M. Morgan Cherry & Associates, Ltd. v. Cherry

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Humphreys,
Clements and Agee
Argued at Richmond, Virginia

M. MORGAN CHERRY & ASSOCIATES, LTD.
OPINION BY
v. Record No. 2854-00-4 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 20, 2002
NATALIE W. CHERRY

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge

Vernon W. Johnson, III (Jackson & Campbell,
P.C., on briefs), for appellant.

Michael C. Miller (Marcia M. Maddox Law
Office of Maddox, Cole & Miller, P.C., on
brief), for appellee.

This matter comes before the Court on a rehearing en banc

from a decision of a divided panel rendered January 22, 2002.

The panel affirmed the trial court's award of a judgment against

M. Morgan Cherry & Associates (MMCA) in the amount of $9,900.

The judgment was based on a violation of a court order, issued

pursuant to Code § 20-79.1, directing MMCA to withhold and pay

out of the disposable income of M. Morgan Cherry, an employee

and shareholder of MMCA, a deducted amount for spousal support

due the appellee, Natalie W. Cherry. The trial court found that
MMCA had violated the income deduction order and entered

judgment against it. For the following reasons, we affirm.

BACKGROUND

Under familiar principles, we state the evidence in the

light most favorable to Ms. Cherry, the party prevailing below.

Richardson v. Richardson, 30 Va. App. 341, 349, 516 S.E.2d 726,

730 (1999). MMCA is a Virginia corporation that provides

private investigation services. Mr. Cherry owns 60% of the

outstanding stock of MMCA. MMCA's other two shareholders,

Robert M. Puglisi and Thomas G. Byrne, each own 20% of the

stock. Puglisi and Byrne are not related to Mr. Cherry.

Ms. Cherry filed her bill of complaint for divorce against

Mr. Cherry on January 31, 2000. The parties entered into a

Consent Pendente Lite Support Order on May 8, 2000, which

provided that Mr. Cherry would pay Ms. Cherry $3,300 per month

in spousal support. Mr. Cherry ceased making spousal support

payments in July 2000. On July 17, 2000, Mr. Cherry instructed

MMCA to stop paying him a salary and they complied.

On August 28, 2000, at Ms. Cherry's request, the court

issued an income deduction order pursuant to Code § 20-79.1.

The income deduction order identified MMCA as the "employer" and

required MMCA to withhold and pay out of the disposable income

of Mr. Cherry a deducted amount for spousal support for Ms.

Cherry. It also provided that MMCA "shall be liable for

payments which [it] fails to withhold or mail as specified in
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the Order." The amount of the deduction was set at $3,300 per

month, subject to a limitation based on Mr. Cherry's disposable

income. Thus, depending upon the amount of disposable income it

paid to Mr. Cherry, MMCA would be obligated to make payments of

up to $3,300 per month.

On September 22, 2000, Ms. Cherry filed a motion for

satisfaction of judgment by defendant's interest in his

corporate entities. By that motion, Ms. Cherry asked the court

to require MMCA to directly satisfy, in whole or in part,

judgments and other obligations of Mr. Cherry in the case.

The court denied the motion without prejudice, holding that it

could not be heard on an abbreviated motions day.

Ms. Cherry proceeded to an equitable distribution hearing

before the trial court on October 31, 2000. MMCA filed a motion

to intervene to protect itself against discovery requests served

by Ms. Cherry. It claimed that Ms. Cherry sought privileged and

confidential information relating to the company. The trial

court denied the motion, and MMCA did not participate in the

hearing. As part of the equitable distribution hearing, Ms.

Cherry again asked that the court require MMCA to pay judgments

entered against Mr. Cherry. The court again denied the request

without prejudice, holding that Ms. Cherry had to file a

separate lawsuit to pursue the relief sought.

At the hearing, the trial court also sua sponte issued a

rule to show cause why MMCA should not be held in contempt for
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its failure to comply with the income deduction order. The

trial court set a return date of November 3, 2000 for the rule

to show cause hearing.

The trial court conducted the show cause hearing on

November 3 and November 17. The evidence proved that Mr. Cherry

had instructed MMCA to stop paying a salary to him on July 17,

2000 and that MMCA complied, but that Mr. Cherry continued as an

employee of MMCA.

Ms. Cherry contended that MMCA had a continuing liability

to Mr. Cherry. She relied, in part, on the testimony of

Puglisi, MMCA's sole witness. Puglisi acknowledged that MMCA

had approved the response to the income deduction order filed on

September 1, 2000, which stated that "Mr. Cherry instructed

[MMCA] not to make any further payments of salary or any other

amounts to him. Mr. Cherry is still an employee of [MMCA]."

Further, Puglisi testified that Mr. Cherry is co-founder and

majority shareholder of the company, that some clients choose

MMCA based on Mr. Cherry's reputation, that Mr. Cherry may have

clients that he solicits, and that he has marketing

responsibilities.

Counsel for Ms. Cherry indicated three times throughout the

show cause proceeding that she was basing her argument, in part,

on the testimony of Ms. Cherry from the equitable distribution

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hearing. 1 No transcript of evidence from the equitable

distribution hearing was introduced, however. MMCA did not

object to the references by counsel and did not produce the

evidence referred to by Ms. Cherry's counsel on appeal.

Ostensibly treating the referenced evidence from the prior

hearing as before her, the trial court judge specifically stated

that, in entering judgment against MMCA, she was relying upon

it, in part, including, inter alia, the evidence regarding "the

nature of [MMCA's] business, the kind of work that it does, its

ownership, its structure, and . . . the way Mr. Cherry operates

with respect to his multiple identities, passports, et. cetera."

MMCA failed to object, on due process or other grounds, to the

court's consideration of this evidence.

The trial judge concluded that "MMCA continues to be liable

to Max Cherry for his salary whether MMCA is paying it or not

. . . and inasmuch as it's an obligation that MMCA owes to Mr.

Cherry, it's an obligation that MMCA under this Court's income

1
First, on November 3, she noted Ms. Cherry's testimony
that she had not received support from either Mr. Cherry or MMCA
since June 2000. Again on that date, counsel referred to Ms.
Cherry's testimony regarding the methods by which Mr. Cherry
generates profits for MMCA: "[Mr. Cherry] goes around the
United States and the world and he gets business and then he has
his network of subcontractors do the business. They don't need
billing from Mr. Cherry." She also stated that MMCA did not
controvert Ms. Cherry's testimony. Finally, at the second
session of the hearing on November 17, Ms. Cherry's counsel
reminded the court that Ms. Cherry had testified at the
equitable distribution hearing that Mr. Cherry controlled MMCA.
Ms. Cherry did not testify at the show cause hearing.

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deduction order owes to Ms. Cherry." She did not find MMCA in

contempt, but entered judgment against MMCA for $9,900,

representing the amount the court deemed due from MMCA to Ms.

Cherry under the income deduction order for the months of

September, October, and November 2000. MMCA objected to the

amount of the judgment, but registered no other objections.

MMCA now appeals the trial court's entry of judgment

against it.

ANALYSIS

I.

Threshold Issues

Although Ms. Cherry presented three threshold issues for

our consideration, one of them is moot. 2 We address the

remaining issues. First, Ms. Cherry maintains that we lack

subject matter jurisdiction to hear MMCA's claims. We disagree.

We have jurisdiction pursuant to Code § 17.1-405, which states,

"[a]ny aggrieved party may appeal to the Court of Appeals

from . . . [a]ny . . . domestic relations matter arising under

Title 16.1 or Title 20." Because the court issued the income

deduction order pursuant to Code § 20-79.1, this case involves a

2
Our order dated December 22, 2000 mooted MMCA's appeal of
the trial court's December 1, 2000 order denying a supersedeas
bond. We suspended execution of the judgment, and a bond was
issued pending appeal.

