment or

other appealable order or decree, counsel files with the clerk of

the trial court a notice of appeal." See Rule 5A:6(a). Rule

5A:3 establishes that the time prescribed by Rule 5A:6 is

mandatory and a variance allowed only in the following

circumstances:

(a) . . . [A] single extension not to exceed
thirty days may be granted if at least three
judges of the Court of Appeals concur in a
finding that an extension for papers to be
filed is warranted by the intervention of
some extraordinary occurrence or catastrophic
circumstance which was unpredictable and
unavoidable. The time period for filing the
notice of appeal is not extended by the
filing of a motion for a new trial, a
petition for rehearing, or a like pleading
unless the final judgment is modified,
vacated, or suspended by the trial court
pursuant to Rule 1:1, in which case the time
for filing shall be computed from the date of
the final judgment entered following such
modification, vacation, or suspension.

(b) Except as provided in subsection (a) of
this Rule, the times prescribed in these
Rules for filing papers . . . may be extended
by a judge of the court in which the papers
are to be filed on motion for good cause
shown and to attain the ends of justice.

(Emphasis added).

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 In the case at bar, the original final decree was entered on

February 5, 2001. Therefore, under Rule 5A:6, the parties had

until March 7, 2001 (thirty days after February 5, 2001), to file

a notice of appeal. Neither party did so. The initial question

before us, then, is whether we have jurisdiction to consider an

appeal where (1) a final decree is entered to which no appeal is

taken within the required 30-day period; (2) the trial court

vacates the final decree forty-four days after its entry and

subsequently reenters it; and (3) an appeal is noted within

thirty days of reentry of the subsequent decree.
Rule 1:1, referenced in Rule 5A:3(a), 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.

* * * * * * *

The date of entry of any final judgment,
order, or decree shall be the date the
judgment, order, or decree is signed by the
judge.

(Emphasis added). The trial court lost jurisdiction to modify,

vacate or suspend the final decree of February 5, 2001, on

February 26, 2001 (twenty-one days after the original entry).

Therefore, the trial court lacked authority to modify, vacate or

suspend the award on March 21, 2001, unless a statutory exception

applies conveying that authority and superceding Rule 1:1.

The trial court, citing a motion by husband, vacated and

reentered the decree of February 5, 2001, on the authority

provided by Code § 8.01-428(B):

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 Clerical mistakes. — 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.

This code section provides the trial court with the authority

only to correct "clerical mistakes" in its decree or errors in

the record so as to cause the acts and proceedings to be set

forth correctly. See Myers v. Commonwealth, 26 Va. App. 544,

548, 496 S.E.2d 80, 82 (1998); Holley v. City of Newport News, 6

Va. App. 567, 568, 370 S.E.2d 320, 321 (1988) (the power of the

trial court to amend the record is restricted to correcting

mistakes and "placing upon the record evidence of judicial action

which has already been taken, but was earlier omitted or

misstated in the record"). The authority to correct a clerical

mistake in a decree or the record may be exercised at any time,

based on any competent evidence, "'when the justice and truth of

the case requires it.'" Netzer v. Reynolds, 231 Va. 444, 449,

345 S.E.2d 291, 294 (1986) (quoting Council v. Commonwealth, 198

Va. 288, 292, 94 S.E.2d 245, 248 (1956)).

Scrivener's or similar errors in the record, which are

demonstrably contradicted by all other documents, are clerical

mistakes. Such errors cause a final decree or the court's record

to fail to "speak the truth." See School Bd. of Lynchburg v.

Caudill Rowlett Scott, Inc., 237 Va. 550, 555, 379 S.E.2d 319,

322 (1989). Correctable "clerical mistakes" under Code

§ 8.01-428(B) include an unintended drafting error contained in a

divorce decree, Dorn v. Dorn, 222 Va. 288, 279 S.E.2d 393 (1981);
Cass v. Lassiter, 2 Va. App. 273, 343 S.E.2d 470 (1986); a

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typographical mistake made by a court reporter in transcribing a

trial transcript, Lamb v. Commonwealth, 222 Va. 161, 279 S.E.2d

389 (1981); counsel's failure to prepare an order for entry by

the trial court, Cutshaw v. Cutshaw, 220 Va. 638, 261 S.E.2d 52

(1979); and a misstatement on the record by the trial court

regarding the length of incarceration a defendant was ordered to

serve, Nelson v. Commonwealth, 12 Va. App. 835, 407 S.E.2d 326

(1991). 1

Neither party presented argument to the trial court on March

21, 2001, or any other time, that the record was erroneous or

that there was any error in the February 5, 2001 decree. No

allegation was made that the February 5, 2001 decree did not

"speak the truth." Thus, the trial court did not vacate its

final decree due to a scrivener's error or an error in the

record.

1
In Shipman v. Fletcher, 91 Va. 473, 488-89, 22 S.E. 458,
463-64 (1895), involving a statutory predecessor to Code
§ 8.01-428(B), the Supreme Court held that this code section
authorized

the court in which is rendered a judgment or
decree, in a cause wherein there is a
declaration or pleading, or in the record of
the judgment or decree, any mistake,
miscalculation, a misrecital of any name,
sum, quantity or proceedings, or when there
is any verdict, report of a commissioner,
bond, or other writing whereby such judgment
or decree may be safely amended; . . . or, in
the vacation of the court in which any such
judgment or decree is rendered, the judge
thereof may on the motion of any party, amend
such judgment or decree according to the
truth and justice of the case.

