                    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).




                                - 5 -
                                  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

                                 - 6 -
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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