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domestic relations matter arising under Title 20 and comes

within our jurisdiction.

Second, Ms. Cherry contends that MMCA's appeal of the trial

court's denial of its motion to intervene in the divorce case is

untimely. We need not address this issue because we find MMCA

did not appeal the denial of its motion to intervene.

II.

MMCA's Appeal

MMCA contends that: (1) the trial court improperly

considered evidence from an earlier proceeding; (2) the evidence

was insufficient as a matter of law to support the trial court's

finding that MMCA owed a debt to Mr. Cherry; (3) the trial court

violated MMCA's right to due process of law; and (4) the trial

court lacked authority to enter judgment on a rule to show

cause. We consider appellant's allegations seriatim.

A. Consideration of Evidence from Previous Proceeding

MMCA alleges for the first time on appeal that the trial

court improperly relied on evidence from the equitable

distribution hearing in reaching its decision to enter judgment

against MMCA. Therefore, this claim is procedurally barred.

Rule 5A:18; see also Hansel v. Commonwealth, 118 Va. 803, 808,

88 S.E. 166, 167 (1916); cf. Hess v. Commonwealth, 17 Va. App.

738, 739-44, 441 S.E.2d 29, 30-34 (1994).

At trial, MMCA did not object on due process or other

grounds to the court's consideration of the evidence when Ms.
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Cherry directed the judge to testimony from the earlier hearing

or when the trial judge stated she took it into account. Nor did

MMCA properly raise the objection in closing by stating that "on

the evidence that's before Your Honor here today, the rule to

show cause should be dismissed." See Fortune v. Commonwealth, 14

Va. App. 225, 228, 416 S.E.2d 25, 27 (1992) (holding that a

closing argument satisfies the contemporaneous objection rule

only where the trial court "considered the issue" and "had an

opportunity to take corrective action").

Finally, MMCA's failure to object does not fit within

either the "good cause" or "ends of justice" exceptions to the

rule. First, because MMCA failed to utilize several

opportunities to make its objection, 3 we find no "good cause" for

MMCA's failure to raise the issue at trial. See Luck v.

Commonwealth, 32 Va. App. 827, 834, 531 S.E.2d 41, 44 (2000)

(holding that where "the defendant had the opportunity to object

but elected not to do so," his claim is not preserved).

Second, the "ends of justice" do not require us to consider

MMCA's claim that the trial judge improperly considered evidence

from the equitable distribution proceeding because MMCA did not

present a record on appeal that affirmatively demonstrates that

such consideration "clearly had an effect upon the outcome of

3
Before making its ruling, the trial court described the
evidence from the equitable distribution hearing she considered,
then asked the plaintiff's counsel to prepare a judgment order
in her favor. In addition, opposing counsel made three

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the case." Brown v. Commonwealth, 8 Va. App. 126, 131, 380

S.E.2d 8, 10 (1989); see Redman v. Commonwealth, 25 Va. App.

215, 221, 487 S.E.2d 269, 272 (1997) ("In order to avail oneself

of the exception, a defendant must affirmatively show that a

miscarriage of justice has occurred, not that a miscarriage

might have occurred." (citing Mounce v. Commonwealth, 4 Va. App.

433, 436, 357 S.E.2d 742, 744 (1987))); see also Jones v.

Commonwealth, 29 Va. App. 503, 520-21, 513 S.E.2d 431, 440

(1999). Without the evidence MMCA claimed the judge erroneously

considered, we cannot perform the necessary calculus to

determine whether the error was clear, substantial and material.

See Jenkins v. Winchester Dep't of Soc. Servs., 12 Va. App.

1178, 1185, 409 S.E.2d 16, 20 (1991).

Because MMCA failed, without good cause, to object to the

court's use of evidence from the prior proceeding and has not

proven that a manifest injustice resulted, we will not consider

the merits of this argument on appeal.

B. Sufficiency of the Evidence

MMCA also contends the trial court erred in its finding

that MMCA owed a debt to Mr. Cherry. Our standard of review

requires that we presume the judgment of the trial court to be

correct, Broom v. Broom, 15 Va. App. 497, 504, 425 S.E.2d 90, 94

(1992), and that we sustain its finding unless it is plainly

references to it in support of her argument.

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wrong or without evidence to support it. Dodge v. Dodge, 2 Va.

App. 238, 242, 343 S.E.2d 363, 365 (1986).

Furthermore, MMCA bears the burden of proving that the

evidence did not justify the conclusion that MMCA owed a debt to

Mr. Cherry, including presentation of a record that demonstrates

that the decision of the trial court was clearly erroneous or

unsupported by the record. Justis v. Young, 202 Va. 631, 632,

119 S.E.2d 255, 256-57 (1961); Jenkins, 12 Va. App. at 1185, 409

S.E.2d at 20; Steinberg v. Steinberg, 11 Va. App. 323, 326, 398

S.E.2d 507, 508 (1990); Kaufman v. Kaufman, 7 Va. App. 488, 499,

375 S.E.2d 374, 380 (1988). "If the appellant fails to do this,

the judgment will be affirmed." Justis, 202 Va. at 632, 119

S.E.2d at 257. The appellant must present to the appellate

court all the evidence considered by the trial judge, including

evidence that may have been considered improperly but without

objection. See Commonwealth v. Jenkins, 255 Va. 516, 522, 499

S.E.2d 263, 266 (1998) ("Since the handwritten notation on the

discharge summary was received without objection as evidence in

the case, the Court of Appeals erred in disregarding that

portion of the exhibit in reviewing the sufficiency of the

evidence.").

Because MMCA has not met its burden of producing the

challenged evidence for our review on appeal, we cannot say the

evidence before the trial judge was insufficient as a matter of

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law to support her finding. Therefore, we affirm her decision

on this issue.

C. Due Process 4

We find no merit in MMCA's claim that the trial court

violated its due process rights because it lacked reasonable

notice that its financial interests were at stake at the show

cause hearing. The trial court twice notified MMCA that it

could issue a money judgment against it. First, the trial court

issued an income deduction order, which, pursuant to Code

§ 20-79.3(11), specifically provided that MMCA "shall be liable

for payments which [it] fails to withhold or mail." Second, we

have previously held that a trial court may issue a money

judgment on a rule to show cause. See Shoup v. Shoup, 31

Va. App. 621, 627-28, 525 S.E.2d 61, 64-65 (2000). MMCA was

properly served with the rule to show cause and was chargeable

with the knowledge that, under Virginia law, its financial

interests were at stake.

Likewise, we find no merit in MMCA's contention that the

trial court, at the show cause hearing, improperly denied its

right to a jury trial and its right to cross-examine evidence

4
As discussed in Section I of this opinion, we do not find
that MMCA appealed the denial of its motion to intervene.
Therefore, we do not address the claim that the denial violated
due process.

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against it. 5 It is uncontested that MMCA participated as a party

in the show cause hearing. At no time during the hearing did

MMCA request, or make an effort to implement its right, to

cross-examine or a jury trial.

D. Entry of Judgment on Rule to Show Cause

MMCA also argued, for the first time in its reply brief,

that the trial court had no legal basis to enter judgment

against it to enforce the terms of the income deduction order in

the context of a contempt hearing on the rule to show cause.

Because this issue was not presented below, we do not consider

it on appeal. Rule 5A:18.

For the foregoing reasons, we affirm the trial court's

decision.

Affirmed.

5
For reasons discussed in Section II(A) of this opinion, we
do not address MMCA's argument that it could not cross-examine
the evidence from the equitable distribution hearing.

