COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Clements and Agee 

Argued at Richmond, Virginia 

ALVIN QUASH 

 MEMORANDUM OPINION* BY 

v. Record No. 0710-01-2 JUDGE LARRY G. ELDER 

 MARCH 5, 2002 

MARJORIE S. QUASH 

FROM THE CIRCUIT COURT OF CAROLINE COUNTY 

Horace A. Revercomb, III, Judge 

 Kelly A. Halligan (Levit, Mann & Halligan, 

P.C., on brief), for appellant. 

 Bruce E. Arkema (Cantor, Arkema & Edmonds, 

P.C., on brief), for appellee. 

 Alvin Quash (husband) appeals from a circuit court 

equitable distribution ruling holding that its previous failure 

to award Marjorie S. Quash (wife) fifty percent of an annuity 

which was marital property constituted a clerical error subject 

to correction under Code § 8.01-428(B). On cross-appeal, wife 

contends the trial court erroneously interpreted this Court's 

reversal of its spousal support award in a previous appeal, 

Quash v. Quash, No. 2761-99-2 (Va. Ct. App. June 27, 2000). We 

hold the evidence supports the trial court's ruling that it 

divided all assets equally between the parties and that the 

omission of the Occidental Life Annuity from the equitable 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
distribution award was a clerical error subject to correction 

under Code § 8.01-428(B). We also hold that the trial court's 

refusal to award spousal support was not erroneous in light of 

this Court's decision on that issue in the parties' prior appeal 

but that wife was entitled to a reservation of support. Thus, 

we deny the parties' competing requests for attorney's fees in 

this appeal, affirm the decision of the trial court, and remand 

for a reservation of spousal support. 

A. 

CLERICAL ERROR 

 Code § 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. 

This code section does not authorize a court to reconsider "what 

judgment it might have rendered while it still retained 

jurisdiction . . . and then to enter that judgment nunc pro

tunc." Davis v. Mullins, 251 Va. 141, 149, 466 S.E.2d 90, 94 

(1996) (emphasis added). However, it does authorize a court to 

correct the record to "'speak the truth,'" id. (quoting Netzer 

v. Reynolds, 231 Va. 444, 449, 345 S.E.2d 291, 294 (1986)), by 

"'placing upon the record evidence of judicial action which has 

actually been taken . . . at the proper time,'" action which 

does not involve the reacquisition of jurisdiction, id. (quoting 

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Council v. Commonwealth, 198 Va. 288, 292, 94 S.E.2d 245, 248 

(1956) (emphasis added)). See also Dorn v. Dorn, 222 Va. 288, 

291, 279 S.E.2d 393, 394-95 (1981) (noting that entry of a nunc

pro tunc order to correct a true clerical error does not violate 

Rule 1:1). "Clerical mistakes which may be corrected under the 

court's inherent power encompass errors made by other officers 

of the court including attorneys." Harris v. Commonwealth, 222 

Va. 205, 210, 279 S.E.2d 395, 398-99 (1981). A court's exercise 

of authority under Code § 8.01-428(B) is appropriate when 

competent evidence "clearly support[s] the conclusion that an 

error of oversight or inadvertence has been made." Cass v. 

Lassiter, 2 Va. App. 273, 277, 343 S.E.2d 470, 473 (1986). 

 Here, the record clearly supports the conclusion that the 

trial court awarded wife half the value of the TransAmerica 

Occidental Life Annuity in the equitable distribution 

proceedings. Although the commissioner did not set out a 

detailed list of the property he classified as marital, he noted 

in his report "an annuity with Occidental Life," which had a 

cash surrender value of $28,800.35 as of "9/30/97" and an 

"Accumulation Value" of $32,347.28 as of "3/31/98," and he 

recommended that wife "be paid 50% of the balance in all . . . 

annuity accounts previously listed in this report as of the date 

of separation." 

 The trial court "agree[d] with and confirm[ed] the 

commissioner's recommendation" regarding equitable distribution, 

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holding that "the net proceeds from all . . . annuity accounts" 

were marital property and that wife should receive fifty percent 

of those funds. However, in delineating precisely what assets 

should be divided, the court erroneously concluded that wife's 

memorandum, which purported to include all marital accounts and 

valued them at $54,225.54, contained an accurate listing of the 

parties' annuity accounts. In fact, that list accidentally 

omitted the TransAmerica Occidental Life Annuity from the 

equitable distribution, thereby reducing the total amount of 

assets to be divided. 

