COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia
ROSANNE THERESA LEBLANC GOLDMAN (WEST)
MEMORANDUM OPINION * BY
v. Record No. 2662-00-3 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 23, 2001
HENRY MARVIN GOLDMAN, III
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
Rena G. Berry for appellant.
William H. Lindsey (William H. Lindsey, P.C.,
on brief), for appellee.
Rosanne Goldman West brings this appeal contending the
commissioner in chancery 1) exceeded his authority by modifying
support arrearages, 2) erroneously found she was not entitled to
reimbursement for medical bills, and 3) improperly apportioned
sale proceeds from Florida real estate. We conclude the wife
did not object to the order that adopted and approved the
commissioner's findings for the first two questions presented.
Further, we conclude the trial court did not err in ordering the
wife to pay the husband $8,115.20, which represented his share
of the Florida money less other expenses he owed her.
Accordingly, for these reasons, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The parties married November 20, 1981, separated November
6, 1995, and divorced May 27, 1997. In a separation agreement
dated April 17, 1997, the parties waived spousal support. They
agreed to divide evenly the proceeds from the sale of the
marital residence in Virginia and the unrealized proceeds from
the sale of land in Florida. 1 The final decree of divorce
incorporated the separation agreement. It also decreed joint
legal custody of the two minor children with physical custody to
the husband, and ordered the wife to pay child support.
The parties continued to litigate after the final decree
primarily because of their changing arrangements and desires for
physical custody of the children with resulting shifts in demand
for spousal and child support. This appeal arises from a snarl
of pleadings and hearings that culminated when the wife gave
notice for a hearing to address all unresolved issues. The
husband received the notice but did not appear apparently
because the wife's attorney had not coordinated the date,
October 1, 1998, with his attorney. The husband also received
notice of tender of the order for that hearing in accord with
Rule 1:13.
The trial court entered the order November 13, 1998. It
granted the wife legal and physical custody of both children and
ordered the husband to pay $325 spousal support and $359 child
1
The parties held a $20,000 note on which they received
monthly interest payments of $200 until the balance came due.
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support monthly. It found the husband delinquent in both child
and spousal support and entered judgments of $5,850 against him
for each arrearage. The order was a final order, and the
husband did not appeal.
On June 16, 1999, the wife filed a motion for the husband
to show cause for failure to pay. On September 22, 1999, the
trial court suspended its November 13, 1998 order and referred
the remaining financial and property issues to a commissioner in
chancery.
The commissioner's report carefully reviewed the involved
procedural history after the divorce and delineated four areas
of unresolved dispute: spousal support arrearage, current and
past due child support, unreimbursed medical bills, and personal
property. The report noted the wife was not entitled to the
arrearage previously decreed because she waived spousal support
in the property settlement agreement and no order ever decreed
it. Likewise, the report noted the court never ordered the
husband to pay child support before the order of November 13,
1998. The report recommended the husband only pay past child
support from November 18, 1998 through September 1, 1999, or
$2,925. The report concluded that the wife was not entitled to
any payments for medical bills because she had not maintained
insurance for one child as previously ordered nor submitted
evidence of out-of-pocket medical expenses. Finally, the report
allocated the proceeds received from the Florida property.
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The trial court heard the wife's exceptions to the
commissioner's report on March 21, 2000 and marked the report
"confirmed." By order dated May 3, 2000, it approved the
findings and adopted the concluding recommendations made for
each area of dispute, though it updated the totals for accruals
occurring after the commissioner's calculations. The trial
court decreed the wife was not entitled to any arrearage for
spousal support, she was only entitled to an arrearage in child
support from November 18, 1998 through September 1, 1999 of
$2,925, she was not entitled to reimbursement for any medical
bills, and she owed the husband half the principal payment
received by her on the Florida note, $10,000, and half the
interest received by her over the previous two years, $2,400.
The trial court resolved all objections to the
commissioner's report in a consent order to which neither party
objected nor excepted. In fact, both parties endorsed the order
by counsel as "We ask for this Order." It was a final order and
removed the case from the docket. On June 8, 2000, the trial
court reinstated the case on the husband's motion that he had
received a check from the wife that did not comply with the
previous order. The wife objected to the reinstatement because
the issue had been "properly adjudicated." By order entered
October 16, 2000, the trial court ordered the wife to pay the
husband $8,115.20, representing his share of the Florida
proceeds less amounts he owed her.
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This appeal arises from the wife's exceptions to the
October 2000 order. All but one of the exceptions relate to the
initial decision to refer matters to the commissioner in
chancery or to the report made by the commissioner. Those
issues were before the court when it entered the earlier consent
order on May 3, 2000 that adjudicated the matters raised by
exception to the commissioner's report.
The first question presented on appeal is primarily an
argument that the trial court cannot change its earlier ruling
that the husband owed arrearages of $5,850 each for child and
spousal support. The wife maintains the order of November 13,
1998 was a final order, and after 21 days with no appeal, the
judgment is final. Her argument is correct. "The Rule is
clear. After the expiration of 21 days from the entry of a
judgment, the court rendering the judgment loses jurisdiction of
the case, and absent a perfected appeal, the judgment is final
and conclusive." Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756,
758 (1987) (citations omitted). Though the judgment for
arrearages was incorrect as later realized by the commissioner
in chancery and the trial court, the husband could not complain
because he "was the architect of his own misfortune." Landcraft
Company, Inc. v. Kincaid, 220 Va. 865, 874, 263 S.E.2d 419, 425
(1980). He would have been bound by the final judgment that he
permitted to arise.
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We find, however, the wife is in the same plight as the
husband. The wife requested the trial court enforce the
judgment for arrearages by contempt and moved it to rule on
several pending motions. When the trial court took up the
matters and referred them to the commissioner, it had the
parties before it and had authority over the subject matter of
their dispute. The wife excepted to the commissioner's report,
but she did not specify the objections she now makes. Most
importantly, she consented to the order accepting the
commissioner's report and correcting the earlier order fixing
erroneous arrearages. That was a final order, not appealed,
entered more than 21 days before the next action. For the same
reasons the wife argues the husband is bound by the November 13,
1998 final order, she is bound by the May 3, 2000 final order.
Though she argues that she did not understand the May order
until October, she is the architect of her misfortune by
consenting to the earlier final order. Fortunately, the two
failures to act timely cancel themselves, and the end result is
correct.
The wife's consent to the order of May 3, 2000 also
forecloses consideration of her second question presented.
While she did raise the issue in her exceptions to the
commissioner's report, she consented to the order that
adjudicated the issue. The judgment denying reimbursement for
medical bills became final and conclusive.
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The final question presented by the wife, apportionment of
the Florida sale proceeds, arises from the last final order.
That order of October 16, 2000 decreed the wife owed $8,115.20,
which was the husband's share of the proceeds from the Florida
sale offset by amounts the trial court had ordered him to pay
her. The trial court had previously decreed various sums owed
by the parties, but it had not offset them into a single
obligation. The wife concedes that she received the Florida
sale proceeds and the husband was entitled to half. She asserts
that she impressed the funds in her control with a trust because
she claimed he owed her for the support arrearages. However,
she was not entitled to offset those claims in direct opposition
to unappealed final orders which denied the arrearages.
For the reasons stated, we affirm.
Affirmed.
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