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Benton, J., with whom Fitzpatrick, C.J., Bray, Bumgardner, and
Agee, JJ., join, dissenting.

M. Morgan Cherry & Associates, Ltd., a Virginia

corporation, was not a party to the divorce proceedings between

Natalie W. Cherry and her husband, Max Morgan Cherry, III. Yet,

in November 2000 hearings to determine whether the corporation

violated an income deduction order, which was entered in the

divorce proceeding, the trial judge judicially recognized facts

that apparently were proved in the equitable distribution phase

of the divorce proceeding. Based substantially on those facts,

the judge entered a money judgment against the corporation for

violating the income deduction order. I would hold that the

judge committed reversible error.

"The general rule is that the court will
not travel outside the record of the case
before it in order to take notice of the
proceedings in another case, even between
the same parties and in the same court,
unless the proceedings are put in evidence.
The reason for the rule is that the decision
of a cause must depend upon the evidence
introduced. If the courts should recognize
judicially facts adjudicated in another
case, it makes those facts, though
unsupported by evidence in the case at hand,
conclusive against the opposing party; while
if they had been properly introduced they
might have been met and overcome by him."

Bernau v. Nealon, 219 Va. 1039, 1043, 254 S.E.2d 82, 85 (1979)

(citation omitted).

The record establishes that the managing principal officer,

who is one of the three shareholders of the corporation, was the

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sole witness at the hearing from which this appeal arises. He

testified that in February 2000, he had a discussion with the

husband about his decreased participation in the corporation's

business. He told the husband "that the drop in his hourly

contribution was significantly impacting the company and . . .

that it wasn't quite fair that the compensation he was receiving

was based on . . . 1997, 1998 involvement." In July 2000, he

again discussed with the husband the lack of justification for

paying the husband when "no income [was] coming from [the

husband]." At that time, the husband had only 100 billable

hours for all of the year 2000. Based on those discussions, the

husband agreed in July 2000 that the corporation should stop

paying his salary. The corporation did so on July 17. The

managing principal officer testified that the husband, who owns

60% of the corporation's stock, continues to be one of the three

shareholders of the corporation and is an inactive, unpaid

employee.

In September 2000, seven months after the managing

principal officer confronted the husband about his

unproductivity, the corporation first received notice of the

income deduction order. The corporation promptly filed in the

circuit court its response that it "has made no payments of

salary or any other amounts to [husband] since July 17, 2000."

In response to questions from the wife's attorney at the show

cause hearing, the managing principal officer was clear that the
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husband was not participating in the affairs of the corporation.

He testified as follows:

Q And sometimes [the husband] is a director
of operations and does marketing and
business management and so forth, too,
doesn't he?

A He has, yes, in the past.

Q And the operations that are the source of
revenue for [the corporation] are
investigations, are they not?

A Yes, sir.

Q And [the husband] conducts those
investigations, doesn't he?

A He has in the past.

Q And in fact [the husband] is [the
corporation's] primary investigator, isn't
he?

A No, that's not true.

* * * * * *

Q But nobody has ever compelled him to go
out and work, have they?

A We have in the past tried to get him to
-- as a matter of fact, this summer, get
him to work cases for us and he just hasn't
been able to do it. I don't know the
reasons why. I've retained the
responsibilities for those matters and Mr.
Burn has also for those matters.

It would be difficult to say we could
force him to do work when he's not
physically here. I believe I haven't seen
him for five months or more.

* * * * * *

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 Q So he's in charge of marketing and
representing the corporation at trade shows
and soliciting clients?

A He's not in charge of soliciting clients.
He may have clients that he solicits. He
has marketing responsibilities as we all do.
This is a small company; I don't know if you
understand that.

The only way that it functions is the
output of all of its parties and when one
party doesn't function, it puts more burden
on the other parties and that's what the
situation is here and that's what led us,
you know, to the conclusion that paying him
a salary was not justified.

The managing principal officer further testified that the

corporation owed no accrued salary to the husband, held no money

that was his, and provided to him no other benefits. He

testified that the minority owners had no power "to fire" the

husband because the husband was the majority stockholder. Their

only "options or alternatives were to . . . dissolve or separate

[themselves] from the company." He testified that the coming

December would be the end of the fiscal year and that decisions

would then be made about bonuses. He also testified that the

corporation has "never had a dividend." No other witness

testified, and no other documentary evidence was presented at

the hearing.

In argument to the trial judge at the conclusion of that

testimony, the corporation's attorney asserted that "on the

evidence that's before your Honor here today, the rule to show

cause should be dismissed." The judge took the matter under
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advisement for two weeks. At a later hearing, which consisted

only of further argument by the attorneys, the judge ruled from

the bench. In pertinent part, she stated the following:

Well, I recall all the evidence that was
adduced at the hearing last time, primarily
through [the managing principal officer],
but I have also considered the evidence that
was received during the equitable
distribution case about [the corporation],
the nature of the business, the kind of work
that it does, its ownership, its structure,
and I also rely upon the evidence that I
heard during the equitable distribution case
regarding the way [the husband] operates
with respect to his multiple identities,
passports, et. cetera.

* * * * * *

So today, pursuant to the income deduction
order that was entered by this Court on
August 28th of 2000, I am entering a
judgment against [the corporation] in the
amount of $9,900 for its failure to make
payments for September 1, October 1, and
November 1 of the year 2000.

(Emphasis added). Immediately at the conclusion of the hearing,

the judge entered an "Order Pertaining to Rule Against MMCA,"

which incorporated the judge's "bench ruling" and "awarded a

judgment against [the corporation] in the . . . amount of

$9,900," plus interest, in satisfaction of the income deduction

order. The corporation's attorney "objected to [the order] on

the grounds stated in open Court and on the record herein."

"[I]t was plain error for [the trial judge] to go outside

the record to find another reason to support [her] decision."

Russell County School Bd. v. Anderson, 238 Va. 372, 385, 384
- 17 -
S.E.2d 598, 605 (1989). Moreover, this is not a case such as

Hansel v. Commonwealth, 118 Va. 803, 808, 88 S.E. 166, 167

(1916), where the trial judge "permit[ted] the evidence . . .

given in the [other] case . . . to be read in evidence" in this

case. See also Luck v. Commonwealth, 32 Va. App. 827, 834, 531

S.E.2d 41, 44 (2000) (noting that the trial judge "made the

letter part of the file and the record"). Neither party offered

as evidence any matters proved on the record in the equitable

distribution phase of the divorce proceeding. Moreover, the

corporation was not a party to the divorce proceeding.

Because no matters concerning the equitable distribution

proceeding were offered as evidence in the show cause

proceeding, the corporation's attorney had no occasion to

object. Indeed, after the evidence described above was proved

by the testimony of the corporation's managing principal

officer, the trial judge entertained "argument" by the

attorneys. Although the majority opinion recognizes that

references to the extraneous "evidence" first occurred when the

wife's attorney, during summation argument, made references to

the wife's divorce proceeding testimony, the record clearly

establishes that no evidence was then being offered and the only

issue before the trial judge concerned the import of the

evidence in the show cause proceeding. I believe, therefore,

that the corporation's attorney's closing argument adequately

preserved for review both the objection to the judge's reliance
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on evidence not in the record and the objection to insufficiency

of the evidence. He informed the judge that "on the evidence

that's before Your Honor here today" there was no evidence to

prove the corporation owed any monetary obligation to husband.

In addition, the attorney noted the same objection on the final

order.

"The primary function of Rule 5A:18 is to alert the trial

judge to possible error so that the judge may consider the issue

intelligently and take any corrective actions necessary to avoid

unnecessary appeals, reversals and mistrials." Martin v.

Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992).

The contemporaneous objection requirement may be satisfied by an

attorney's closing argument that touches upon the matter at

issue. Taylor v. Commonwealth, 28 Va. App. 498, 504, 507 S.E.2d

89, 91 (1998); Fortune v. Commonwealth, 14 Va. App. 225, 228,

416 S.E.2d 25, 27 (1992); Harris v. Commonwealth, 13 Va. App.

593, 596, 413 S.E.2d 354, 355-56 (1992). That was done in this

case. Moreover, the judge, who had tried the divorce case and

had denied the corporation's motion to intervene in the divorce

case, knew the corporation was not a party to the divorce

proceeding. The attorney's argument, which directed the judge's

attention to "the evidence that's before Your Honor here today,"

clearly put the judge on notice that she was limited to

considering "the evidence . . . before" her at the show cause

proceeding. I would hold, therefore, that the attorney
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preserved for appeal both the issues of insufficiency of the

evidence and the limitation of evidence to that which was

contained in the record.

Contrary to the majority opinion's "ends of justice"

discussion, I would hold that, in any event, to attain the ends

of justice we should consider this issue of the judge's reliance

on facts not in evidence. See Rule 5A:18. "'An appellate court

may . . . take cognizance of errors though not assigned when

they . . . are fundamental.'" Cooper v. Commonwealth, 205 Va.

883, 889, 140 S.E.2d 688, 693 (1963) (citation omitted). The

judge's "plain error" deprived the corporation of a fundamental

right because the only evidence before the trial judge in this

limited proceeding was the uncontradicted testimony of the

managing principal officer that the corporation did not owe the

husband income, as defined in the income deduction order and by

Code § 63.1-250. The evidence before the judge in the November

hearings, the only proceeding to which the corporation was a

party, did not contain a scintilla of proof concerning the

evidence previously given in the equitable distribution phase of

the divorce proceeding. Cf. Hansel, 118 Va. at 808, 88 S.E. at

167 (noting that the trial judge permitted the evidence from the

other case "to be read in evidence").

Moreover, the corporation had no opportunity to know,

challenge, or rebut evidence from the prior hearings that the

wife or the judge considered significant. The corporation,
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therefore, was denied the essence of due process. See Goldberg

v. Kelly, 397 U.S. 254, 267-71 (1970) (holding that notice and

an effective opportunity to defend by confronting and

cross-examining adverse witnesses are components of the right to

due process); Browning-Ferris Industries v. Kelco Disposal, 492

U.S. 257, 285 (1989) (holding that "a corporation is entitled to

due process . . . of law"). "The denial of due process involves

the denial of a fundamental constitutional right and falls

within the ambit of Rule 5A:18 to attain the ends of justice."

Allen v. Commonwealth, 36 Va. App. 334, 338-39, 549 S.E.2d 652,

654 (2001). Applying these principles, we may invoke the ends

of justice exception in a case such as here, where the due

process violation results in a miscarriage of justice. See id.

at 339, 549 S.E.2d at 654. A miscarriage of justice is apparent

in this case because the evidence properly before the judge

affirmatively proved that the corporation owed no income or

other monetary obligation to the husband.

I would hold further that the judge's "plain error" in

considering evidence outside the record was not harmless. The

trial judge generally stated that she also was relying on

evidence she heard "during the equitable distribution case,

about [the corporation], the nature of the business, the kind of

work . . . it does, its ownership, its structure, and . . .

[about] the way [the husband] operates with respect to his

multiple identities, passports, et. cetera." This error was
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significant because it impacted upon the lack of credit the

judge gave to the unimpeached testimony of the corporation's

managing officer.

While a jury, or a judge trying a case
without a jury, are the judges of the weight
of the testimony and the credibility of
witnesses, they may not arbitrarily
disregard uncontradicted evidence of
unimpeached witnesses which is not
inherently incredible and not inconsistent
with the facts appearing in the record, even
though such witnesses are interested in the
outcome of the case.

Here [the] evidence was uncontradicted;
it was not inherently incredible; and it
constituted the only facts appearing in the
record. Even . . . [if] the trial judge did
not believe [the] testimony, [her] mere
belief or speculation is not sufficient to
disregard the evidence.

Hodge v. American Family Life, 213 Va. 30, 31-32, 189 S.E.2d

351, 353 (1972). See also Cheatham v. Gregory, 227 Va. 1, 4-5,

313 S.E.2d 368, 370 (1984). The judge's decision to enter the

judgment was substantially swayed by her erroneous consideration

of facts not in evidence.

Additionally, the majority opinion's sufficiency analysis

operates upon the faulty premises that an argument by an

attorney to the judge concerning the incidents of the case and

the judge's notice of facts adjudicated in another proceeding

constitute evidence. Those premises are contrary to well

established principles. See Bernau, 219 Va. at 1041, 254 S.E.2d

at 84 (holding that "[i]ndividual and extrajudicial knowledge on

- 22 -
the part of a judge will not dispense with proof of facts not

judicially cognizable, and cannot be resorted to for the purpose

of supplementing the record"); Waye v. Commonwealth, 219 Va.

683, 691, 251 S.E.2d 202, 206 (1979) (approving the judge's

instruction to "the jury that the [attorney's] statement was not

evidence"); Cook v. Hayden, 183 Va. 203, 226, 31 S.E.2d 625, 634

(1944) (holding "that the statements [of the attorney concerning

facts to be proved] were not evidence"); Cummings v.

Commonwealth, 24 Va. App. 248, 251-52, 481 S.E.2d 493, 494

(1997) (holding that the attorney's discussion with the judge

about facts to be proved is not evidence). Relying upon these

faulty premises, the majority misapplies Commonwealth v.

Jenkins, 255 Va. 516, 499 S.E.2d 263 (1998), and misconstrues

its holding as requiring an appellate court to accept all

extraneous matters "considered" by the trial judge. In Jenkins,

the Supreme Court held that in reviewing an appeal for

sufficiency of the evidence, "the reviewing court must consider

all evidence properly admitted at trial." 255 Va. at 522, 499

S.E.2d at 266 (emphasis added).

The facts of this case reveal that, after the evidence had

been established at an evidentiary hearing, the wife's attorney

referred during summation argument to testimony apparently made

at the earlier equitable distribution phase of the divorce

proceeding to which the corporation was not a party. Neither

the attorney's statements nor the judge's bench remarks are
- 23 -
evidence. Moreover, the wife's attorney neither proffered as

evidence nor read into evidence the record from the equitable

distribution phase of the divorce proceeding upon which the

trial judge relied. Although it is the responsibility of the

corporation, as appellant, to present this Court with a full

record, that responsibility does not include presenting

documents not in evidence. See Bernau, 219 Va. at 1043, 254

S.E.2d at 85. The record before us clearly establishes that

evidence from the equitable distribution proceeding in the

divorce case was not admitted into the record of this hearing.

Accordingly, on review for sufficiency of the evidence, the

majority opinion incorrectly concludes that the record on appeal

includes "evidence [from the equitable distribution hearing]

referred to by [the wife's] counsel" in argument to the trial

judge. I would hold that Jenkins does not require us to

consider in a sufficiency analysis that which was not offered

and accepted into evidence. Simply put, arguments made by the

wife's attorney and statements by the judge in a ruling from the

bench are not evidence in the case.

For these reasons, I would hold that the trial judge erred

in judicially noticing facts which were proved in a proceeding

where the corporation was not a party and which were not

introduced as evidence in the proceeding at bar. This error

substantially affected the trial court's ruling. I would also

hold that the evidence which was properly admitted was
- 24 -
uncontradicted and insufficient, as a matter of law, to support

the judge's rulings. See Cheatham, 227 Va. at 4-5, 313 S.E.2d

at 370. I would, therefore, reverse the judgment.

