Wendy Lee Taddonio v. Frank Thomas Taddonio ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
WENDY LEE TADDONIO
v. Record No. 2041-94-4 MEMORANDUM OPINION *
PER CURIAM
FRANK THOMAS TADDONIO JUNE 27, 1995
FROM THE CIRCUIT COURT OF
THE CITY OF ALEXANDRIA
Donald H. Kent, Judge
(Gwena Kay Tibbits, on briefs), for appellant.
(Dorothy M. Isaacs; Beverly L. Kiefer; Isaacs &
Rodriguez, on brief), for appellee.
Wendy Lee Taddonio (mother) appeals the ruling of the trial
judge that a child support order became final twenty-one days
after entry of the order and could not be reconsidered on her
motion. Mother raises two issues on appeal: (1) whether the
trial judge erred in refusing to consider as clerical error the
absence of language staying, suspending, or vacating the support
order; and (2) whether the trial judge erred in refusing to
exercise discretionary equitable powers to rehear the support
matter. 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.
By order of June 22, 1994, the trial judge granted the
father's petition to reduce his child support payments. The
trial judge granted the mother's motion to rehear the matter and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
set a hearing date. The order granting the motion did not stay,
suspend, or vacate the June 22 support order. More than twenty-
one days after the June 22 order, the father filed a motion to
vacate the rehearing order. Ruling that the trial court was
divested of jurisdiction because the June 22 support order was
not stayed, suspended, or vacated within twenty-one days of its
entry, the trial judge vacated its rehearing order. See Rule
1:1.
The operation of Rule 1:1 is mandatory.
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 21-day 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. For those reasons,
the pendency of the . . . motion for
reconsideration, and the subsequent
proceedings thereon, have no effect on the
outcome.
School Bd. v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379
S.E.2d 319, 323 (1989). Thus, the trial judge did not have
discretion to reconsider the final support order after the
expiration of twenty-one days from its entry.
The June 22, 1994 support order was never stayed, suspended,
or vacated. "[I]t is not sufficient for the trial judge merely
to express a desire to consider action or take the issue under
advisement." D'Alessandro v. Commonwealth, 15 Va. App. 163, 167,
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423 S.E.2d 199, 201 (1992). Therefore, the trial judge did not
err in ruling that the June 22, 1994 support order was final and
was not subject to being modified more than twenty-one days after
entry.
Code § 8.01-428(B) allows the correction of clerical errors
by an order nunc pro tunc. However, a judge's power to make a
correction is not unlimited.
An order entered nunc pro tunc cannot create
a fiction that an act not yet performed has
already occurred. Rather the power of the
trial court to amend by nunc pro tunc order
is restricted to 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). The trial judge could not "by a fiction . . .
antedate the . . . [stay of the support order,] an act which
never occurred." Council v. Commonwealth, 198 Va. 288, 293, 94
S.E.2d 245, 248 (1956).
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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