                      COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia


DEBRA PATTERSON
                                          MEMORANDUM OPINION * BY
v.   Record No. 1232-00-4              JUDGE JEAN HARRISON CLEMENTS
                                               MARCH 20, 2001
FAUQUIER COUNTY DEPARTMENT OF
 SOCIAL SERVICES


            FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                 William Shore Robertson, Judge

          Robin C. Gulick (Robin C. Gulick, P.C., on
          brief), for appellant.

          Julia S. Savage (Walker, Jones, Lawrence,
          Duggan & Savage, on brief), for appellee.


     Debra Patterson appealed the termination of her residual

parental rights to her son by the juvenile and domestic relations

district court.   Prior to a trial de novo, the circuit court

entered a final order dismissing the appeal and remanding the case

to the juvenile and domestic relations district court.   More than

twenty-one days after entry of that order, the circuit court

entered an order denying Patterson's motion to enter a nunc pro

tunc order and to reinstate the case to the court's active docket,

ruling that, absent a showing of fraud, it no longer had

jurisdiction over the case.   This appeal followed.   Patterson


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
contends the trial court erred (1) in ruling that, without a

showing of fraud, it was without jurisdiction to enter a nunc pro

tunc order more than twenty-one days after a final order and (2)

in failing to correct an obvious clerical error pursuant to Code

§ 8.01-428(B).   We agree and reverse and remand for the reasons

that follow.

     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 necessary to a

disposition of this appeal.   "[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).

     Patterson asserts that entry of an order nunc pro tunc

denying the Department's motion to dismiss the appeal more than

twenty-one days after the final order was entered was permissible

under Code § 8.01-428(B) or pursuant to the court's inherent power

to amend clerical errors to correct the obvious clerical error in

this case.   The Department of Social Services argues that, because

the trial court lost jurisdiction of the case under Rule 1:1 once

twenty-one days had passed after entry of the final order, the

court was without jurisdiction to enter an order nunc pro tunc or

otherwise reinstate the case on the court's docket.   Moreover, the

Department continues, Code § 8.01-428(B) and the court's inherent

power to amend clerical errors do not apply here because no

clerical error was committed in this case.

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     Rule 1:1 provides, in pertinent part, that "[a]ll final

judgments, orders, and decrees, irrespective of terms of court,

shall remain under the control of the trial court and subject to

be modified, vacated, or suspended for twenty-one days after the

date of entry, and no longer."

     Here, the order entered August 6, 1999, correctly recited the

trial court's rulings from the May 18, 1999 hearing.    It dismissed

the appeal of the decision of the juvenile and domestic relations

court and remanded the case back to that court.    By its terms the

order was a final order.    It was not modified, vacated, or

suspended by the trial court within twenty-one days after its

entry.

                  "Neither the filing of post-trial or
             post-judgment motions, nor the court's taking
             such motions under consideration, nor the
             pendency of such motions on the twenty-first
             day after final judgment is sufficient to
             toll or extend the running of the period
             prescribed by Rule 1:1 . . . . The running
             of time under [Rule 1:1] may be interrupted
             only by the entry, within the 21-day period
             after final judgment, of an order suspending
             or vacating the final order."

Davis v. Mullins, 251 Va. 141, 148-49, 466 S.E.2d 90, 94 (1996)

(omission and alteration in original) (quoting School Bd. of

Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379

S.E.2d 319, 323 (1989) (citations omitted)).

     Accordingly, the order became final on August 27, 1999.

Under Rule 1:1, the trial court was divested of jurisdiction after

that date.    Thereafter, no action could be taken by the court to

                                 - 3 -
alter or vacate that order "unless one of the limited exceptions

to the preclusive effect of Rule 1:1 applies."    Id. at 149, 466

S.E.2d at 94.

     "One such exception is provided by Code § 8.01-428(B) which

permits the trial court to correct at any time '[c]lerical

mistakes in all judgments or other parts of the record and errors

therein arising from oversight or from an inadvertent omission.'"

Id. (alteration in original) (quoting Code § 8.01-428(B)).