- 25 -
 Tuesday 26th

March, 2002.

M. Morgan Cherry and Associates, LTD., Appellant,

against Record No. 2854-00-4
Circuit Court No. CH-164825

Natalie W. Cherry, Appellee.

Upon a Petition for Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements and Agee

On February 5, 2002 came the appellant, by counsel, and

filed a petition praying that the Court set aside the judgment

rendered herein on January 22, 2002, and grant a rehearing en

banc thereof.

On consideration whereof, the petition for rehearing en

banc is granted, the mandate entered herein on January 22, 2002

is stayed pending the decision of the Court en banc, and the
appeal is reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule

5A:35. The appellant shall attach as an addendum to the opening

brief upon rehearing en banc a copy of the opinion previously
rendered by the Court in this matter. It is further ordered that

the

- 26 -
appellant shall file with the clerk of this Court twelve

additional copies of the appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

- 27 -
 COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Hodges
Argued at Alexandria, Virginia

M. MORGAN CHERRY & ASSOCIATES, LTD.
OPINION BY
v. Record No. 2854-00-4 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 22, 2002
NATALIE W. CHERRY

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge

Vernon W. Johnson, III (James A. Allen;
Jackson & Campbell, P.C., on briefs), for
appellant.

Michael Miller (Marcia M. Maddox; Cynthia A.
King; Law Office of Maddox & Cole, P.C., on
brief), for appellee.

The appellant, M. Morgan Cherry & Associates, Ltd. (MMCA),

appeals the award of a judgment against it in the amount of

$9,900. The judgment stemmed from an alleged violation of a

court order, issued pursuant to Code § 20-79.1, directing MMCA

to withhold and pay out of the disposable income of M. Morgan

Cherry, an employee and shareholder of MMCA, a deducted amount

for spousal support due the appellee, Natalie W. Cherry. The

trial court found that MMCA had violated the income deduction

order and entered judgment against it. For the following

reasons, we affirm.
- 28 -
 BACKGROUND

Under familiar principles, we state the evidence in the

light most favorable to Ms. Cherry, the party prevailing below.

Richardson v. Richardson, 30 Va. App. 341, 349, 516 S.E.2d 726,

730 (1999). MMCA is a Virginia corporation that provides

private investigation services. Mr. Cherry owns 60% of the

outstanding stock of MMCA. MMCA's other two shareholders,

Robert M. Puglisi and Thomas G. Byrne, each own 20% of the

stock. Puglisi and Byrne are not related to Mr. Cherry.

Ms. Cherry filed her bill of complaint for divorce against

Mr. Cherry on January 31, 2000. The parties entered into a

Consent Pendente Lite Support Order on May 8, 2000, which

provided that Mr. Cherry would pay Ms. Cherry $3,300 per month

in spousal support. Mr. Cherry ceased making spousal support

payments in July 2000. On July 17, 2000, Mr. Cherry instructed

MMCA to stop paying him a salary and they complied.

On August 28, 2000, at Ms. Cherry's request, the court

issued an income deduction order pursuant to Code § 20-79.1.

The income deduction order identified MMCA as the "employer" and

required MMCA to withhold and pay out of the disposable income

of Mr. Cherry a deducted amount for spousal support for Ms.

Cherry. It also provided that MMCA "shall be liable for

payments which [it] fails to withhold or mail as specified in

the Order." The amount of the deduction was set at $3,300 per

month, subject to a limitation based on Mr. Cherry's disposable
- 29 -
income. Thus, depending upon the amount of disposable income it

paid to Mr. Cherry, MMCA would be obligated to make payments of

up to $3,300 per month.

On September 22, 2000, Ms. Cherry filed a motion for

satisfaction of judgment by defendant's interest in his

corporate entities. By that motion, Ms. Cherry asked the court

to require MMCA to directly satisfy, in whole or in part,

judgments and other obligations of Mr. Cherry in the case.

The court denied the motion without prejudice, holding that it

could not be heard on an abbreviated motions day.

Ms. Cherry proceeded to an equitable distribution hearing

before the trial court on October 31, 2000. MMCA filed a motion

to intervene to protect itself against discovery requests served

by Ms. Cherry. It claimed that Ms. Cherry sought privileged and

confidential information relating to the company. The trial

court denied the motion, and MMCA did not participate in the

hearing. As part of the equitable distribution hearing, Ms.

Cherry again asked that the court require MMCA to pay judgments

entered against Mr. Cherry. The court again denied the request

without prejudice, holding that Ms. Cherry had to file a

separate lawsuit to pursue the relief sought.

At the hearing, the trial court also sua sponte issued a

rule to show cause why MMCA should not be held in contempt for

its failure to comply with the income deduction order. The

- 30 -
trial court set a return date of November 3, 2000 for the rule

to show cause hearing.

The trial court conducted the show cause hearing on

November 3 and November 17. The evidence proved that Mr. Cherry

had instructed MMCA to stop paying a salary to him on July 17,

2000 and that MMCA complied, but that Mr. Cherry continued as an

employee of MMCA.

Ms. Cherry contended that MMCA had a continuing liability

to Mr. Cherry. She relied, in part, on the testimony of

Puglisi, MMCA's sole witness. Puglisi acknowledged that MMCA

had approved the response to the income deduction order filed on

September 1, 2000, which stated that "Mr. Cherry instructed

[MMCA] not to make any further payments of salary or any other

amounts to him. Mr. Cherry is still an employee of [MMCA]."

Further, Puglisi testified that Mr. Cherry is co-founder and

majority shareholder of the company, that some clients choose

MMCA based on Mr. Cherry's reputation, that Mr. Cherry may have

clients that he solicits, and that he has marketing

responsibilities.

Counsel for Ms. Cherry indicated three times throughout the

show cause proceeding that she was basing her argument, in part,

- 31 -
on the testimony of Ms. Cherry from the equitable distribution

hearing. 6 No transcript of evidence from the equitable

distribution hearing was introduced, however. MMCA did not

object to the references by counsel and did not produce the

evidence referred to by Ms. Cherry's counsel on appeal.

Ostensibly treating the referenced evidence from the prior

hearing as before her, the trial court judge specifically stated

that, in entering judgment against MMCA, she was relying upon

it, including, inter alia, the evidence regarding "the nature of

[MMCA's] business, the kind of work that it does, its ownership,

its structure, and . . . the way Mr. Cherry operates with

respect to his multiple identities, passports, et. cetera."

MMCA failed to object, on due process or other grounds, to the

court's consideration of this evidence.

The trial judge concluded that "MMCA continues to be liable

to Max Cherry for his salary whether MMCA is paying it or not

6
First, on November 3, she noted Ms. Cherry's testimony
that she had not received support from either Mr. Cherry or MMCA
since June 2000. Again on that date, counsel referred to Ms.
Cherry's testimony regarding the methods by which Mr. Cherry
generates profits for MMCA: "[Mr. Cherry] goes around the
United States and the world and he gets business and then he has
his network of subcontractors do the business. They don't need
billing from Mr. Cherry." She also stated that MMCA did not
controvert Ms. Cherry's testimony. Finally, at the second
session of the hearing on November 17, Ms. Cherry's counsel
reminded the court that Ms. Cherry had testified at the
equitable distribution hearing that Mr. Cherry controlled MMCA.
Ms. Cherry did not testify at the show cause hearing.

- 32 -
. . . and inasmuch as it's an obligation that MMCA owes to Mr.

