Daniel J. Potas v. Marcia M. Potas
1242171
| Va. Ct. App. | Dec 27, 2017Background
- Parties entered a stipulation and marital agreement on September 24, 2015; final decree of divorce (nunc pro tunc to that date) incorporated the agreement and set father to pay $1,200/month in child support (a downward deviation from guidelines).
- After post-divorce custody/visitation proceedings, mother filed a motion to modify child support; after a September 26, 2016 hearing the trial court found a material change in circumstances and ordered father to pay $1,969/month effective October 1, 2016.
- The trial court characterized its support ruling as final and entered the child support order on November 9, 2016; father did not appeal that order within the Rule 1:1 21-day period.
- On July 11, 2017, mother filed an amended child support order to correct a typographical error in the November 9 order regarding which parent carries the children on health insurance; the court entered the amended order July 12, 2017.
- Father timely appealed the July 12, 2017 amended order, but conceded the November 9 order contained the clerical mistake corrected by the July 12 order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court violated father's due process/property/contract rights by increasing support above the PSA amount | Father: trial court deprived him of property and violated contract by ordering $769/month more than PSA | Mother: court properly found material change and set support per guidelines; amended order only fixed a clerical error | Court: Father waived these challenges by not appealing the November 9, 2016 final order within Rule 1:1 period |
| Whether the trial court erred by hearing the motion to amend/support because father was not served | Father: he was not served with the motion to amend/support | Mother: amended order corrected clerical mistake; father agreed the November 9 order contained the error | Court: The July 12, 2017 order merely corrected a clerical mistake under Code § 8.01-428(B); the support matter was not reopened and father's service-based challenge is waived as untimely for the November 9 order |
| Whether the trial court misapplied Va. Code § 20-108.1 or failed to consider evidence | Father: court misapplied statute and ignored evidence | Mother: court applied guidelines after finding material change | Court: These arguments attack the November 9 final order and were waived by father's failure to appeal that order |
Key Cases Cited
- Tidwell v. Late, 799 S.E.2d 696 (Va. Ct. App. 2017) (appellate review view of evidence in favor of prevailing party)
- Prizzia v. Prizzia, 610 S.E.2d 326 (Va. Ct. App. 2005) (definition of a final order)
- James v. James, 562 S.E.2d 133 (Va. 2002) (final order standard and effect)
- O'Loughlin v. O'Loughlin, 479 S.E.2d 98 (Va. Ct. App. 1996) (attorney's fees on appeal in family law matters)