COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia
JOY FRANCES McFADIN DECKER
OPINION BY
v. Record No. 0105-95-3 JUDGE JAMES W. BENTON, JR.
JUNE 11, 1996
JOHN G. DECKER
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
Harry F. Bosen, Jr. (Charles B. Phillips;
Phillips & Swanson, on briefs), for
appellant.
James F. Stutts (James H. Ford; McGuire,
Woods, Battle & Boothe, L.L.P., on brief),
for appellee.
More than two years after entry of a final decree of
divorce, the trial judge entered an order that purported to grant
John G. Decker credits for mortgage and tax payments he made for
property jointly owned with his former wife, Joy Frances McFadin
Decker. Those payments began during the divorce proceeding and
continued as ordered in the final decree of divorce. The wife
contends that the trial judge (1) did not have jurisdiction to
enter the order granting the credits because more than twenty-one
days had passed from entry of the final decree, (2) erred by
relying upon extrinsic evidence to prove the existence of a prior
order, (3) erred by granting the husband reimbursement for past
mortgage payments, interest, and taxes, and (4) erred in
terminating the husband's duty to pay temporary spousal support,
health insurance, and mortgage payments as of July 1994. For the
reasons that follow, we reverse the trial judge's December 14,
1994 order and remand the case to the circuit court.
I.
The wife filed a bill of complaint for divorce in 1989. On
January 25, 1990, the trial judge ordered the husband to pay
pendente lite spousal support of $7,277.45 per month. The order
permitted the husband to deduct from the monthly spousal support
amount the payments he made for taxes on real estate occupied by
the wife and for the wife's health insurance. After deductions
for taxes and insurance, the husband paid the wife $6,818.72 per
month.
The pendente lite order also provided as follows:
It further appearing to the Court that
[the husband] . . . will, voluntarily and
timely, pay all mortgage payments on jointly-
owned real estate . . . which become due
. . . prior to an equitable distribution
hearing . . . , it is ORDERED that a formal
Order directing the [husband] to make these
payments is not necessary at this time,
provided the [husband] continues to pay same
accordingly.
When the trial judge entered the pendente lite order, the wife
resided in the jointly titled Water's Edge residence, one of the
properties for which the husband agreed to pay the mortgage.
Following the equitable distribution hearing, the commissioner in
chancery recommended that the Water's Edge residence be
transferred to the wife.
Before entry of the final decree, the husband informed the
wife that he intended to pursue a claim that he should receive
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credit for principal payments made on the mortgages for the
Water's Edge residence and the other real estate transferred to
her. The final decree of divorce was entered on June 30, 1992,
and awarded the wife the Water's Edge residence. The final
decree also ordered that the residence be transferred to the wife
within ninety days and ordered that the husband "continue as
previously ordered . . . to pay the mortgages and liens
(including interest as due and payable), taxes and insurance
premiums related to the jointly held real estate until the
transfer of jointly held real estate . . . is effectuated and
until the payment of the monetary award Ordered herein has been
made in full." The final decree further ordered "that the
pendente lite spousal support order and order for payment of
. . . health insurance . . . currently in effect shall remain in
effect until the end of the calendar month in which the monetary
award granted to the [wife] is paid in full by the [husband]."
Following entry of the final decree, the trial judge held a
hearing by telephone on July 13, 1992, to consider the husband's
claim for credits. However, the trial judge did not enter an
order suspending or vacating the final decree or otherwise
memorializing any rulings made at the hearing. The record
contains no transcript of the hearing.
The husband appealed to this Court from the June 30, 1992,
final decree of divorce. See Decker v. Decker, 17 Va. App. 12,
435 S.E.2d 407 (1993). That appeal, which affirmed the rulings
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contained in the final decree, did not involve any issues
concerning the husband's claim for credits. See id.
After this Court affirmed the final decree, the husband paid
the monetary award on July 1, 1994, less deductions for credits
that he claimed. At the wife's motion, the trial judge
considered the propriety of the husband's deductions for credits
and ruled by order entered December 14, 1994, as follows:
1. That the [husband] is entitled to 100%
credit for any principal payments made by him
after the date of the telephone hearing of
July 13, 1992 toward the Water's Edge
mortgage encumbering Lots 130-133, which lots
were heretofore awarded to the [wife] by this
Court's Decree of June 30, 1992.
2. That the [husband] is entitled to credit
for any interest payments he has made on the
aforesaid Water's Edge real estate mortgage
on and after September 9, 1991.
3. That the [husband] is entitled to a
credit of $6,000.00 in real estate taxes he
paid on the aforesaid Water's Edge real
estate since the date of September 9, 1991.
