Virginia H. Sarver, f/k/a V.S.Sorum v Harvey Sorum

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia
VIRGINIA H. SARVER, F/K/A
VIRGINIA S. SORUM MEMORANDUM OPINION* BY
v. 	Record No. 1950-97-2 	JUDGE RUDOLPH BUMGARDNER, III
JUNE 16, 1998
HARVEY J. SORUM
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Jay T. Swett, Judge
Peter L. McCloud (Boyle, Bain & Downer, on
brief), for appellant.
Ralph E. Main, Jr., for appellee.
The parties were divorced by final decree entered August 1,
1996. 	Four months later Mr. Sorum moved to reopen the case and
to allocate $27,000 of debt incurred to educate their children.
He also asked the court to affirm the exact amount of his
obligation on a credit card debt. 	By order dated July 11, 1997,
the trial court affirmed the amount of the credit card debt at
$5,922 which was the amount set out in the decree of August 1,
1996. 	The court ordered the husband to pay that amount within
thirty days. 	The court also found that the failure to address
the education debt in the August 1996 decree was a mutual mistake
by the parties and decreed that each pay half.
The decree of August 1996 allocated the parties' MBNA credit
card debt to the husband and ordered that he pay it "holding [the
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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wife] harmless." 	When the court made its decree of July 1997, it
found that $5,922 was the precise amount owed when the 1996
divorce decree was entered and ordered the husband to pay that
amount only. 	The court did not make any provision for interest
or other charges that accrued on that account between the date of
the first decree and the subsequent one. 	We hold that when the
court did not make such provisions, the court failed to give
recognition to the hold harmless provision in its first decree.
The decision is reversed and remanded with the direction that the
decree be modified to order that the husband pay, in addition to
the principal amount, any sums that accrued because of his
failure to pay the debt as originally ordered to do.
The trial court had no authority to entertain the request to
allocate the education loans that had not been addressed in the
August 1996 decree. 	The trial court's inherent power to amend
the record should not be confused with the power to create. 	See
Davis v. Mullins, 251 Va. 141, 149, 466 S.E.2d 90, 94 (1996).
"'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.'" 	Id. (citation omitted). 	The trial court loses
jurisdiction twenty-one days after entering the final decree.
"All 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." 	Rule 1:1.

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If fraud has been practiced, the trial court can reopen a
case after twenty-one days has past. 	See Code § 8.01-428. 	The
initial motion filed by the husband to reopen the case pleaded
fraud as the reason the court had not dealt with the matter of
student loans. 	However, the trial court found that fraud was not
shown. 	No objection was taken to that finding. 	Because no fraud
was practiced on the court, the court had no authority to
adjudicate the issue twenty-one days after the final order.
Accordingly, the decision of the trial court to allocate this
debt is reversed.
Reversed and remanded.