Francis P. Keough v. Mary E. (Keough) Pelletieri ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
FRANCIS P. KEOUGH
v. Record No. 0914-95-4 MEMORANDUM OPINION *
PER CURIAM
MARY E. (KEOUGH) PELLETIERI OCTOBER 31, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
(Ann W. Mische; Byrd, Mische, Bevis, Bowen, Joseph &
O'Connor, on briefs), for appellant.
(Robert B. Machen, on brief), for appellee.
Francis P. Keough appeals the decision of the circuit court
denying his "Motion to Correct Order" pursuant to Code
§ 8.01-428(B). Keough argues that the trial court erred in
failing to conform the typewritten consent order to the terms of
the parties' handwritten agreement. Upon reviewing the record
and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of
the trial court. Rule 5A:27.
Code § 8.01-428(B) provides, in pertinent part, 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."
"This language 'clearly is broad enough to cover more than
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
errors committed by the clerk or one of the clerk's employees.'"
Artis v. Artis, 10 Va. App. 356, 359, 392 S.E.2d 504, 506 (1990)
(citation omitted). However, "[t]o invoke such authority the
evidence must clearly support the conclusion that an error has
been made." Id. at 359-60, 392 S.E.2d at 506. "We cannot . . .
accept an explanation offered by the party to be benefitted
without some corroborative evidence." Id. at 360, 392 S.E.2d at
507.
Following an earlier appeal to and remand from this Court,
Keough and Mary E. Pelletieri, with their respective counsel,
settled the remaining issues between them. The terms of their
settlement were set out in a handwritten agreement signed by the
parties and counsel. The handwritten agreement, which included
abbreviations and interlineations, contained the following
provision: "[Pelletieri's] portion of the milit. pension will
incr. in acc'd with increases in the total pension beg'g
effective w. [Keough's] retir't in the same percentage as the
incre's in the to. retirement." The agreement was subsequently
prepared as a typed consent decree. The first typed version of
the consent decree was provided by Pelletieri to Keough, through
counsel, for review and endorsement. Allowing for abbreviations
and identification of the parties, the language of the consent
order incorporated the language of the handwritten agreement with
one exception: "The Defendant's [Pelletieri's] portion of the
military pension shall increase in accordance with increases in
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the total pension beginning effective in the Complainant's
[Keough's] retirement in the same percentage as the increases in
the total retirement." (Emphasis added to note exception.)
Keough's counsel reviewed the typed consent order, and made
the following comment: "In paragraph 2, the last sentence, the
phrase 'in accordance with increases in the total pension
beginning effective in' does not make any sense. I believe the
entire phrase could be eliminated and the remaining sentence
would make sense." After suggesting additional revisions,
Keough's counsel concluded the letter by stating: "Please revise
the order and send me the original. I will be happy to endorse
it and return it to you." Pelletieri's counsel made the
requested revisions, and returned the revised consent decree to
Keough's counsel with a request that counsel "[c]all me right
away if there are any matters of language to be resolved" and
with thanks to Keough's counsel "for working so hard to reach
this settlement and to make sure that it was written up
accurately." The revised decree was endorsed by counsel and
entered by the court.
At the hearing below, the trial court found that the
handwritten agreement was revised by the parties prior to the
entry of the consent decree. The court found that the evidence
indicated Keough's counsel made a unilateral mistake by deleting
the language, which changed the substance of the agreement to
Keough's disadvantage. Nevertheless, the modified language in
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the revised consent decree was accepted by Pelletieri's counsel,
endorsed by both counsel, and entered as amended by the trial
court.
When reviewing the terms of the consent decree, we are "not
bound by the trial court's conclusions as to the construction of
the disputed provisions." Smith v. Smith, 3 Va. App. 510, 513,
351 S.E.2d 593, 595 (1986). "[O]n appeal if all the evidence
which is necessary to construe a contract was presented to the
trial court and is before the reviewing court, the meaning and
effect of the contract is a question of law which can readily be
ascertained by this court." Fry v. Schwarting, 4 Va. App. 173,
180, 355 S.E.2d 342, 346 (1987).
We note that this is not an instance in which the parties'
settlement agreement exists as a separate document which the
decree ratifies and incorporates. The consent decree was
intended by the parties to set forth, in its express language,
the terms of their settlement agreement. Both parties reviewed
the decree. Counsel suggested modifications, which were
accepted, and the decree was entered.
While there may have been mistakes made by Keough's counsel
in suggesting a modification which worked to Keough's
disadvantage, we cannot say that that is the kind of clerical
mistake which may be corrected under Code § 8.01-428(B). This
was not a scrivener's error, or an error which is demonstrably
contradicted by all other written documents. In fact, the
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evidence demonstrates that the modification to the consent decree
was not an act of oversight or inadvertent omission as required
under Code § 8.01-428(B), but was instead a deliberate revision.
As we find this error was not an oversight or inadvertent
omission, we do not address Keough's question whether an error
under Code § 8.01-428(B) must be mutual.
Therefore, the trial court did not err in denying Keough's
Motion to Correct Order. Accordingly, the decision of the
circuit court is summarily affirmed.
Affirmed.
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