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 
- 2 - 

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 jointlyowned 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 
- 3 - 

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 
- 4 - 

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 
- 5 - 

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 postjudgment 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 
- 6 - 

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 
- 7 - 

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 twentyfirst 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. 
- 8 - 

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 
- 9 - 

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 
- 10 - 

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 

 

 1The 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. 
- 11 - 

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.