                   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

                                 - 2 -
           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)


                               - 3 -
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

                                 - 4 -
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).

                                 - 5 -
     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.

                               - 6 -
        "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.



                                 - 7 -
