Roseanne T.L.Goldman (West) v. Henry M. Goldman,III

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.

- 2 -
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.

- 3 -
 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.

- 4 -
 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.

- 5 -
 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.

- 6 -
 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.

- 7 -