COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
KATHRYN D. VENIE MEMORANDUM OPINION * v. Record No. 0342-98-4 PER CURIAM SEPTEMBER 1, 1998 DAVID A. VENIE
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Richard B. Potter, Judge
(Robert B. Machen, on briefs), for appellant. (Raymond J. Morley; Pfitzner & Morley, on brief), for appellee.
Kathryn D. Venie (wife) appeals the decision of the circuit
court finding her in contempt, incorporating an agreement signed
by wife and David A. Venie (husband), and deciding other issues.
Wife contends that the trial court (1) erred when it entered the
final decree in violation of Rule 1:13; (2) erred when it entered
orders modifying the final decree more than twenty-one days after
its entry; (3) erred when it refused to permit wife's new counsel
to depose husband's counsel; (4) erred when it ordered husband to
sell the marital home and found wife in contempt for failing to
cooperate; (5) abused its discretion when it held wife in
contempt for nonpayment of one-half of the mortgage; (6) abused
its discretion by incorporating the property settlement
agreement; (7) abused its discretion by refusing to award wife
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. spousal support; and (8) erred by prohibiting wife from
petitioning the Defense Finance and Accounting Service (DFAS) for
her share of the military retired pay. 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. See Rule 5A:27.
The record consists of the court's file, including the
written statement of facts signed by the trial judge, and several
transcripts and exhibits. No transcripts were filed for the
hearings held on December 30, 1996, December 16, 1997, or January
9, 1998. We do not consider as part of the record on appeal the
parties' summaries of hearing testimony not preserved in any form
for review. See Rules 5A:7 and 5A:8.
Settlement Agreement
Because it is a pivotal issue in wife's appeal, we address
first her contention that the trial court erred by incorporating
into the final decree a property settlement agreement dated March
27, 1996, and signed by the parties. Wife contended that
husband's counsel fraudulently substituted twenty-one different
provisions after the parties reached agreement but before the
written agreement was initialed, signed, and presented to the
trial court. Wife raised this allegation more than six months
after the agreement was signed.
On appeal, we view the evidence and reasonable inferences in
the light most favorable to husband as the party prevailing
- 2 - below. See Martin v. Pittsylvania County Dep't of Social Servs.,
3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). "Where, as here,
the court hears the evidence ore tenus, its finding is entitled
to great weight and will not be disturbed on appeal unless
plainly wrong or without evidence to support it." Id. "The one
contesting the contract must prove the allegations by clear and
convincing evidence." Derby v. Derby, 8 Va. App. 19, 26, 378
S.E.2d 74, 77 (1989). As set out in its pendente lite decree entered January 13,
1997, as well as in the written statement of facts, the trial
court found that wife failed to prove her allegations of fraud in
connection with the signing of the settlement agreement. No
transcript of the December 30, 1996 hearing on this issue appears
in the record. However, in the January 13, 1997 pendente lite
decree, the trial court rejected wife's allegations of fraud,
found that "[t]here is no evidence of any fraud in the
procurement and/or inducement" of the agreement, and found the
signed agreement to be valid. The trial court ordered the
parties to comply with its terms. The record contains the
transcript of a January 31, 1997 hearing on wife's various
motions for reconsideration. The trial court clearly rejected
wife's allegations of fraud.
As noted by the trial court in its factual findings, wife
reviewed the agreement prior to its signing. The parties
initialed each page, initialed several hand-written
- 3 - modifications, and signed the agreement. Wife's counsel was
present prior to and at the time of signing. Wife received a
copy of the agreement immediately after its execution, and
subsequently used the executed agreement in her attempts to
enforce its provisions.
The trial court's factual findings are supported by credible
evidence. Therefore, we affirm the trial court's conclusion that
wife failed to prove by clear and convincing evidence that the
agreement was tainted by fraud. Having found wife's allegations of fraud unsupported by the
evidence, the trial court did not err in incorporating the signed
agreement into its decree. See Code § 20-109.1.
Rule 1:13
"A draft of an order or decree must be endorsed by counsel
of record unless notice of its presentation is given to all
counsel of record or unless the endorsement is modified or
dispensed with by the court." Westerberg v. Westerberg, 9 Va.
