Opinion
Record No. 1564-93-3
Decided: June 21, 1994
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY, George E. Honts, III, Judge
Vacated
Melissa Warner Scoggins (David G. Weaver; Gentry, Locke, Rakes Moore, on briefs), for appellant.
William L. Heartwell, III (Stephen R. Wills; Natkin Heslep, P.C., on brief), for appellee.
Present: Judges Coleman, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Philip Butler Groggins, husband, appeals the trial court's retroactive modification of its unitary 1987 award of $3,000 per month to Lisa Dyal Groggins, wife, for both spousal and child support. On appeal, he contends that the trial court erred in entering a nunc pro tunc order modifying its prior unitary award so that $2,000 of the award was allocated to spousal support and $1,000 to child support. For the reasons that follow, we hold that the trial court exceeded its jurisdiction in entering the nunc pro tunc order.
Code Sec. 8.01-428(B) provides that "[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." As the Virginia Supreme Court has emphasized, this provision "authorizes a court to correct such errors 'when the record clearly supports such corrections.' " Dorn v. Dorn, 222 Va. 288, 291, 279 S.E.2d 393, 394 (1981) (quoting Cutshaw v. Cutshaw, 220 Va. 638, 641, 261 S.E.2d 52, 53 (1979)).
In Dorn, the Court held that Code Sec. 8.01-428(B) allowed the entry of a nunc pro tunc order to correct what the record showed to be "a mutually unintended drafting error contained in a divorce decree." Id. at 290, 279 S.E.2d at 394 (emphasis added). In Cutshaw v. Cutshaw, 220 Va. 638, 261 S.E.2d 52 (1979), the Court permitted belated entry of an order which the record clearly showed the judge had requested but counsel had forgotten timely to prepare. Both of these cases involved errors or omissions which the records proved were mere "oversights."
Perhaps more on point is the holding of this Court in Nelson v. Commonwealth, 12 Va. App. 835, 838, 407 S.E.2d 326, 328 (1991), in which the judge entered a nunc pro tunc order to alter the defendant's sentence. Although stating that she could not grant him probation or a lenient sentence because of the seriousness of his offense, the trial judge sentenced defendant to fifteen years with thirteen suspended. Fifteen minutes later, the judge reconvened court, announced that she had misspoken, and entered a nunc pro tunc order requiring the defendant to serve ten years of his fifteen-year sentence rather than two. Id. This Court affirmed the entry of that order on appeal on the ground that the trial judge's statements on the record clearly supported the correction. We emphasized that the original sentence was clear error in light of the judge's statement on the record that she could not grant probation or a lenient sentence due to the seriousness of the offense. Id.
In this case, by contrast, the record made in 1987 contains no indication that the trial judge did not intend to enter a unitary award of spousal and child support. In his letter opinion of June 12, 1987, the judge noted that husband had specifically requested a unitary award, and in his order of August 27, 1992, concerning husband's arrearages, the judge referred to the "Court ordered unitary child and spousal support obligation." Not until 1993, when wife made him aware of the tax consequences of the award, did the judge assert on the record that the entry of such an award had a result which he did not intend. This is not the sort of documented oversight clear on the face of the record which would support the use of a nunc pro tunc order.
This is precisely the result reached by the Supreme Court of North Dakota in Coulter v. Coulter, 328 N.W.2d 232 (N.D. 1982), cited by husband in his brief. That case involved a dispute over whether a lump sum payment agreed to by the parties in settlement of a domestic dispute should be classified as spousal support or a property settlement for tax purposes. In holding that the trial judge abused his discretion by entering a nunc pro tunc order to clarify the issue, the North Dakota Supreme Court emphasized that the purpose of such an order is
to make the record speak the truth. . . . In order to justify and assure that in correcting or amending a judgment the court is not altering what was intended to be done, there must be support therefor from the pleadings, or from the record of the decree, or from the clerk's minutes, or from the minutes or notations kept by the judge, or from the transcript, or from some proper paper or file in the case[,] or upon satisfactory evidence, parol as well as written.
Id. at 238 (quoting Aabye v. Aabye, 292 N.W.2d 92, 94 (N.D. 1980)) (emphasis added). On review of the record in that case, the court concluded that "the payments made were a type of property division and not alimony in the nature of support. The district court was not correcting a clerical error but, instead, was altering the nature of the award [entered] by the previous order and, therefore, improperly amended the . . . order nunc pro tunc." Id. at 240. The same principles apply to the case at bar.
For these reasons, we vacate the order of the trial court on the ground that it lacked jurisdiction to enter the order nunc pro tunc. Vacated.
This opinion does not address the propriety of a prospective modification of a support award based on a showing of a change of circumstances.