COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpatr ick, Judges Co leman and Frank Argued at Salem, Virginia

DAVID COLEMAN MEMORANDUM OPINION * BY v. Record No. 1441-99-3 JUDGE SAM W. COLEMAN III APRIL 25, 2000 COMMONWEALTH OF VIRGINIA, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFO RCEMENT,

ex rel . BRENDA HUTCHERSON

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE William N. Alex ander, Judge David Coleman, pro se . Ellen L. Reynolds, Sp ecial Counsel (Alice G. Burlinson, Regional Spec ial Counsel; Mark L. Earley, Attorney General; Ashley L. Taylor, Jr., Deputy Attorney General; Robert B. Cousins, Jr., Senior Assistant Attorney General; Craig M. Burs hem, Regional Special Counsel, on brief), for appellee.

David Coleman appe als the circuit court order modifying his child support obli gation and ordering him to pay an arrearage of $1,094.70 and inte rest as of April 30, 19 99. On appe al, Coleman argues that the trial court erred in ordering th at he pay the arrearage beca use the record do es not contain an y evidence to support a finding that such an arrearag e was owed. At oral argument, coun sel for the Depart ment of Social Services (DSS)

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.- 2 - conceded that th e record contains no pl eadings or evidence to support the provis ion in the trial court's order of May 24, 1999, or the nunc pro tunc order of Augu st 10, 1999, 1 setting a child support arrearag e of $1,094.70. Accordingly, we reverse the trial court as to the award of arrearage and re mand the matter to the trial court with directions to vacate that pr ovision of the court's prior orde rs without prejud ice to Brenda Hu tcherson or DSS as to any claims of arrearage. Coleman further argued that the trial court erre d by vacating the May 24, 1999 order and entering an order nunc pro tunc after twenty-one days. Cole man argued that, becaus e the court could not enter an order after tw enty-one days, the ju venile and domestic relations dist rict court order setting child supp ort at $298.58 per month would be the final contro lling support orde r. However, because that order wa s appealed to the ci rcuit court and was a nullity, the last ef fective order, if Coleman's argument had merit, would have been the prior chil d support order of $355 per month. In addition, a nunc pro tunc order correcti ng a clerical error can be entered af ter twenty-one days from entry of the final order without violating Rule 1:1. A trial court may enter an order nunc pro tunc to reflect judicial action that was, in

1 The nunc pro tunc order is part of the appendix and was referenced in the briefs and at oral argument by both parties but was not sent to this Court as a part of the trial court record.- 3 - fact, taken or to correct defects or omissions in the record so as to make the record conform to actual prior events. See Code § 8.01-428(B). Code § 8.01-428(B) authorizes a trial judge to correct the judge's own errors and omissions. See Nelson v. Commonwealth , 12 Va. App. 835, 837-38, 407 S.E.2d 326, 327-28 (1991); see also Dorn v. Dorn , 222 Va. 288, 291, 279 S.E.2d 393, 394-95 (1981). The trial court did not err in entering the order nunc pro
tunc to correct the clerical error reflected in the amount of the support obligation. At oral argument, appellant requested and acquiesced in the trial court's determination of child support in the amount of $337.05 effective August 18, 1998. Accordingly, we reverse the trial court's award of child support arrearage and remand with directions to the trial court to vacate that award, without prejudice, and we affirm the trial court's child support modification. Reversed and remanded, in part, and affirmed, in part.