App. 248, 250, 386 S.E.2d 115, 116 (1989). See Rule 1:13. "A
decree that fails to comply with Rule 1:13 is void." Id. However, the mere fact that an order may have been entered without endorsement of counsel of record does not automatically render it void. The last sentence of Rule 1:13 authorizes the trial court in its discretion to modify or dispense with the requirement of endorsement of counsel. Thus, we have held that endorsement of counsel is unnecessary under circumstances where "counsel are present in court when the ruling is made orally and are fully aware of the court's decision; preparation and entry of an order in standard form is all that remains to be
- 4 - done to end the case in the trial court."
Davis v. Mullins, 251 Va. 141, 147-48, 466 S.E.2d 90, 93 (1996)
(citation omitted).
The final decree of divorce was entered on January 9, 1998.
The trial judge and husband's counsel endorsed the decree. The
notation "no appearance on 1/9" appears on the endorsement line
for wife's counsel. The record contains no notice concerning the
presentation of the order on January 9, 1998. There are no
transcripts from the hearings held on December 16, 1997 or
January 9, 1998. Despite these omissions in the record, it is clear from the
record as a whole that wife had notice of the court's rulings
because she was present in court with counsel during the December
16, 1997 hearing when the court issued its decision. Wife's ex
parte letter to the trial judge, dated December 18, 1997,
referred to specific rulings made at the hearing. These same
rulings were contained in the final decree. Therefore, because
Rule 1:13 "is designed to protect parties without notice," Davis, 251 Va. at 147, 466 S.E.2d at 93, we cannot say that the trial
court abused its discretion by waiving endorsement by wife's
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
KATHRYN D. VENIE MEMORANDUM OPINION * v. Record No. 0342-98-4 PER CURIAM SEPTEMBER 1, 1998 DAVID A. VENIE
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Richard B. Potter, Judge
(Robert B. Machen, on briefs), for appellant. (Raymond J. Morley; Pfitzner & Morley, on brief), for appellee.
Kathryn D. Venie (wife) appeals the decision of the circuit
court finding her in contempt, incorporating an agreement signed
by wife and David A. Venie (husband), and deciding other issues.
Wife contends that the trial court (1) erred when it entered the
final decree in violation of Rule 1:13; (2) erred when it entered
orders modifying the final decree more than twenty-one days after
its entry; (3) erred when it refused to permit wife's new counsel
to depose husband's counsel; (4) erred when it ordered husband to
sell the marital home and found wife in contempt for failing to
cooperate; (5) abused its discretion when it held wife in
contempt for nonpayment of one-half of the mortgage; (6) abused
its discretion by incorporating the property settlement
agreement; (7) abused its discretion by refusing to award wife
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. spousal support; and (8) erred by prohibiting wife from
petitioning the Defense Finance and Accounting Service (DFAS) for
her share of the military retired pay. 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. See Rule 5A:27.
The record consists of the court's file, including the
written statement of facts signed by the trial judge, and several
transcripts and exhibits. No transcripts were filed for the
hearings held on December 30, 1996, December 16, 1997, or January
9, 1998. We do not consider as part of the record on appeal the
parties' summaries of hearing testimony not preserved in any form
for review. See Rules 5A:7 and 5A:8.
Settlement Agreement
Because it is a pivotal issue in wife's appeal, we address
first her contention that the trial court erred by incorporating
into the final decree a property settlement agreement dated March
27, 1996, and signed by the parties. Wife contended that
husband's counsel fraudulently substituted twenty-one different
provisions after the parties reached agreement but before the
written agreement was initialed, signed, and presented to the
trial court. Wife raised this allegation more than six months
after the agreement was signed.
On appeal, we view the evidence and reasonable inferences in
the light most favorable to husband as the party prevailing
- 2 - below. See Martin v. Pittsylvania County Dep't of Social Servs.,
3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). "Where, as here,
the court hears the evidence ore tenus, its finding is entitled
to great weight and will not be disturbed on appeal unless
plainly wrong or without evidence to support it." Id. "The one
contesting the contract must prove the allegations by clear and
convincing evidence." Derby v. Derby, 8 Va. App. 19, 26, 378
S.E.2d 74, 77 (1989). As set out in its pendente lite decree entered January 13,
1997, as well as in the written statement of facts, the trial
court found that wife failed to prove her allegations of fraud in
connection with the signing of the settlement agreement. No
transcript of the December 30, 1996 hearing on this issue appears
in the record. However, in the January 13, 1997 pendente lite
decree, the trial court rejected wife's allegations of fraud,
found that "[t]here is no evidence of any fraud in the
procurement and/or inducement" of the agreement, and found the
signed agreement to be valid. The trial court ordered the
parties to comply with its terms. The record contains the
transcript of a January 31, 1997 hearing on wife's various
motions for reconsideration. The trial court clearly rejected
wife's allegations of fraud.
