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Deane v. Deane

Court of Appeals of Virginia

July 20, 1999

RODNEY EMIL DEANE
v.
REGENIA LYNN DEANE

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY. Paul M. Peatross, Jr., Judge.

William C. Scott IV (Ronald R. Tweel; Michie, Hamlett, Lowry, Rasmussen & Tweel, on briefs), for appellant.

John K. Taggart, III (Patricia D. McGraw; Tremblay & Smith, LLP, on brief), for appellee.

Present: Judges Coleman, Elder and Bumgardner.

MEMORANDUM OPINION [1]

SAM W. COLEMAN III, JUDGE.

Following the entry of a final divorce decree on May 19, 1997, Rodney Emil Deane (husband) and Regenia Lynn Deane (wife), filed numerous post-decree motions requesting that the trial court correct errors on the face of the record, clarify its rulings, and modify child and spousal support. As a result, the trial court entered a decree on September 16, 1998, modifying child and spousal support nunc pro tunc . The modification created instant support arrearages. That decree also found that no agreement existed between the parties to divide certain marital assets and further found that it no longer had jurisdiction to equitably divide those assets since the divorce decree had became final for more than twenty-one days.

Husband appeals the September 16, 1998 decree contending that the trial court lacked jurisdiction to modify support and, alternatively, that it erred in calculating the appropriate modification and resulting arrearages. Wife, who also appeals, contends that the trial court erred by finding that the parties had not agreed on an equitable division of certain marital assets. Alternatively, she asserts that the trial court ordered that all marital assets be equally divided and that ruling controls the assets in question.

We find that the trial court did not err in holding that the final divorce decree did not equitably divide certain marital assets and that the parties did not enter into an enforceable equitable distribution agreement. As to the child and spousal support issues, we find that the trial court had jurisdiction to modify support prospectively from the date the motion to modify was filed, but did not have authority to modify support retroactively. Finally, we find that the trial court erroneously calculated the adjustment to the spousal support award. Accordingly, we affirm the trial court's rulings in part, but reverse the spousal support ruling and remand the case for the trial court to correct the modification of the spousal support award.

BACKGROUND

Wife filed a bill of complaint for divorce. Following ore tenus hearings, the trial court entered a final divorce decree on May 19, 1997, which neither party appealed. The final decree awarded wife $ 698.28 per month for child support and $ 924.06 per month for spousal support. Also, the decree, which equitably distributed some of the parties' marital property and debt, did not reserve the right to distribute the remaining marital property as authorized by Code § 20-107.3(A). See Christensen v. Christensen, 26 Va.App. 651, 654-55, 496 S.E.2d 132, 133 (1998).

On September 24, 1997, wife filed a " Motion to Correct Errors" apparent on the face of the record. The motion asserted that the final decree had failed to include a provision setting forth the trial court's spousal support award and that the trial court failed to include a provision dividing certain marital property, namely Mercury Services, Express Car Wash Company, and Express Charlottesville (hereinafter, the " undivided assets").

After hearing evidence on wife's " Motion to Correct Errors, " the trial court ruled that the final decree contained a ministerial error in that it omitted the court's prior ruling awarding spousal support. Additionally, after reviewing the transcripts, the court ruled that the parties had reached no agreement regarding the undivided marital assets, and therefore, the court had not erred in the final decree by omitting a provision enforcing the purported agreement or by refusing to divide those assets. Thus, the trial court entered a decree on October 24, 1997, incorporating these rulings. Neither party appealed that decree.

On December 2, 1997, wife filed a " Motion for Clarification" in which she alleged that in the October 24, 1997 decree the trial court failed to address the issue of whether the respondent continues to be obligated under the May 19, 1997, order to divide income with the Complainant as provided therein [2] and if the court so finds, whether he is in contempt of court for failure to either pay her any funds from these assets for the last year or to provide her any accounting of the same.

Wife asserted in her motion to clarify " that in computing child and spousal support, the Court added $ 3, 658.00 of unearned income to Complainant's salary from those [undivided] assets, however, Complainant has never received any income" from those assets after entry of the final decree. In other words, the court had based its support award upon the fact that at the time of the award wife was receiving one-half of the income from the undivided marital assets, which husband stopped paying her after entry of the final divorce decree. Wife requested that the trial court either order husband to pay one-half the ...


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