Furthermore, "[a]lthough divested of jurisdiction, a 'trial court

has the inherent power, independent of statutory authority, to

correct errors in the record so as to cause its acts and

proceedings to be set forth correctly.'"    Myers v. Commonwealth,

26 Va. App. 544, 547, 496 S.E.2d 80, 82 (1998) (quoting Davis, 251

Va. at 149, 466 S.E.2d at 94).    This power may be exercised at any

time to amend the record, based on any competent evidence, "'when

the justice and truth of the case require it.'"    Netzer v.

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

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

(1956)).

     However, as the Supreme Court noted in Council, "the power to

amend should not be confounded with the power to create.   While

the power is inherent in the court, it is restricted to placing

upon the record evidence of judicial action which has actually

been taken, and presupposes action taken at the proper time."    198

Va. at 292, 94 S.E.2d at 248 (citation omitted).    Similarly, the

                                 - 4 -
statutory power granted by Code § 8.01-428 is to be narrowly

construed and applied.   McEwen Lumber Co. v. Lipscomb Bros. Lumber

Co., 234 Va. 243, 247, 360 S.E.2d 845, 848 (1987).

            To permit a trial court, either under the
            statute or by its inherent power, to consider
            at any time what judgment it might have
            rendered while it still retained jurisdiction
            over a case and then to enter that judgment
            nunc pro tunc would render meaningless the
            mandate of Rule 1:1 and would do great harm
            to the certainty and stability that the
            finality of judgments brings.

Davis, 251 Va. at 150, 466 S.E.2d at 94.

       Thus, an order entered nunc pro tunc cannot create a fiction

to antedate the actual occurrence of an act or event or to

represent in the record an event or action that never occurred or

existed.   Council, 198 Va. at 293, 94 S.E.2d at 248.   Rather, the

power of the trial court to amend by nunc pro tunc order is

restricted to correcting mistakes of the clerk or other court

officials, see id., and "placing upon the record evidence of

judicial action which has already been taken, but was earlier

omitted or misstated in the record," Holley v. City of Newport

News, 6 Va. App. 567, 568, 370 S.E.2d 320, 321 (1988).

       We held, for example, in Decker v. Decker, 22 Va. App. 486,

471 S.E.2d 775 (1996), that a correction may not be used after an

order has become final to reflect a ruling that was not made

before the final order was entered.     Id. at 494-95, 471 S.E.2d at

779.   We also noted in Decker that Code § 8.01-428(B) "'has no

application to errors in the reasoning and conclusions of the

                                - 5 -
court about contested matters.'"    Id. at 495, 471 S.E.2d at 779

(quoting Safety Motor Transit Corp. v. Cunningham, 161 Va. 356,

364, 171 S.E. 432, 435 (1933)).    Similarly, a correction that

would require reacquisition by the trial court of jurisdiction

over the underlying subject matter is barred by Rule 1:1.   Myers,

26 Va. App. at 548, 496 S.E.2d at 82.    "The trial judge may modify

its orders only 'in the rare situation where the evidence clearly

supports the conclusion that an error covered by Code

§ 8.01-428(B) has been made.'"    Decker, 22 Va. App. at 495, 471

S.E.2d at 779 (quoting Dorn v. Dorn, 222 Va. 288, 292, 279 S.E.2d

393, 395 (1981)).

     It is clear from the uncontroverted record before us that the

omitted judicial action that Patterson sought to have placed on

the record nunc pro tunc occurred before the final order was

entered.   The trial court ruled on July 20, 1999, at the rehearing

on the Department's motion to dismiss the appeal, that the motion

to dismiss was denied and that the case was continued on the

court's docket to its originally set date of October 29, 1999, for

a trial de novo on the merits.    However, those rulings were

inadvertently omitted from the record when, despite the court's

instruction to do so, Patterson's counsel failed to prepare and

submit for entry an order reflecting those rulings.   Ironically,

though, shortly after the July 20, 1999 rehearing, an endorsed

order reflecting the court's rulings from the first hearing on the

motion to dismiss was submitted by counsel for the stated purpose

                                 - 6 -
of completing the file.   The trial judge, noting it was fully

endorsed, entered that order pro forma on August 6, 1999.

