COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Clements 

Argued at Richmond, Virginia 

TERI C. JERNIGAN 

 MEMORANDUM OPINION* BY 

v. Record No. 3002-00-2 JUDGE JEAN HARRISON CLEMENTS 

 NOVEMBER 27, 2001 

DARYL W. CLAYTON 

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL 

James A. Luke, Judge 

 Neil Kuchinsky (Kuchinsky & Associates, P.C., 

on brief), for appellant. 

 Stefan M. Calos for appellee. 

 Teri C. Jernigan (wife) appeals from the trial court's order 

amending, upon the motion of Daryl W. Clayton (husband), a prior 

order of the trial court with respect to the amount of the child 

support arrearage owed by husband. On appeal, wife contends the 

trial court erred in amending the prior order because the alleged 

error was not correctable under Code § 8.01-428(B) and in 

conditioning the full lump-sum payment of the child support 

arrearage upon neither party appealing the court's order. For the 

reasons that follow, we affirm the decision of the trial court and 

remand this case for implementation of the trial court's order 

that husband make full lump-sum payment of the arrearage. 

 

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

designated for publication.
 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

value, this opinion recites only those facts and incidents of the 

proceedings as necessary to the parties' understanding of the 

disposition of this appeal. 

I. BACKGROUND 

 On February 28, 1995, the juvenile and domestic relations 

district court entered an order stating, in relevant part, that 

"[t]he amount of arrears is established as $21,989.33, upon which 

amount the Court enters judgment plus interest from September 22, 

1989 at the rate of nine percent." That order was appealed to the 

circuit court, which entered an order on October 12, 1995, 

stating, in relevant part, that "[t]he amount of arrears was 

established previously by the Juvenile & Domestic Relations 

District Court at $21,989.33, upon which amount this Court enters 

judgment plus interest from September 22, 1989 at the rate of nine 

percent." 

 On December 12, 1997, the circuit court entered two orders 

that each addressed the child support arrearage. The two orders, 

however, were inconsistent. One of the orders, entitled "Order 

for Child Support Arrearage" stated, in relevant part, as follows: 

 A question arose as to the interest rate 

on the arrearage owed by [husband] to [wife] 

for child support. IT IS ORDERED that the 

Order of this Court entered on October 2 

[sic], 1995, is amended to establish the 

arrearage for child support at $21,989.33. 

That amount of arrearage varied, starting on 

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September 22, 1989, but gradually increased 

to the amount indicated, and that the amount 

of arrearage plus interest from September 22, 

1989 to June 30, 1991 was at the rate of 

eight percent (8%), and from July 1, 1991 is 

at the rate of nine percent (9%) per year. 

(Emphasis added.) As originally drafted, the order contained the 

language "as of June 23, 1995" following the phrase "the arrearage 

for child support," but counsel for the parties struck through the 

language and initialed the change. The order was endorsed by 

counsel for both parties. 

 The other order, entitled "Order for Change in Child 

Support," provided in a statement compliant with Code § 20-60.3 

that "[a] support arrearage exist [sic] as of Sept. 22, 1989 in 

the amount of $21,989.33." As originally drafted, the date 

referenced was "June 23, 1995," but counsel for the parties struck 

through it, inserted "Sept. 22, 1989" in its place, and initialed 

the change. This order was also endorsed by counsel for both 

parties. 

 On August 31, 2000, the Virginia Department of Social 

Services, Division of Child Support Enforcement (DCSE), noting 

that it had to "interpret orders literally" and that its 

calculation was "based on a plain meaning reading" of the orders 

entered December 12, 1997, notified husband that it was 

"carrying an arrears balance totaling $71,686.16." DCSE 

indicated that it would not oppose husband's motion to correct 

the Order for Change in Child Support under Code § 8.01-428(B) 

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and that husband's calculation of the arrearage as of July 7, 

2000 —- $18,924.17 —- was "probably correct." 

 Husband filed a motion to correct the alleged error in the 

Order for Change in Child Support under Code § 8.01-428(B), and 

the trial court held a hearing on the motion on September 18, 

2000. No evidence was presented at the hearing as to why counsel 

for the parties changed the dates in the two orders entered on 

December 12, 1997. Wife did not argue that an arrearage of 

$21,989.33 actually existed as of September 22, 1989, as recited 

in the Order for Change in Child Support. Instead, she argued the 

order was not amendable under Code § 8.01-421. 

 After hearing evidence on the motion, the trial court 

stated it was conceded that, in changing the date in the Order 

for Change in Child Support from June 23, 1995, to September 22, 

1989, "an error . . . was made by the lawyers for each side." 