Cherry, it's an obligation that MMCA under this Court's income

deduction order owes to Ms. Cherry."

The trial judge did not find MMCA in contempt, but entered

judgment against MMCA for $9,900, representing the amount the

court deemed due from MMCA to Ms. Cherry under the income

deduction order for the months of September, October, and

November 2000. MMCA objected to the amount of the judgment.

Thereafter, the trial court refused to allow MMCA to post a

supersedeas bond. We reversed that ruling on December 22, 2000,

and an appropriate supersedeas bond was set and posted by MMCA.

MMCA now appeals the trial court's entry of judgment

against it.

ANALYSIS

I.

Threshold Issues

Although Ms. Cherry presented three threshold issues for

our consideration, one of them is moot. 7 We address the

remaining issues. First, Ms. Cherry maintains that we lack

subject matter jurisdiction to hear MMCA's claims. We disagree.

We find that we have jurisdiction pursuant to Code § 17.1-405,

7
Our order dated December 22, 2000 mooted MMCA's appeal of
the trial court's December 1, 2000 order denying a supersedeas
bond. We suspended execution of the judgment, and a bond was
issued pending appeal.

- 33 -
which states, "Any aggrieved party may appeal to the Court of

Appeals from . . . [a]ny . . . domestic relations matter arising

under Title 16.1 or Title 20." The court issued the income

deduction order pursuant to Code § 20-79.1. Therefore, this

appeal involves a domestic relations matter arising under Title

20 and comes within our jurisdiction.

Second, Ms. Cherry contends that, to the extent MMCA

attempts to appeal the trial court's denial of its motion to

intervene in the divorce case, the appeal is untimely. We need

not address this issue because we find MMCA did not appeal the

denial of its motion to intervene.

MMCA couches the question as one involving a violation of

its due process rights, stating, "MMCA's rights were violated in

that it was denied the opportunity to cross-examine the evidence

received against it [in the equitable distribution hearing]."

However, MMCA moved to intervene for the limited purpose of

defending itself against certain discovery requests by Ms.

Cherry in the divorce proceeding. 8 It did not seek to intervene

in the evidentiary hearing on equitable distribution. Thus, had

the court granted MMCA's motion to intervene in the divorce

proceeding, its participation would have been limited to

discovery issues, i.e. the relief requested in its motion. See

8
In its discretion, the trial court denied MMCA's motion to
intervene because, inter alia, none of the discovery was
directed to MMCA.

- 34 -
Johnson v. Buzzard Island Shooting Club, Inc., 232 Va. 32, 37,

348 S.E.2d 220, 223 (1986) (holding that trial court may not

grant relief to a party inconsistent with the case alleged in

the party's pleading); cf. Rule 2:15 (referring to one who

intervenes as a "party" to the proceeding and motions to

intervene as a "pleading" to intervene and providing that

motions to intervene are governed by the Rules applicable to all

pleadings); see also United States v. AT&T, 642 F.2d 1285, 1295

(D.C. Cir. 1980) (permitting MCI to intervene for the limited

purpose of appealing discovery order, as requested in motion to

intervene); Sackman v. Liggett Group, 167 F.R.D. 6, 23 (E.D.N.Y.

1996) (limiting intervention to issue of whether certain

documents are discoverable, as requested in motion to

intervene); Rosado v. Bridgeport Roman Catholic Diocesan Corp.,

758 A.2d 916, 927 (Conn. 2000) (granting "intervention for the

unique purpose of contesting the disclosure of private,

confidential files and issues relating to this interest," as

requested in motion to intervene). It would not have had the

opportunity to cross-examine evidence tending to prove that it

owed a debt to Mr. Cherry. Thus, MMCA waived any due process

right to cross-examine the evidence at the equitable

distribution hearing.

In short, because MMCA never sought to intervene in the

evidentiary hearing, its due process argument that it was

deprived of its right to cross-examine evidence does not raise
- 35 -
the denial of its motion to intervene on appeal and the issue is

not before us.

II.

MMCA's Appeal

MMCA contends on appeal that: (1) the trial court

improperly considered evidence from an earlier proceeding; (2)

the evidence was insufficient as a matter of law to support the

trial court's finding that MMCA owed a debt to Mr. Cherry; (3)

the trial court violated MMCA's right to due process of law; and

(4) the trial court lacked authority to enter judgment on a rule

to show cause. We consider appellant's allegations seriatim and

find each to be without merit.

A. Consideration of Evidence from Previous Proceeding

MMCA alleges for the first time on appeal that the trial

court improperly relied on evidence from the equitable

distribution hearing in reaching its decision to enter judgment

against MMCA. We find this claim procedurally barred. See Rule

5A:18 ("[n]o ruling of the trial court . . . will be considered

as a basis for reversal unless the objection was stated together

with the grounds therefor at the time of the ruling, except for

good cause shown or to enable the Court of Appeals to attain the

ends of justice"); see also Hansel v. Commonwealth, 118 Va. 803,

808, 88 S.E. 166, 167 (1916) (declining to reach the merits of

defendant's objection, not preserved below, to the reading into

evidence of the stenographer's report from defendant's civil
- 36 -
case at his criminal trial); cf. Hess v. Commonwealth, 17 Va.

App. 738, 739-44, 441 S.E.2d 29, 30-34 (1994) (considering the

merits of appellant's assignment of error that trial judge based

his finding on evidence from an earlier proceeding, where

defense counsel specifically objected to the consideration of

the evidence before the trial court).

MMCA did not object on due process or other grounds to the

trial judge's consideration of the evidence when Ms. Cherry

directed the judge to testimony from the earlier hearing or when

the trial judge stated she took it into account. Nor did MMCA

properly raise the objection in closing by stating that "on the

evidence that's before Your Honor here today, the rule to show

cause should be dismissed."

While a closing argument may satisfy the contemporaneous

objection rule, not all references are sufficient.

If a closing argument adequately advises the
trial court of the defendant's position and
if it is clear that the trial court
considered the issue and had an opportunity
to take corrective action, the
contemporaneous objection rule is satisfied.

Fortune v. Commonwealth, 14 Va. App. 225, 228, 416 S.E.2d 25, 27

(1992) (citing Campbell v. Commonwealth, 12 Va. App. 476, 478,

405 S.E.2d 1, 2 (1991) (en banc)). In the present case, MMCA's

closing statement failed to alert the judge to its claim that

she erroneously considered evidence from an earlier proceeding.

Indeed, its reference to the evidence "before [her] Honor"

- 37 -
necessarily encompassed the evidence from the earlier hearing,

as no objection to its consideration had been raised.

Therefore, the court never "considered the issue" or "had an

opportunity to take corrective action," as required by our

decision in Fortune. 14 Va. App. at 228, 416 S.E.2d at 27. As

such, counsel's closing argument failed to satisfy the

contemporaneous objection rule.

Finally, we find that MMCA's failure to object does not fit

within either the "good cause" or "ends of justice" exceptions

to the rule. The "good cause" exception relates to the reasons

an objection was not stated at the time of the ruling, F.E. v.

G.F.M., 35 Va. App. 648, 659, 547 S.E.2d 531, 536 (2001) (en

banc) (citations omitted), and is thereby analogous to the

grounds underlying the absence of an "opportunity to object"

exception to the contemporaneous objection requirement.

Campbell v. Commonwealth, 14 Va. App. 988, 996, 421 S.E.2d 652,

656 (1992) (en banc) (Barrow, J., concurring); see Code

§ 8.01-384(A) ("[I]f a party has no opportunity to object to a

ruling or order at the time it is made, the absence of an

objection shall not thereafter prejudice him on motion for a new

trial or appeal.").