Twenty-one days later, the order was final.

     Unaware that the appeal had been dismissed and the case

remanded to the lower court by a final order, Patterson and the

Department continued their trial preparations.   On October 7,

1999, Patterson learned from the Department that the appeal had

been dismissed and subsequently filed her motion for entry of an

order nunc pro tunc.

     Plainly, the court's rulings on July 20, 1999 constituted

appropriate judicial action taken at the proper time, while the

trial court had jurisdiction.   There being satisfactory evidence

of the actual and timely action by the trial court and of that

action's inadvertent omission from the record because no order

reflecting that action was entered, the question then becomes

whether the failure to enter a timely order because counsel failed

to prepare and submit the order is a "clerical error" within the

meaning of the rule allowing a nunc pro tunc entry.   The

resolution of this question is controlled, we believe, by Harris

v. Commonwealth, 222 Va. 205, 279 S.E.2d 395 (1981), the facts of

which are analogous to this case.

     In Harris, the juvenile defendant was charged with rape and

abduction.   Following the juvenile and domestic relations district

court's denial of the Commonwealth's motion to transfer

jurisdiction to the circuit court, the Commonwealth sought removal

                                - 7 -
of the case to the circuit court under Code § 16.1-269(E).

Pursuant to that statute, the papers in the case were forwarded to

the circuit court for a decision regarding the certification of

the juvenile.   The trial judge rendered a decision by letter

thirteen days thereafter, on September 18, 1979, ruling that the

defendant should be certified.    He instructed the Commonwealth's

attorney to prepare an order.    No order was presented or entered

within twenty-one days after receipt of the case in the trial

court as required by Code § 16.1-269(E).

     At trial, on March 5, 1980, another trial judge discovered

that no order certifying the juvenile defendant had been entered.

The judge declared a mistrial and remanded the case to the

juvenile and domestic relations district court.   Two days later

the Commonwealth filed a motion for an order nunc pro tunc to

memorialize the first trial judge's ruling granting a transfer of

the case to the circuit court.    On March 13, 1980, the trial court

entered two orders, one, entered nunc pro tunc to September 18,

1979, certifying the defendant for trial as an adult and the other

setting aside the order of remand.

     Harris argued on appeal that the trial court never acquired

jurisdiction because the order authorizing certification was not

entered within the mandatory twenty-one-day period.   He contended

that a nunc pro tunc order was being used to show what the court

should have done, rather than what was actually done.



                                 - 8 -
     The Supreme Court disagreed.     It found that "appropriate

judicial action was actually taken at the proper time" and held

that the failure to enter a timely order was clerical error.       Id.

at 210, 279 S.E.2d at 398.   As the Court noted:

          The clerical mistakes which may be corrected
          under the court's inherent power encompass
          errors made by other officers of the court
          including attorneys. Here, the failure to
          enter a timely order was due to attorney
          error. . . . Manifestly, the nonentry of a
          timely order was caused by the prosecutor's
          failure to follow directions.

Id. at 210, 279 S.E.2d at 398-99 (citation omitted).

     Likewise, the failure to enter a timely order was due to

attorney error in the present case.    We find, therefore, that the

failure to enter a timely order in this case was clerical error.

As a result of that clerical error, the record does not fully or

accurately set forth the appropriate rulings of the trial court,

as the justice and truth of the case require.    The evidence

clearly supports the conclusion that the clerical error may and

should be corrected so as to cause the trial court's rulings to be

set forth correctly in the record.

     Accordingly, we hold that the trial court erred in failing to

enter an order nunc pro tunc denying the Department's motion to

dismiss the appeal and vacating the order of remand.    The order

appealed from is reversed, and the case is remanded for entry of




                               - 9 -
the appropriate nunc pro tunc order and for further proceedings

consistent with this opinion.

                                     Reversed and remanded.




                                - 10 -