As noted by the trial court in its factual findings, wife
reviewed the agreement prior to its signing. The parties
initialed each page, initialed several hand-written
- 3 - modifications, and signed the agreement. Wife's counsel was
present prior to and at the time of signing. Wife received a
copy of the agreement immediately after its execution, and
subsequently used the executed agreement in her attempts to
enforce its provisions.
The trial court's factual findings are supported by credible
evidence. Therefore, we affirm the trial court's conclusion that
wife failed to prove by clear and convincing evidence that the
agreement was tainted by fraud. Having found wife's allegations of fraud unsupported by the
evidence, the trial court did not err in incorporating the signed
agreement into its decree. See Code § 20-109.1.
Rule 1:13
"A draft of an order or decree must be endorsed by counsel
of record unless notice of its presentation is given to all
counsel of record or unless the endorsement is modified or
dispensed with by the court." Westerberg v. Westerberg, 9 Va.
App. 248, 250, 386 S.E.2d 115, 116 (1989). See Rule 1:13. "A
decree that fails to comply with Rule 1:13 is void." Id. However, the mere fact that an order may have been entered without endorsement of counsel of record does not automatically render it void. The last sentence of Rule 1:13 authorizes the trial court in its discretion to modify or dispense with the requirement of endorsement of counsel. Thus, we have held that endorsement of counsel is unnecessary under circumstances where "counsel are present in court when the ruling is made orally and are fully aware of the court's decision; preparation and entry of an order in standard form is all that remains to be
- 4 - done to end the case in the trial court."
Davis v. Mullins, 251 Va. 141, 147-48, 466 S.E.2d 90, 93 (1996)
(citation omitted).
The final decree of divorce was entered on January 9, 1998.
The trial judge and husband's counsel endorsed the decree. The
notation "no appearance on 1/9" appears on the endorsement line
for wife's counsel. The record contains no notice concerning the
presentation of the order on January 9, 1998. There are no
transcripts from the hearings held on December 16, 1997 or
January 9, 1998. Despite these omissions in the record, it is clear from the
record as a whole that wife had notice of the court's rulings
because she was present in court with counsel during the December
16, 1997 hearing when the court issued its decision. Wife's ex
parte letter to the trial judge, dated December 18, 1997,
referred to specific rulings made at the hearing. These same
rulings were contained in the final decree. Therefore, because
Rule 1:13 "is designed to protect parties without notice," Davis, 251 Va. at 147, 466 S.E.2d at 93, we cannot say that the trial
court abused its discretion by waiving endorsement by wife's
counsel and entering the final decree.
Modification of Decree
Wife contends the trial court erred when it modified the
final decree more than twenty-one days after entry. Rule 1:1
provides that "[a]ll final judgments, orders, and decrees,
- 5 - irrespective of terms of court, shall remain under the control of
the trial court and subject to be modified, vacated, or suspended
for twenty-one days after the date of entry, and no longer."
However, Code § 20-107.3(K) provides, in pertinent part, that [t]he court shall have the continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered pursuant to this section, including the authority to: 1. Order a date certain for transfer or division of any jointly owned property under subsection C or payment of any monetary award under subsection D; 2. Punish as contempt of court any willful failure of a party to comply with the provisions of any order made by the court under this section . . . .
By motion filed on March 13, 1998, husband sought a Rule to
Show Cause to enforce the final decree as to wife's payment of
attorney's fees and her production of photographs. Upon evidence
that wife filed for bankruptcy, the trial court stayed the issue
of attorney's fees. The trial court found wife in contempt for
her failure to produce the photographs for copying as ordered in
the final decree. The court then modified the procedure by which
wife was to produce the photographs.
We do not find that the court's order violated Rule 1:1.
The court retained jurisdiction to enforce its final decree. Its
"modification" did not make any substantive changes in the final
decree. Cf. Caudle v. Caudle, 18 Va. App. 795, 447 S.E.2d 247
(1994). The court merely authorized a different schedule under
which wife could produce photographs to comply with the final
- 6 - decree. Ensuring compliance with its previously-entered order
was within the court's authority.
