COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Cha fin and Senior Judge Clements Argued at Lexington, Virginia

TIMOTHY WAYNE AMOS MEMORANDUM OPINION * BY v. Record No . 1779-17-3 JUDGE ROBERT J. HUMPHREYS JULY 31, 2018 MARY LOU DOOLEY AMOS

FROM THE CIRCUIT COUR T OF TAZEWELL COUNTY Richard C. Patterson, Judge Sharon R. Chickering (Trial Lawy ers, P.C., on brief), for app ellant. Robert M. Galumbeck (Galumbeck and Kegley, on brief), for appellee.
Timothy Wayne Amos (“husband”) a ppeals the decision of the Circ uit Court of Tazewell County (“circuit court”) dated September 25, 2017, finding no c lerical error concerning the period used to calculate the por tion of his railroad pension gr anted to Mary Lou Dooley Amos (“wife”) in the final decr ee of divorce, dated October 26, 1994

. 1 That decree, made pursuant to Code § 20-91, granted wife a portion of husband’s railroad reti rement benefits payable when he began receiving them, and calcula ted at a “sum equal to one-thi rd of the product of the payment received multiplied by the dividend of the total number of year s of employment, upon which the

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Wife argues that husband’s appeal is procedurally defaulted on several grounds, most pertinently that husband faile d to post the appeal bond in a ti mely manner as required by Rule 5A:6(a) and Code § 8.01-676.1. Husband’s delay would once have been fatal, but changes to the code explicitly state that such bonds are not to be cons idered jurisdictional and that the time for filing the bond may be extended by this Court. See Co de § 8.01-676.1(P); Foster v. Foster, 237 Va. 484, 378 S.E.2d 826 (1989). Husband has not de faulted on these or other grounds.UNPUBLISHED- 2 - pension is based, divided by the nu mber of those years during w hich the parties were married.” Husband retired in 2016 and began r eceiving payments, he subseq uently sought reinstatement of the divorce decree on the circuit court’s docket for purposes o f correcting two clerical errors, the court acquiesced, and argument was heard on May 12, 2017. Wife agreed to the first of hus band’s argued clerical errors—th at the numerator and denominator used to calculate wif e’s interest were transposed a nd wife’s share should have been calculated as the number of years the parties were married divi ded by the total number of years husband was employed. 2 However, husband also argued that the figure used in this cal culation should have been the length of the marriage until separation, r ather than until the entry of the final divorce decree terminating t he marriage. The circuit cou rt entered an order correcting the error agreed to by the parties, bu t did not find that the secon d point argued by husband qualified as a clerical error because the decree of divorce stated no sep aration date, and the circuit court could not discount the fact that the calculation of the marital share may have been the result of an agreement between the parties . Husband now appeals to this Cou rt. Code § 8.01-428 allows courts to corr ect “[c]lerical mistakes i n all judgments or other parts of the record and errors th erein arising from oversight o r from an inadvertent omission.” Code § 8.01-428(B). Such corrections may be made at any time, and on the court’s own initiative or on the motion of any party. “However, to invoke such authority the evidence must clearly support the conclusion t hat an error of oversight or in advertence has been made.” Cass v. Lassiter, 2 Va. App. 273, 277, 343 S.E.2d 470, 473 (1986). Husband argues that the period us ed in calculating wife’s benef its was a clerical error because the court measured to the end of the marriage rather th an to the date of separation. Code

2 Since husband was employed longer than the parties were marrie d, the decree as originally written would have multiplied wife’s share by a fact or greater than the length of their marriage, resulting in her receiv ing a larger share of the pens ion than husband.- 3 - § 20-107.3, which defines the share of a pension the spouse may receive, directs that “[n]o such [pension] payment shall exceed 50 p ercent of the m arital share of the cash benefits actually received by the party against whom such award is made. ‘Marita l share’ means that portion of the total interest, the right to which was earned during the ma rriage and before the last separation of the parties .” Code § 20-107.3(G)(1) (emphasis added). Husband argues tha t just as it was recognized as a cleric al error to transpose the numer ator and denominator in the pension payment calculation, it was also error to use the entire lengthof the marriage. As support for his classification of this calcula tion as clerical error, husband c ites Dorn v. Dorn, 222 Va. 288, 279 S.E.2d 393 (1981), wherein our Supreme Court corrected as a cle rical error a draf ting error in a divorce decree’s award of child s upport. Likewise, in Cass, th is Court upheld a court’s correction of conflicting spousal s upport awards as a clerical error. It is true that errors in spous al payment awards may constitute clerical errors for purposes of Code § 8.01-428(B). However, a s the Cass Court noted, the p roper standard for such corrections is that “the eviden ce must clearly support the conc lusion that an error of oversight or inadvertence has been made.” Cass, 2 Va. App. at 277, 343 S.E. 2d at 473. Here, the circuit court consider ed the absence of a separation date from the divorce decree, the inclusion of language in the divorce decree that th e parties had reached agreements, and husband’s lack of evidence as t o the substance of the menti oned agreements as ambiguity sufficient to prevent consider ing the period of calculation as error. The nature and terms of the “agreements” of the parties refe renced in the divorce decree we re not made part of the record in the circuit court or in this appeal. 3 Without knowing the terms of t hese agreements, it was

3 The decree of divorce simply sta tes that counsel “made stateme nts to the Court concerning the issues as well as agreements.”- 4 - impossible for the circuit cour t to know whether one of these a greements concerned the pension calculation. In response, husband argues that because the divorce decree sta tes that the pension award is made “in accordance with Virgini a Code Section 20-107.3” any ag reement of the parties, though referenced earlier in the decree, must not have been considered with respect to hu sband’s pension. Husband argues that without an affirmative declaration that the parties have waived equitable distribution we must assume that the pension distribution was i n error as it exceeded the “jurisdictional parameters” of Code § 20-107.3 by including the period of separation. Husband does not cite any law to support a need for this affirmative declara tion. To the contrary, Code § 20-107.3 states that “[n]othing in this section shall be construed to pr event the affirmatio n, ratification and incorporation in a decree of an agreement between the parties p ursuant to §§ 20-10 9 and 20-109.1. Agreements, otherwise valid as contracts, entered into between spouses prior to the marriage shall be recognized a nd enforceable.” Code § 20-107. 3(I). An award made in accordance with Code § 20-107.3, therefore, encourages the inclusion of agreements b etween the parties rather than prohibiting them. Further, even assuming arguendo t hat this portion of the divorc e decree was not subject to the parties’ agreements, it is unclear whether wife’s award exc eeded the limits of Code § 20-107.3(G)(1) which only state s that “[n]o such payment shal l exceed 50 percent of the marital share.” Wife was awarded one-third of husband’s pension payments m ultiplied by the sum of the length of their marriage divided by the length of husband’s emp loyment. The par ties were married in 1977 and divorced in 1994, an d husband alleges a separation period of some fifteen months. The record before us does not reflect when husband began work, and only indicates that he retired at some point in 201 6. However, even the ar gued “additional” fift een months appears insufficient to- 5 - raise wife’s portion from one-third to over one-half, and there fore the record is not clear that the statutory limitation would be exceeded. Regardless, without evidence in the record to support his assig nment of error, husband’s argument amounts to co njecture which cannot satisfy the evident iary standard outlined in Cass required to find a clerical error that should have been correct ed. We therefore find no error in the circuit court’s judgment and dec line to award attorney’s fees i n this matter. For the foregoing reasons, the j udgment of the circuit court i s affirmed. Affirmed.