 Wife perpetuated this error when her counsel prepared the 

final decree at the court's direction. Although the decree did 

not specifically list the assets to be divided, it gave a total 

value of $54,225.54 for those assets, which did not include the 

value of the Occidental Life Annuity. Wife argued in the first 

appeal to this Court that the value placed on the parties' total 

assets should have been higher, but she did not specifically 

argue that this claimed error had resulted from the inadvertent 

omission of the Occidental Life Annuity from the calculations. 

Thus, in reviewing the equitable distribution award in the first 

appeal, this Court passed only on the "valuation dates and 

values for marital assets" which were actually contained in 

"wife's exhibit." Compare Kaufman v. Kaufman, 12 Va. App. 1200, 

1207-09, 409 S.E.2d 1, 5-6 (1991) (holding that trial court 

could not redetermine value of asset on remand, where value "was 

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an issue directly before this Court in the first appeal of this 

case" and this Court "specifically upheld the trial court's 

judgment concerning [the husband's] interest in [the asset]"). 

This Court was not asked to, and did not, consider whether the 

Occidental Life Annuity should have been included in the 

equitable distribution and, thus, exclusion of the annuity did 

not become the law of the case. 

 On remand from this Court, the record "clearly supports" 

the conclusion that the court awarded wife a half interest in 

all marital assets, including the Occidental Life Annuity, and 

that wife's inadvertent omission of that annuity from her list 

of accounts and values, and the trial court's failure to notice 

same, constituted a clerical error subject to correction 

pursuant to Code § 8.01-428(B). The court took no additional 

evidence and did not alter its original ruling. It merely 

corrected the record to make it "'speak the truth.'" Davis, 251 

Va. at 149, 466 S.E.2d at 94 (quoting Netzer, 231 Va. at 449, 

345 S.E.2d at 294). Compare Hart v. Hart, 35 Va. App. 221, 

230-31, 544 S.E.2d 366, 370-71 (2001) (holding that court's 

actions did not constitute correction of clerical error and 

exceeded scope of remand jurisdiction when court heard 

additional evidence regarding description of easement, an issue 

which had not been appealed). 

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B. 

SPOUSAL SUPPORT 

 In the parties' previous appeal, a panel of this Court 

reversed the trial court's spousal support award on the ground 

that the trial court failed "adequately [to] explain its reasons 

for deviating from the commissioner's decision." Although the 

trial court did not explain its reasons for deviating in the 

final decree, it incorporated into the final decree a letter 

opinion in which it analyzed the factors in Code § 20-107.1 and 

made an award of support. Implicit in the trial court's 

decision not to award support on remand is that its earlier 

letter opinion set out the only reasons it had for deviating 

from the commissioner's recommendation and that if this Court 

found its reasons constituted an inadequate explanation, it 

could not justify an award of support in contravention to the 

commissioner's recommendation. 

 Wife did not challenge this Court's prior determination 

that the trial court's reasons for deviating were inadequate, 

either by requesting a rehearing by the panel or a rehearing en

banc, or by attempting to appeal the reversal to the Supreme 

Court. Thus, this Court's determination in Quash v. Quash, No. 

2761-99-2 (Va. Ct. App. June 27, 2000), has become the law of 

the case, and the adequacy of the trial court's original 

explanation is not before us on appeal. See, e.g., Whitley v. 

Commonwealth, 260 Va. 482, 492, 538 S.E.2d 296, 301 (2000); see 

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also Kaufman, 12 Va. App. at 1209, 409 S.E.2d at 6 (citing 

Turner v. Staples, 86 Va. 300, 302, 9 S.E. 1123, 1124 (1889)). 

Wife did, however, object to the absence of a provision 

reserving her right to receive spousal support upon proof of a 

material change in circumstances, and we remand to the trial 

court to make such a reservation. See Bacon v. Bacon, 3 Va. 

App. 484, 491, 351 S.E.2d 37, 41 (1996). 

 For these reasons, we affirm the ruling of the trial court, 

deny the parties' competing requests for attorney's fees on 

appeal, and remand for a reservation of spousal support. 

Affirmed and remanded with instructions. 

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