Deposing Husband's Counsel
We find no error in the trial court's decision denying
wife's motion to order husband's counsel to withdraw and submit
to a deposition. Testifying as a witness effectively removes an
attorney from assisting his client. See generally Browning v.
Commonwealth, 19 Va. App. 295, 298-99, 452 S.E.2d 360, 361-62
(1994). "The circumstances are rare indeed where any lawyer may
properly testify in a case in which he is participating as an
advocate. Decisions of this kind must be left to the sound
discretion of the trial court." Bennett v. Commonwealth, 236 Va.
448, 464, 374 S.E.2d 303, 313 (1988).
Wife presented evidence supporting her allegations that
husband's counsel switched pages in the agreement at the last
minute. Husband produced evidence that no switch occurred.
While not deposed, husband's counsel repeatedly denied wife's
allegations that he had switched portions of the parties'
settlement agreement. The trial court found that wife's
allegations were not supported by the evidence. The trial court
did not abuse its discretion when it denied wife's motion to
depose husband's attorney.
Sale of Marital Home and Findings of Contempt
We consider jointly wife's contentions that the trial court
erred when it ordered husband to sell the marital home, found
- 7 - wife in contempt for interfering with husband's attempts to sell
the home, and found wife in contempt for failing to pay one-half
the mortgage. We find no error.
"A trial court 'has the authority to hold [an] offending
party in contempt for acting in bad faith or for willful
disobedience of its order.'" Alexander v. Alexander, 12 Va. App.
691, 696, 406 S.E.2d 666, 669 (1991) (citation omitted). "It is
within the discretion of the trial court to include, as an
element of damages assessed against the defendant found guilty of
civil contempt, the attorneys' fees incurred in the investigation
and prosecution of the contempt proceedings." Arvin, Inc. v.
Sony Corp. of America, 215 Va. 704, 706, 213 S.E.2d 753, 755
(1975) (citation omitted).
Under the terms of the parties' agreement, wife was
obligated to pay one-half the mortgage payment if the home was
not sold by August 1, 1996. The January 13, 1997 pendente lite
decree which incorporated the agreement also included the
following provision: ADJUDGED, ORDERED and DECREED that . . . [husband] obtain a real estate agent to list the marital property . . . on or before January 30, 1997. [Wife] . . . is ordered to make the property available and assist in the marketing and sale of same. Any contract and sale of the aforesaid property is subject to the approval of the Court; . . . .
Following a hearing on January 31, 1997, during which husband
testified to his attempts to pay his half of the mortgage, the
trial court found (1) that wife was in contempt for failing to
- 8 - pay one-half the mortgage payments as ordered in the pendente
lite decree; and (2) "[t]hat [wife] . . . has interfered with the
[husband's] . . . attempts to list and sell the marital home by
not signing the listing agreement, by not cooperating, and by
going out and obtaining a Trespass Notice against [husband]
. . . ." The trial court ordered wife to pay $5,920.70 as her
portion of the mortgage payments, plus late fees and the mortgage
company's attorney's fees, and to pay $500 in attorney's fees. Husband's evidence established that wife failed to comply
with the court's orders. Therefore, the trial court's decision
is supported by the evidence. We find no abuse of discretion in
the trial court's decision to hold wife in contempt.
Spousal Support
Under the parties' settlement agreement, wife agreed to
receive monthly payments from husband's pension in lieu of
spousal support, while reserving her right to seek spousal
support under certain conditions. At the time of the final
decree, wife's payment was $866. Under Code § 20-109, the trial
court had no authority to award spousal support contrary to the
terms of the parties' agreement. Accordingly, we find no error
in the trial court's decision to award wife no spousal support,
but to reserve her right to support in the future in accordance
with the terms of the parties' agreement.
Prohibition on Contacting DFAS Wife contends that the trial court erred when it ordered
- 9 - wife not to file with DFAS for direct pension allotment until May
1999. Wife's citations to the record where this issue was
purportedly preserved do not refer to this issue. Nothing in the
record indicates that this issue was raised before the trial
court.
The Court of Appeals will not consider an argument on appeal
which was not presented to the trial court. See Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)
(citing Rule 5A:18). Accordingly, Rule 5A:18 bars our
consideration of this question on appeal. Moreover, the record
does not reflect any reason to invoke the good cause or ends of
justice exceptions to Rule 5A:18. Accordingly, the decision of the circuit court is summarily
affirmed.
- 10 -