Our reasoning in Luck v. Commonwealth guides our

determination of the absence of "good cause" in the present

case. 32 Va. App. 827, 531 S.E.2d 41 (2000). In sentencing the

defendant, the trial judge considered a letter written to the
- 38 -
court from the defendant's aunt. Id. at 834, 531 S.E.2d at 44.

Although defense counsel was unaware of the letter until the

trial judge noted that he had already considered it, we held

that the claim was not preserved because he did not request an

opportunity to review the letter or make any response to its

contents upon learning of the letter. We concluded that despite

this late knowledge, "the defendant had the opportunity to

object but elected not to do so." Id.

MMCA had greater opportunity than Luck to make its

objection. As in Luck, the trial judge in this case made it

clear she had considered evidence from the equitable

distribution hearing before she finalized her ruling. She

described the evidence from the equitable distribution hearing

she considered, then asked the plaintiff's counsel to prepare a

judgment order in her favor. Defense counsel asked to address

the court before the order was entered, and the court permitted

him the opportunity. MMCA took that opportunity to object only

to the amount of the judgment and declined to mention its claim

that the judge improperly considered certain evidence. Hence,

"the defendant had the opportunity to object [to the court's

consideration of the evidence from the earlier proceeding,] but

elected not to do so." Id.

Furthermore, before the trial judge notified MMCA's counsel

that she had considered the evidence, opposing counsel made

three references to it in support of her argument. At the first
- 39 -
session of the show cause hearing, Ms. Cherry's counsel made two

references to testimony from the equitable distribution

proceeding. Two weeks later, at the second session, counsel

again referred to the evidence developed at the equitable

distribution hearing. MMCA, therefore, had several

opportunities to object to consideration of and reliance upon

the evidence both by counsel and the court. Accordingly, we

find no "good cause" for MMCA's failure to raise the issue at

trial.

We also find that the "ends of justice" exception does not

require us to consider MMCA's claim that the trial judge

improperly considered evidence from the equitable distribution

proceeding. The "ends of justice" exception "is narrow and is

to be used sparingly." Brown v. Commonwealth, 8 Va. App. 126,

132, 380 S.E.2d 8, 11 (1989). Indeed, "it is a rare case in

which, rather than invoke Rule [5A:18], we rely upon the

exception and consider an assignment of error not preserved at

trial." Jimenez v. Commonwealth, 241 Va. 244, 249, 402 S.E.2d

678, 680 (1991). "In order to avail oneself of the exception, a

defendant must affirmatively show that a miscarriage of justice

has occurred, not that a miscarriage might have occurred."

Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269,

272 (1997) (citing Mounce v. Commonwealth, 4 Va. App. 433, 436,

357 S.E.2d 742, 744 (1987)); see Herring v. Herring, 33 Va. App.

281, 287, 532 S.E.2d 923, 926 (2000) (noting that only "clear,
- 40 -
substantial and material" errors require the application of the

ends of justice exception (citations omitted)); Brown, 8 Va.

App. at 131, 380 S.E.2d at 10 (finding that the exception

generally requires a determination that "the error clearly had

an effect upon the outcome of the case"). These principles

govern our application of the "ends of justice" exception in all

claims on appeal, including those based on due process grounds.

See Jones v. Commonwealth, 29 Va. App. 503, 520-21, 513 S.E.2d

431, 440 (1999) (declining to invoke the exception where

appellant did not present his claim that due process required

the withdrawal of his guilty pleas to the trial court); Tickle

v. Commonwealth, 11 Va. App. 558, 563, 400 S.E.2d 534, 537

(1991) (finding that the ends of justice did not require

consideration of whether prosecutor's conduct violated the

defendant's due process rights); see also Moore v. Commonwealth,

259 Va. 405, 411 n.4, 527 S.E.2d 415, 419 n.4 (2000) (finding

defendant's contention that the Commonwealth's failure to notify

juvenile's biological father of initiation of juvenile court

proceedings denied him due process barred by Rule 5:25);

Overhead Door Co. of Norfolk and Hartford Ins. Co. v. Lewis, 29

Va. App. 52, 61-62, 509 S.E.2d 535, 539-40 (1999) (finding

employer's due process objection to inclusion of a commissioner

in the resolution of workers' compensation matter who did not

hear oral argument barred by Rule 5A:18).

- 41 -
 MMCA has not affirmatively demonstrated that the trial

judge's consideration of the evidence from the equitable

distribution hearing "clearly had an effect upon the outcome of

the case." Brown, 8 Va. App. at 131, 380 S.E.2d at 10. Because

it failed to produce on appeal the evidence it claimed the judge

erroneously considered, we cannot perform the necessary calculus

to determine whether the error was clear, substantial and

material. See Jenkins v. Winchester Dep't of Soc. Servs., 12

Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991) (holding that

appellant's burden includes providing "a record which [sic]

substantiates the claim of error"). While MMCA makes general

reference to the type of evidence it contends the trial court

improperly considered, 9 without the specific testimony before us,

we can only speculate as to whether, and to what extent, the

trial judge's consideration of the evidence from the equitable

distribution hearing, viewed together with the evidence

presented at the show cause hearing, affected her ruling. The

9
MMCA included opposing counsel's references to Ms.
Cherry's testimony from the previous hearing that she had not
received support from either Mr. Cherry or MMCA since June 2000,
that Mr. Cherry solicits business for MMCA around the world, and
that he controls MMCA, as well as the court's statement that, in
making her ruling, she "also considered the evidence received
during the equitable distribution case about MMCA" and "also
rel[ied] upon the evidence that [she] heard during the equitable
distribution case regarding . . . Mr. Cherry." We find that
"also considering and relying" upon evidence falls short of
proving that the improper admission of evidence, in fact,
resulted in a different outcome or that a "miscarriage of
justice has occurred."

- 42 -
inadequacy of MMCA's reliance on general references is

underscored by the fact that the unchallenged evidence from the

show cause hearing tends to support the court's ruling,

suggesting that the challenged evidence was not material. 10 In

sum, given the record before us, we presume the trial court to

be correct. See Lawrence v. Nelson, 200 Va. 597, 599, 106

S.E.2d 618, 620 (1959) (holding that where appellant has not

made the evidence on which a decree is based part of

10
At the show cause hearing, Robert Puglisi, MMCA's sole
witness and an MMCA shareholder, acknowledged that MMCA had
approved the response to the income deduction order filed on
September 1, 2000, which stated that "Mr. Cherry instructed
[MMCA] not to make any further payments of salary or any other
amounts to him. Mr. Cherry is still an employee of [MMCA]."
The trial judge could reasonably infer that MMCA complied with
this instruction to avoid the income deduction order and not, as
Mr. Puglisi testified, because Mr. Cherry's contributions to the
company became insignificant. See Long v. Commonwealth, 8 Va.
App. 194, 199, 379 S.E.2d 473, 476 (1989) (holding that the
credibility of a witness and the inferences to be drawn from
proven facts are matters solely for the fact finder's
determination). Additionally, Puglisi testified that Mr. Cherry
is co-founder and majority shareholder of MMCA, that some
clients choose MMCA based on Mr. Cherry's reputation, that Mr.
Cherry may have clients that he solicits, that he has marketing
responsibilities, and that the decision to stop paying salary to
Mr. Cherry was made on July 17, 2000, just before the income
deduction order became effective. Based on the foregoing
evidence, the trial judge could reasonably infer that Mr. Cherry
performed work for MMCA and that MMCA continued to be liable to
Mr. Cherry at the time of the income deduction order. Cf. Po
River Water and Sewer Co. v. Indian Acres Club of Thornburg, 255
Va. 108, 114, 295 S.E.2d 478, 482 (1998) ("equity will effect a
'contract implied in law,' requiring one who accepts and
receives the services of another to make reasonable compensation
for those services").

