David Coleman v CW, DSS, DCSE ex rel. B.Hutcherson

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia
DAVID COLEMAN
MEMORANDUM OPINION* BY
v. 	Record No. 1441-99-3 	JUDGE SAM W. COLEMAN III
APRIL 25, 2000
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. BRENDA HUTCHERSON
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
William N. Alexander, Judge
David Coleman, pro se.
Ellen L. Reynolds, Special Counsel (Alice G.
Burlinson, Regional Special Counsel; Mark L.
Earley, Attorney General; Ashley L. Taylor,
Jr., Deputy Attorney General; Robert B.
Cousins, Jr., Senior Assistant Attorney
General; Craig M. Burshem, Regional Special
Counsel, on brief), for appellee.
David Coleman appeals the circuit court order modifying his
child support obligation and ordering him to pay an arrearage of
$1,094.70 and interest as of April 30, 1999. 	On appeal, Coleman
argues that the trial court erred in ordering that he pay the
arrearage because the record does not contain any evidence to
support a finding that such an arrearage was owed. 	At oral
argument, counsel for the Department of Social Services (DSS)
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

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conceded that the record contains no pleadings or evidence to
support the provision in the trial court's order of May 24, 1999,
or the nunc pro tunc order of August 10, 1999,1 setting a child
support arrearage of $1,094.70. 	Accordingly, we reverse the trial
court as to the award of arrearage and remand the matter to the
trial court with directions to vacate that provision of the
court's prior orders without prejudice to Brenda Hutcherson or DSS
as to any claims of arrearage.
Coleman further argued that the trial court erred by vacating
the May 24, 1999 order and entering an order nunc pro tunc after
twenty-one days. 	Coleman argued that, because the court could not
enter an order after twenty-one days, the juvenile and domestic
relations district court order setting child support at $298.58
per month would be the final controlling support order. 	However,
because that order was appealed to the circuit court and was a
nullity, the last effective order, if Coleman's argument had
merit, would have been the prior child support order of $355 per
month. 	In addition, a nunc pro tunc order correcting a clerical
error can be entered after twenty-one days from entry of the final
order without violating Rule 1:1. 	A trial court may enter an
order nunc pro tunc to reflect judicial action that was, in
1 The nunc pro tunc order is part of the appendix and was
referenced in the briefs and at oral argument by both parties
but was not sent to this Court as a part of the trial court
record.

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fact, taken or to correct defects or omissions in the record so
as to make the record conform to actual prior events. 	See Code
§ 8.01-428(B). 	Code § 8.01-428(B) authorizes a trial judge to
correct the judge's own errors and omissions. 	See Nelson v.
Commonwealth, 12 Va. App. 835, 837-38, 407 S.E.2d 326, 327-28
(1991); see also Dorn v. Dorn, 222 Va. 288, 291, 279 S.E.2d 393,
394-95 (1981).
The trial court did not err in entering the order nunc pro
tunc to correct the clerical error reflected in the amount of
the support obligation. 	At oral argument, appellant requested
and acquiesced in the trial court's determination of child
support in the amount of $337.05 effective August 18, 1998.
Accordingly, we reverse the trial court's award of child
support arrearage and remand with directions to the trial court
to vacate that award, without prejudice, and we affirm the trial
court's child support modification.
Reversed and remanded, in
part, and affirmed, in part.