4. That the [husband] owes the [wife] the
sum of $6,846.22 in spousal support for the
month of July, 1994, and the sum of $442.90
as and for the [wife's] July, 1994, health
insurance, since his payment of the monetary
award was not made until July 1, 1994 and
since the [husband] withheld the aforesaid
health insurance payment due and payable in
June of 1994.
5. That the [husband] is not entitled to
credit for the interest he paid on the
monetary award at rate of 9%.
II.
Relying upon Rule 1:1, the wife argues that the trial judge
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lacked jurisdiction to enter the order of December 14, 1994,
because more than twenty-one days elapsed from entry of the final
decree. Citing an unpublished opinion from this Court and Erlich
v. Hendrick Construction Co., 217 Va. 108, 225 S.E.2d 665 (1976),
the husband argues that the December 14, 1994, order was issued
pursuant to the trial judge's continuing jurisdiction to enforce
the terms of its final decree.
Rule 1:1 provides as follows:
All final judgments, orders, and decrees
. . . 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 trial judge.
The Supreme Court has ruled that "[a]t the expiration of that 21-
day period, the trial court loses jurisdiction to disturb a final
judgment, order, or decree except for the limited authority
conferred by Code § 8.01-428." School Bd. of Lynchburg v.
Caudill Rowlett Scott, Inc., 237 Va. 550, 554, 379 S.E.2d 319,
321 (1989). In so ruling, the Supreme Court further explained
the manner in which Rule 1:1 may be tolled.
Neither the filing of post-trial or post-
judgment motions, nor the court's taking such
motions under consideration, nor the pendency
of such motions on the twenty-first day after
final judgment, is sufficient to toll or
extend the running of the 21-day period
prescribed by Rule 1:1 or the 30-day period
prescribed by Rule 5:9. The running of time
under those rules may be interrupted only by
the entry, within the 21-day period after
final judgment, of an order suspending or
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vacating the final order.
Id. at 556, 379 S.E.2d at 323 (citation omitted).
Without explanation or qualification, the final decree of
divorce in this case specifically ordered "that the pendente lite
spousal support order and order for payment of the [wife's] . . .
health insurance coverage and non-covered medical costs currently
in effect shall remain in effect until the end of the calendar
month in which the monetary award granted to the [wife] is paid
in full by the [husband]." In addition, the final decree
"further ordered [the husband] to continue as previously ordered
. . . to pay the mortgages and liens (including interest as due
and payable), taxes and insurance premiums related to the jointly
held real estate [, including the Water's Edge residence,] until
the transfer of jointly held real estate . . . is effectuated and
until the payment of the monetary award ordered herein has been
made in full." Thus, until the husband paid the monetary award
and transferred the Water's Edge residence to the wife, he was
not relieved of his obligation to fully pay the amounts
explicitly ordered in the final decree.
After entry of the final decree, the husband sought to have
the trial judge resolve his claim for a credit for the principal
payments he made on the Water's Edge mortgage. The record does
not suggest that the husband had previously sought a ruling on
that issue. Although the trial judge held a hearing by telephone
within twenty-one days of entry of the final decree, the record
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does not reflect that a ruling was made or that the decree was
suspended or vacated. See Caudill Rowlett Scott, Inc., 237 Va.
at 556, 379 S.E.2d at 323. Obviously, the final decree of
divorce "was not modified by [anything said during] the telephone
conference . . . because a court may speak only through its
written orders." Clephas v. Clephas, 1 Va. App. 209, 211, 336
S.E.2d 897, 899 (1985). A judgment is not entered "when [a trial
judge orally] rules on a motion or directs counsel to prepare an
order." Id.
The facts in Clephas are analogous to the circumstances of
this case. The trial judge issued a judgment in September
ordering Clephas to pay his wife support arrears. On the twenty-
first day after the judgment was rendered, the trial judge held a
telephone hearing. 1 Va. App. at 211, 336 S.E.2d at 898. During
that hearing, the judge announced that he was changing certain
portions of his decision, and he entered a supplemental order ten
days later. Id. at 210-11, 336 S.E.2d at 898.
On appeal, this Court held that the second order was
invalid:
The September order was not modified by the
telephone conference on October 3 because a
court may speak only through its written
orders. . . . A judgment occurs when a court
directs the clerk to enter it on the court's
order book, not when the court rules on a
motion or directs counsel to prepare an
order. . . .
The September order was not modified by
the October order since it could only be
modified within twenty-one days after its
entry. Rule 1:1.
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Id. at 211-12, 336 S.E.2d at 899 (citations omitted).
In this case, the order in which the trial judge ruled that
the husband was entitled to a credit was entered December 14,
1994 -- more than two years after entry of the final decree. In
the absence of an exception to Rule 1:1, the trial judge lost
jurisdiction over the case twenty-one days after the initial
judgment, and he could not issue a valid modification order.