The court concluded that the Order for Change in Child Support 

was incorrect as to the amount of the child support arrearage. 

"[T]o not correct this," the court said, "is to really give a 

windfall to [wife]." The trial court also concluded that the 

Order for Child Support Arrearage, which indicated that the 

arrearage merely began to accrue on September 22, 1985, and only 

"gradually increased" to $21,989.33, correctly stated the 

arrearage "situation." 

 On November 15, 2000, the trial court entered an order 

striking the statement regarding the arrearage from the Order for 

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Change in Child Support, affirming the arrearage amount recited 

in the Order for Child Support Arrearage, and finding that the 

child support arrearage as of September 18, 2000 was $17,991.56. 

The final paragraph of the trial court's order provided, in 

pertinent part, as follows: 

Should neither party file a notice of 

appeal in this case, upon expiration of the 

time for filing an appeal [husband] shall 

pay forthwith to DCSE the sum of $17,991.56. 

Such payment shall be in full satisfaction 

of [husband's] child support obligations to 

[wife]. 

(Emphasis added.) It is from this order that wife now appeals. 

II. ANALYSIS 

 "[W]e review the trial court's statutory interpretations and 

legal conclusions de novo." Timbers v. Commonwealth, 28 Va. App. 

187, 193, 503 S.E.2d 233, 236 (1998). 

 Wife admits on appeal that, as of September 18, 2000, 

$17,991.56 was the actual amount of the child support arrearage. 

She contends, however, that the trial court erred in finding 

that the alleged error in the Order for Change in Child Support 

was subject to revision under Code § 8.01-428(B).1 We disagree. 

 1

 Wife also argues on appeal that the trial court erred in 

entering the order of November 15, 2000 because it "contains no 

nunc pro tunc entry." We will not consider this argument, 

however, as it was never raised before the trial court. See

Rule 5A:18; Buck v. Commonwealth, 247 Va. 449, 452-53, 443 

S.E.2d 414, 416 (1994); Ohree v. Commonwealth, 26 Va. App. 299, 

308, 494 S.E.2d 484, 488 (1998). 

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 Code § 8.01-428(B) provides: 

 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 an order at any time to 

correct an error arising from oversight. "[T]he language of the 

statute clearly is broad enough to cover more than errors 

committed by the clerk or one of the clerk's employees." Lamb 

v. Commonwealth, 222 Va. 161, 165, 279 S.E.2d 389, 392 (1981). 

However, "[t]o invoke such authority the evidence must clearly 

support the conclusion that an error has been made." Artis v. 

Artis, 10 Va. App. 356, 359-60, 392 S.E.2d 504, 506 (1990). 

 Here, the interlineated change of the date in the Order for 

Change in Child Support rendered that order inconsistent with 

the Order for Child Support Arrearage, entered the same day, and 

with the previous orders entered in the case that addressed the 

child support arrearage. As DCSE and the trial court noted, and 

as wife effectively conceded, it conferred upon wife a 

substantial windfall to which she was not reasonably entitled. 

 Notwithstanding her concession, wife argues that the 

discrepancy in the Order for Change in Child Support did not 

arise from oversight because the interlineation in that order 

was initialed by the attorneys for both parties. However, she 

offered no explanation as to why the change was made. 

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 "In the absence of any explanation as to why the parties 

and court might have intended to include inconsistent provisions 

or how both could be enforceable, the trial court had clear and 

convincing evidence to support its finding of a clerical error 

justifying correction." Cass v. Lassiter, 2 Va. App. 273, 278, 

343 S.E.2d 470, 473 (1986); see also Artis, 10 Va. App. at 360, 

392 S.E.2d at 506 (noting that, when no explanation is offered 

as to why parties made changes in language in in-court 

stipulation, court may presume that inconsistencies therein were 

unintended and are correctable). Accordingly, we hold that the 

trial court did not err in amending the Order for Change in 

Child Support to correct the error therein. 

 Wife also argues that the final paragraph of the order 

entered by the trial court on November 15, 2000 penalized her 

for appealing the order by relieving husband of having to make a 

lump-sum payment of the arrearage owed. We disagree. As 

husband acknowledges in his brief on appeal, the final paragraph 

of the order merely stays the execution of the lump-sum payment 

temporarily in the event the order is appealed. 

 For the foregoing reasons, we affirm the decision of the 

trial court and remand for implementation of the trial court's 

order that husband make full lump-sum payment of the arrearage 

owed. 

 Affirmed and remanded.

 

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