The Supreme Court of Virginia qualified these errors to be
corrected "misprisions of the clerk" and "clerical misprisions of
the court."
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 The sole basis cited by the trial court for acting under

Code § 8.01-428(B) on March 21, 2001, was that the February 5,

2001 decree was improperly filed in the Clerk's Office resulting

in a lack of notice to the parties for purposes of appeal.

Husband contended, and the trial court agreed, that the inept

filing system of the Clerk's Office, which failed to timely

notify him of the decree's entry, constituted a "clerical

mistake" within the purview of Code § 8.01-428(B). We disagree.

Although subsection (B) includes authority to correct errors

in the record "arising from oversight or from an inadvertent

omission," the incorrect filing of the February 5, 2001 decree is

not a clerical mistake as that term is used in Code

§ 8.01-428(B). Husband has provided no case authority for the

proposition that the clerk's misfiling of a decree is a "clerical

mistake" as that term has been construed under Code

§ 8.01-428(B). See School Bd. of Lynchburg, 237 Va. 550, 379

S.E.2d 319 (erroneous information that final order had not been

entered conveyed over the telephone by an employee of the Clerk's

Office to counsel is not a clerical error under Code

§ 8.01-428(B)); see generally Hickson v. Hickson, 34 Va. App.
246, 540 S.E.2d 508 (2001). Rather, a filing error committed by

the Clerk's Office, which affects notice to the parties and their

right to appeal, comes directly within the purview of Code

§ 8.01-428(C).

Code § 8.01-428(C) provides:

Failure to notify party or counsel of final
order. — If counsel, or a party not
represented by counsel, who is not in default
in a circuit court is not notified by any
means of the entry of a final order and the

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 circuit court is satisfied that such lack of
notice (i) did not result from a failure to
exercise due diligence on the part of that
party and (ii) denied that party an
opportunity to file an appeal therefrom, the
circuit court may, within sixty days of the
entry of such order, grant the party leave to
appeal. The computation of time for noting
and perfecting an appeal shall run from the
entry of such order, and such order shall
have no other effect.

Upon notice of the filing error, husband could have asked the

trial court to make a determination as to whether subsection (C)

was applicable in this case and enter an order with the necessary

findings under that subsection to permit a timely appeal.

Clearly, husband then knew more than twenty-one days had passed

since February 5, 2001. He knew whether he had or had not

received notice of the decree's entry and whether he had timely

filed an appeal. Because husband failed to act under subsection

(C) and the trial court did not consider this provision, no

findings were made as to (1) husband's actual lack of notice and

(2) whether husband exercised due diligence after February 5,

2001, to determine if the final decree had been entered. Without

these requisite findings, we are unable to determine whether the

trial court would have granted appellant leave to appeal under

subsection (C), assuming such action would not be otherwise

procedurally barred.
Code § 8.01-428(B) does not provide the trial court with

authority to vacate and reenter a final decree for the sole

purpose of extending the filing deadline upon the realization

that the parties were not timely notified of the decree's entry.

The authority and procedure to extend the filing deadline, where

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lack of notice is the issue, is provided only under subsection

(C).

We do not read subsection (B)'s grant of authority to

correct errors "arising from oversight or from an inadvertent

omission" to include the filing error committed by the Clerk's

Office in this case. Not only is there no case law precedent for

such a reading of subsection (B), basic canons of statutory

construction would exclude such an interpretation because it

would render subsection (C) superfluous.
"Under basic rules of statutory construction, we examine the

statute in its entirety, rather than by isolating words or

phrases." Ford v. Commonwealth, 33 Va. App. 682, 688, 536 S.E.2d

467, 470 (2000) (citing Ragan v. Woodcroft Village Apartments,

255 Va. 322, 325, 497 S.E.2d 740, 742 (1998)). Therefore, we

examine all of the provisions of Code § 8.01-428 to determine the

legislative intent. Subsection (C) was added to Code § 8.01-428

in 1993, after School Bd. of Lynchburg, 237 Va. 550, 379 S.E.2d

319, and deals explicitly with the effect on appeal rights of the

failure to give notice of entry of a final order. If we

construed the facts in the case at bar to constitute a clerical

mistake under subsection (B), then subsection (C) would be

superfluous. We will not construe the statute in this manner.

"Well established 'principles of statutory construction require

us to ascertain and give effect to the legislative intent.'"
Brooks v. Commonwealth, 19 Va. App. 563, 566, 454 S.E.2d 3, 4

(1995) (citation omitted). "When new provisions are added to

existing legislation by amendment, we presume that . . . the

legislature 'acted with full knowledge of and in reference to the

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existing law upon the same subject and the construction placed

upon it by the courts[,] . . . that the legislature acted

purposefully with the intent to change existing law." Burke v.

Commonwealth, 29 Va. App. 183, 188, 510 S.E.2d 743, 745-46 (1999)

(citations omitted). When "'the several provisions of a statute

suggest a potential for conflict or inconsistency,'" we must

construe such "'provisions so as to reconcile them and to give

full effect to the expressed legislative intent.'" Herrel v.

Commonwealth, 28 Va. App. 579, 585, 507 S.E.2d 633, 636 (1998)

(citation omitted).
In this case the trial court entered a final decree on

February 5, 2001, and neither party filed an appeal within the

requisite thirty days. The trial court lacked authority to

vacate its final decree in an effort to extend husband's filing

deadline due to lack of notice of entry of the decree. As the

timely filing of an appeal is jurisdictional, we have no

authority to hear the instant appeal and, thus, cannot rule on

the assignments of error presented by the appellant.

Accordingly, this appeal is dismissed.
Dismissed.

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