"Generally, a court has 'the inherent power, based upon any
competent evidence, to amend the record at any time, when "the
justice and truth of the case requires it" so as to cause its
acts and proceedings to be set forth correctly.'" Dixon v. Pugh,
244 Va. 539, 542, 423 S.E.2d 169, 171 (1992) (citations omitted).
Moreover, by statute, "[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 on its own initiative or upon the motion of any
party and after such notice, as the court may order." Code
§ 8.01-428(B). Nothing in this record, however, establishes
either of these exceptions.
"The power to amend should not be confounded with the power
to create." Council v. Commonwealth, 198 Va. 288, 292, 94 S.E.2d
245, 248 (1956). When the trial judge entered the order on
December 14, 1994, he ruled in a manner inconsistent with the
final decree and varied the terms of the final decree. No
evidence in this record established that prior to entry of the
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final decree the trial judge had ruled that the husband's
mortgage payments could be claimed as credits and deducted from
the monetary award. The trial judge's ruling after the final
decree had become a final judgment could not create that which in
fact had not occurred.
In addition, the Supreme Court has held that Code
§ 8.01-428(B), which contains limited exceptions to Rule 1:1,
"has no application to errors in the reasoning and conclusions of
the court about contested matters." Safety Motor Transit Corp.
v. Cunningham, 161 Va. 356, 364, 171 S.E. 432, 435 (1933). The
trial judge may modify its orders only "in the rare situation
where the evidence clearly supports the conclusion that an error
covered by Code § 8.01-428(B) has been made." Dorn v. Dorn, 222
Va. 288, 292, 279 S.E.2d 393, 395 (1981). This record supports
no such conclusion.
Citing Code § 20-107.3(K), the husband argues that the trial
judge "has continuing jurisdiction 'to make any additional orders
necessary to effectuate and enforce any order' entered pursuant
to Virginia's equitable distribution statute." However, as the
Supreme Court stated in Dixon, the trial judge could not avoid
the bar of Rule 1:1 and rule on a substantive, contested issue
that was encompassed by the terms of the final decree. 244 Va.
at 543, 423 S.E.2d at 171; see Toomey v. Toomey, 251 Va. 168,
171, 465 S.E.2d 838, 839-40 (1996). The December 14, 1994 order
did not effectuate and enforce any ruling that the trial judge
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made when he had jurisdiction over the case. 1
We find unpersuasive the husband's reliance upon an
unpublished opinion from this Court in which a party successfully
appealed from a final decree. In that case, the trial judge
failed to order in the final decree that the party was entitled
to credits for mortgage payments. Unlike this case, the party
appealed from the final judgment and raised as an issue that
omission. The husband in this case appealed from the final order
in 1992, see Decker, 17 Va. App. at 12, 435 S.E.2d at 407, but
did not raise in that appeal the issue of credits.
The husband's reliance upon the following language in Erlich
also is not persuasive: "'it [is] well settled that, when a
court of equity has once acquired jurisdiction of a cause upon
equitable grounds, it may go on to a complete adjudication, even
to the extent of establishing legal rights and granting legal
remedies which would otherwise be beyond the scope of its
1
The record contains no indication that prior to final
judgment the trial judge considered and ruled upon the husband's
claim that the mortgage payments were not in the nature of
spousal support. The husband argues that the payments were made
to preserve the jointly owned property and that equitably he was
entitled to a credit for the benefit that inured to the wife.
The wife argues that based upon the clear and explicit
language in the pendente lite order and the final decree, the
payments were in the nature of spousal support. She argues that
the final decree explicitly continued as spousal support the
monthly payments she was receiving from the husband and the
payments the husband made for taxes and mortgage debt service on
the property that the wife was occupying. No evidence in the
record established that the trial judge ruled that those payments
were not in the nature of spousal support or otherwise ruled that
the husband was entitled to credits.
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authority.'" 217 Va. at 115, 225 S.E.2d at 670 (citation
omitted). This principle does not permit the trial judge to act
upon a substantive issue after entry of a final order. Rule 1:1
bars such an act.
For these reasons, we hold that the trial judge lacked
jurisdiction to enter his order of December 14, 1994.
Consequently, we need only address the further issue of whether
the trial judge erred in terminating as of July 1994 the
husband's obligation to pay spousal support, health insurance,
and mortgage payments on the Water's Edge property.
The final decree of divorce required the husband to make
those payments "until the transfer of jointly held real estate
. . . is effectuated and until the payment of the monetary award
Ordered herein has been made in full." In view of our holding in
this case and the evidence in the record that the property was
apparently not transferred until August 1994, we remand this
issue to the trial judge for reconsideration.
Accordingly, we reverse the ruling, vacate the order, and
remand the case to the circuit court.
Reversed, vacated, and remanded.
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