COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Bray 

Argued at Richmond, Virginia 

THERESA P. TAYLOR 

 MEMORANDUM OPINION* BY 

v. Record No. 2694-96-2 JUDGE JAMES W. BENTON, JR. 

 JUNE 3, 1997 

JAMES L. TAYLOR 

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL 

W. Park Lemmond, Jr., Judge 

 J. Larry Palmer (Thomas L. Gordon; Palmer & 

Eakin; Gordon, Dodson & Gordon, on briefs), 

for appellant. 

 Lawrence D. Diehl for appellee. 

 Theresa P. Taylor appeals from an amended divorce decree, 

entered September 12, 1996, nunc pro tunc to February 28, 1995. 

She contends that the trial judge was barred by Rule 1:1 from 

amending the decree to address a substantive contested issue 

because more than twenty-one days had elapsed from entry of the 

final decree. For the reasons that follow, we affirm the decree. 

 I. 

 In this divorce proceeding, the parties requested the trial 

judge to order an equitable distribution of their property. The 

evidence proved that following the submission of evidence, the 

trial judge issued a letter opinion. The findings in that letter 

opinion pertinent to this appeal concerned the second deed of 

trust. The trial judge found as follows: 

 [T]he evidence revealed that the husband[, 

James L. Taylor,] has continued to pay the 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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first deed of trust on the marital home and 

that the wife has continued to pay the second 

deed of trust, which represented a loan taken 

out for repayment of overextended credit card 

accounts. The wife did all of the purchasing 

with the credit cards; however, the evidence 

was not controverted that these expenditures 

were for the general benefit of the family. 

 * * * * * * * 

 With regard to marital debt, the Court orders 

that the husband pay one-half of the amount 

due on the second deed of trust each month 

until paid in full commencing with the 

payment due in December, 1994. The basis of 

this ruling is that while the wife made all 

the charges to the charge cards for which the 

second deed of trust proceeds were used, the 

purchases were for general family purposes 

and not strictly for the wife's purposes. 

 The trial judge entered a final divorce decree on February 

28, 1995, terminating the marriage of Theresa and James Taylor 

and ordering a distribution of their property. Consistent with 

the findings in the opinion letter, the decree contained the 

following provisions concerning the marital residence. 

 1. The marital home be sold and after the 

husband's separate share is paid from the net 

proceeds ($4,798.10), the balance is to be 

divided equally, or 

 2. The husband may elect to purchase the 

wife's equity (one-half $7,504.71) in 

exchange for the transfer of all her 

interests, rights, and title to the marital 

home to the husband. 

The decree further ordered that "[w]ith regard to [the] marital 

debt, the Court orders that the husband pay one-half of the 

amount due on the second deed of trust each month until paid in 

full commencing with the payment due in December, 1994." 
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 The husband later decided to purchase the wife's interest in 

the real property. The wife tendered a deed of assumption to the 

husband conveying her interest in the real property. However, 

the wife contended that she no longer had to pay half of the 

second deed of trust. Disagreeing with the wife's interpretation 

of the final decree, the husband demanded that the wife pay half 

of the deed of trust note and filed a motion to clarify the 

decree. 

 Following the filing of pleadings and arguments of counsel, 

the trial judge reviewed the record and issued a letter opinion 

in which he stated the following: 

 The error or oversight was that the Court 

did not specify in [its] opinion letter of 

November 4, 1994, nor the final decree, who 

was to pay the other half of the deed of 

trust note. It is unchallenged that the only 

persons obligated on this note were this 

husband and wife. The language of the 

opinion letter certainly gave the rationale 

as to why the husband was being made to pay 

one-half of the charges made almost solely by 

the wife. The letter inadvertently omitted 

the [obvious]: wife was to pay the other 

half. The Court feels there could be no 

other inference. 

On September 12, 1996, the trial judge entered an amended final 

decree nunc pro tunc to February 28, 1995 ordering the wife to 

pay one half of the second deed of trust note. 

 II. 

 "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 
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entry, and no longer." Rule 1:1. However, Code § 8.01-428(B) 

provides as follows: 

 Clerical 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) covers more than errors committed by the 

clerk of courts or one of his or her employees." Nelson v. 

Commonwealth, 12 Va. App. 835, 837, 407 S.E.2d 326, 328 (1991). 

It also authorizes a trial judge to correct the judge's own 

errors and omissions. See id. at 837-38, 407 S.E.2d at 328; see

also Dorn v. Dorn, 222 Va. 288, 291, 279 S.E.2d 393, 394 (1981). 

 However, in making corrections, the trial judge must be guided 

by the following rule: 

 An order entered nunc pro tunc cannot create 

a fiction that an act not yet performed has 

already occurred. Rather, the power of the 

trial court to amend by nunc pro tunc order 

is restricted to placing upon the record 

evidence of judicial action which has already 

been taken, but was earlier omitted or 

misstated in the record. 

Holley v. City of Newport News, 6 Va. App. 567, 568, 370 S.E.2d 

320, 321 (1988) (citation omitted). 

 The evidence proved that the original letter opinion and 

final decree expressly directed the husband to pay one half of 

the second deed of trust. Although the decree did not state who 

was to pay the other half, implicit in the final decree is the 

conclusion that the remaining half was the wife's responsibility. 
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 Indeed, when the trial judge ordered the husband to pay one half 

of the second deed of trust, that decision was made in light of 

the uncontested fact that the wife had continuously and solely 

paid the full monthly payment on the second deed of trust. The 

decree merely required the husband to pay a portion of the 

payment that the wife was making; it did not relieve the wife of 

the obligation to continue paying the remaining one half. We 

hold that the amended final decree clarified a decision already 

made but not clearly expressed -- that the wife remained 

responsible for payment of one half of the second deed of trust. 

 The wife contends that because the equity of the property 

was reduced by the amount of the outstanding deeds of trust, she 

now is being required to make double payments. Rule 5A:18 bars 

our consideration of this claim. The wife, who was originally 

paying the full amount of the second deed of trust, did not raise 

this objection upon the entry of the original final decree. That 

decree clearly did not order the husband to assume full 

responsibility for the second deed of trust in the event he 

exercised his right to purchase the property. Furthermore, no 

evidence in the record suggests any error or oversight in that 

ruling. Any inequity, if any, in the division of the marital 

property and debts was apparent under the terms of the decree as 

originally entered and should have been objected to in a timely 

fashion. See Rule 5A:18 ("no ruling of the trial court . . . 

will be considered as a basis for reversal unless the objection 
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was stated together with the grounds therefor at the time of the 

ruling"). 

 Accordingly, we affirm the decision. 

 Affirmed.