COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Senior Judge Hodges 

Argued at Norfolk, Virginia 

ROBERT GARRETT 

 MEMORANDUM OPINION* BY 

v. Record No. 0760-95-1 JUDGE LARRY G. ELDER 

 NOVEMBER 28, 1995 

KAREN FORBES-GARRETT 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Robert B. Cromwell, Jr., Judge 

 Barry Randolph Koch (McCardell & Inman, P.L.C., 

 on brief), for appellant. 

 Jeffrey C. Flax (Kelberg, Childress & Flax, on 

 brief), for appellee. 

 Robert Garrett (husband) appeals the trial court's nunc pro 

tunc order amending the final decree of divorce under Code 

§ 8.01-428(B). Husband contends the trial court erred in finding 

there was an error in the final decree arising from oversight and 

subject to revision under Code § 8.01-428(B). Because the trial 

court did not err, we affirm the amendment of the final decree. 

 Husband and Karen Forbes-Garrett (wife) entered into a 

stipulation agreement on October 4, 1993 which provided, inter 

alia, that husband would pay spousal support to wife commencing 

upon the happening of certain contingencies involving wife's 

income and employment with husband's company. The agreement 

specifically designated when such payments were to end: "Such 

 

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

designated for publication. 
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spousal support shall continue for three years from date of Final 

Decree of Divorce, or until Wife remarries, dies or the Husband 

dies." (Emphasis added). Both parties testified before the 

commissioner on July 11, 1994 that they wanted the agreement 

approved by the trial court and made part of the final divorce 

decree. 

 The commissioner recommended the trial court approve, 

ratify, affirm, and incorporate into the final decree the terms 

of the agreement. The commissioner also recommended husband pay 

spousal support to wife as set forth in the written separation 

agreement, "continuing for three years or until the death of 

either party or the plaintiff's remarriage." Although the 

commissioner did not specify the date from which the three years 

were to run, he did state, "it being the intent hereof not to 

have the [c]ourt's decree supplant, but to incorporate the 

written separation agreement therein." 

 Counsel for husband drafted the final divorce decree, which 

wife's counsel endorsed. While the decree adopted the 

commissioner's report, it differed from the stipulation agreement 

in one key respect, namely, when the support payments would 

terminate. The decree ordered husband to pay wife spousal 

support "pursuant to and subject to the terms of the written 

Separation Agreement . . . for a period of three years from July 

1, 1993." This provision differed from the terms of the 

agreement, which obligated husband to pay spousal support for 
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three years from the date of entry of the final decree 

(October 7, 1994). As the trial court noted, this provision of 

the final decree resulted in husband being relieved of his 

support obligation fourteen months earlier than under the terms 

of the agreement. 

 Wife filed motions to correct the alleged clerical error, 

and the trial court held a hearing on the matter on January 13, 

1995. After hearing testimony from each party as to his or her 

intent, the trial court entered an order on March 9, 1995, 

modifying the final decree to reflect the terms of the agreement 

(spousal support to terminate three years from the date of the 

final decree, not July 1, 1993). 

 We hold the trial court did not err in correcting the terms 

of the parties' final decree of divorce. 

 Code § 8.01-428(B) provides: 

B. Clerical Mistakes--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. 

Thus, the trial court may amend a final decree in three 

circumstances: (1) to correct a clerical mistake; (2) to correct 

an error arising from oversight; or (3) to correct an error 

arising from an inadvertent omission. "This language 'clearly is 

broad enough to cover more than errors committed by the clerk or 

one of the clerk's employees.'" Artis v. Artis, 10 Va. App. 356, 
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359, 392 S.E.2d 504, 506 (1990)(citation omitted). "To invoke 

such authority the evidence must clearly support the conclusion 

that an error has been made." Id. at 359-60, 392 S.E.2d at 506. 

 In this case, husband argues the discrepancy in the final 

decree was not an oversight on the part of either party or the 

court, but rather the final decree incorporated the parties' 

intent. We disagree with husband and conclude the trial court 

correctly applied the applicable law to the facts to reach its 

decision to correct the oversight. In correcting the oversight 

in the final decree, the trial court thoroughly explained its 

reasoning: 

 "In the absence of any reasonable explanation as 

to why the parties might have intentionally altered the 

language of the . . . stipulation, the trial court may 

presume that any inconsistencies are unintentional and 

are within its authority to amend." Artis, [10 Va. 

App. at 360, 392 S.E.2d at 506]. Counsel for [husband] 

offers in his brief the explanation that he purposely 

made the subject provision a part of the decree "in 

accordance with his (counsel's) interpretation of what 

the parties' agreement was . . . ." "We cannot, 

however, accept an explanation offered by the party to 

be benefitted without some corroborative evidence." 

[Id. at 360, 392 S.E.2d at 507]. [Husband's] proffered 

explanation is at odds with the record before the 

court. 

. . . Which provision the court should determine to be 

correct depends upon both the original intent of the 

parties upon entering the agreement and the intent of 

the court in entering its decree. Cass v. Lassiter, 2 

Va. App. 273, 278[, 343 S.E.2d 470, 473] (1986). Since 

the plain language used in the Stipulation Agreement is 

unambiguous and both parties testified at the 

commissioner's hearing that they wanted the terms of 

the Agreement to be made a part of any final decree, 

this court finds that it was the intent of the parties 

and the court to obligate [husband] to pay spousal 

support to [wife] for a period of three years from the 
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date of entry of the final decree. 

 Despite husband's assertions to the contrary, our review of 

the record reveals that the parties intended the final decree to 

conform to the terms of the agreement and that an error was made 

in not doing so. See Dorn v. Dorn, 222 Va. 288, 292, 279 S.E.2d 

393, 395 (1981)(stating courts have "authority to enter nunc pro 

tunc orders modifying support obligations in the rare situation 

where the evidence clearly supports the conclusion that an error 

covered by Code § 8.01-428(B) has been made"); see generally Code 

§ 20-109 (stating courts shall direct payment of spousal support 

in accordance with the divorcing parties' stipulation agreement). 

 Because the trial court did not err, we affirm its decision 

to amend the final decree pursuant to Code § 8.01-428(B). 

Affirmed.