- 43 -
the record on appeal, it is impossible to pass on certain issues

and the decision of the trial court is presumed to be correct).

Because MMCA failed, without good cause, to object to the

court's use of evidence from the prior proceeding and has not

proven that a manifest injustice resulted, we will not consider

the merits of this argument on appeal.

B. Sufficiency of the Evidence

MMCA also contends that the trial court erred in its

finding that MMCA owed a debt to Mr. Cherry. Our standard of

review requires that we presume the judgment of the trial court

to be correct, Broom v. Broom, 15 Va. App. 497, 504, 425 S.E.2d

90, 94 (1992), and that we sustain its finding unless it is

plainly wrong or without evidence to support it. Dodge v.

Dodge, 2 Va. App. 238, 242, 343 S.E.2d 363, 365 (1986). MMCA

bears the burden of proving that the evidence did not justify

the conclusion that MMCA owed a debt to Mr. Cherry. See Carter

v. Thornhill, 19 Va. App. 501, 509, 453 S.E.2d 295, 300 (1995).

MMCA's burden includes presentation of a record that

demonstrates that the decision of the trial court was clearly

erroneous or unsupported by the record. Justis v. Young, 202

Va. 631, 632, 119 S.E.2d 255, 256-57 (1961); Jenkins, 12 Va.

App. at 1185, 409 S.E.2d at 20; Steinberg v. Steinberg, 11 Va.

App. 323, 326, 398 S.E.2d 507, 508 (1990); Kaufman v. Kaufman, 7

Va. App. 488, 499, 375 S.E.2d 374, 380 (1988). "If the

- 44 -
appellant fails to do this, the judgment will be affirmed."

Justis, 202 Va. at 632, 119 S.E.2d at 257.

The appellant must present to the appellate court all the

evidence considered by the trial judge, including evidence that

may have been considered improperly but without objection. The

Supreme Court has mandated that we consider such evidence,

regardless of our opinion of its trustworthiness, as properly

before the trial court in our review of the sufficiency of the

evidence. Commonwealth v. Jenkins, 255 Va. 516, 522, 499 S.E.2d

263, 266 (1998) ("Since the handwritten notation on the

discharge summary was received without objection as evidence in

the case, the Court of Appeals erred in disregarding that

portion of the exhibit in reviewing the sufficiency of the

evidence."). Therefore, in reviewing the sufficiency of the

evidence in this case, we must take into account the evidence

from the equitable distribution hearing.

As noted earlier, MMCA has not met its burden of producing

the challenged evidence for our review on appeal. Without

reviewing that evidence, we cannot say that the evidence before

the trial judge was insufficient as a matter of law to support

her finding. Therefore, we affirm her decision on this issue.

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 C. Due Process 11

MMCA's claim that the trial court violated its due process

rights because it lacked reasonable notice that its financial

interests were at stake at the show cause hearing is without

merit. The trial court notified MMCA that it could issue a

money judgment against it twice. First, the trial court issued

an income deduction order, which, pursuant to Code

§ 20-79.3(11), specifically provided that MMCA "shall be liable

for payments which [it] fails to withhold or mail." Second, we

have previously held that a trial court may issue a money

judgment on a rule to show cause. See Shoup v. Shoup, 31 Va.

App. 621, 627-28, 525 S.E.2d 61, 64-65 (2000) (rejecting wife's

contention that trial court lacked authority to order wife to

pay husband $46,154 plus interest, at a hearing on a rule to

show case why she should not be held in contempt for failure to

comply with the parties' agreement, where she was not found in

contempt). MMCA was properly served with the rule to show cause

and was chargeable with the knowledge that under Virginia law

its financial interests were at stake.

Likewise, we find no merit in its contention that the trial

court, at the show cause hearing, improperly denied its right to

a jury trial and its right to cross-examine evidence against

11
As discussed in Section I of this opinion, we do not find
that MMCA's due process rights were affected by the denial of
its motion to intervene. Therefore, we do not address that

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it. 12 It is uncontested that MMCA participated as a party in the

show cause hearing. At no time during the hearing did MMCA

request, or make an effort to implement its rights to cross-

examination or demand a jury trial.

D. Entry of Judgment on Rule to Show Cause

MMCA also argues, for the first time in its reply brief,

that the trial court had no legal basis to enter judgment

against it to enforce the terms of the income deduction order in

the context of a contempt hearing on the rule to show cause.

Because this issue was not presented below, 13 we do not consider

it on appeal.

For the foregoing reasons, we affirm the decision of the

trial court.

Affirmed.

claim here.
12
MMCA's argument that it could not cross-examine the
evidence from the equitable distribution hearing is discussed in
Section II(A) of this opinion.
13
At oral argument, MMCA maintained that it had preserved
this objection in its Memorandum of Law dated November 13, 2000.
However, that Memorandum argued only that "there is no legal
basis for holding MMCA in contempt," because "the specific
elements and level of proof required for MMCA to be held in
contempt have not been shown." This claim is manifestly
different from the one presented on appeal that the trial court
lacked authority to enter a money judgment against MMCA on the
basis of a rule to show cause.

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Benton, J., dissenting.

M. Morgan Cherry & Associates, Ltd., a Virginia

corporation, was not a party to the divorce proceedings between

Natalie W. Cherry and her husband, Max Morgan Cherry, III. Yet,

in a hearing to determine whether the corporation violated an

income deduction order, which was entered in the divorce

proceeding, the trial judge judicially recognized facts that

apparently were proved in the equitable distribution phase of

the divorce proceeding. Based substantially on those facts, the

judge entered a money judgment against the corporation for

violating the income deduction order. I would hold that the

judge committed reversible error.

"The general rule is that the court will
not travel outside the record of the case
before it in order to take notice of the
proceedings in another case, even between
the same parties and in the same court,
unless the proceedings are put in evidence.
The reason for the rule is that the decision
of a cause must depend upon the evidence
introduced. If the courts should recognize
judicially facts adjudicated in another
case, it makes those facts, though
unsupported by evidence in the case at hand,
conclusive against the opposing party; while
if they had been properly introduced they
might have been met and overcome by him."

Bernau v. Nealon, 219 Va. 1039, 1043, 254 S.E.2d 82, 85 (1979)

(citation omitted).

The record establishes that the managing principal officer,

who is one of the three shareholders of the corporation, was the

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sole witness at the hearing from which this appeal arises. He

testified that in February 2000, he had a discussion with the

husband about his decreased participation in the corporation's

business. He told the husband "that the drop in his hourly

contribution was significantly impacting the company and . . .

that it wasn't quite fair that the compensation he was receiving

was based on . . . 1997, 1998 involvement." In July 2000, he

again discussed with the husband the lack of justification for

paying the husband when "no income [was] coming from [the

husband]." At that time, the husband had only 100 billable

hours for all of the year 2000. Based on those discussions, the

husband agreed in July 2000 that the corporation should stop

paying his salary. The corporation did so on July 17. The

managing principal officer testified that the husband continues

to be one of the three shareholders of the corporation and is an

inactive, unpaid employee.

In September 2000, which was seven months after the

managing principal officer had a confrontation with the husband

about his unproductivity, the corporation first received notice

of the income deduction order. The corporation promptly filed

in the circuit court its response that it "has made no payments

of salary or any other amounts to [husband] since July 17,

2000." In response to questions from the wife's attorney, the

managing principal officer was clear that the husband was not

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participating in the affairs of the corporation. He testified

as follows:

Q And sometimes [the husband] is a director
of operations and does marketing and
business management and so forth, too,
doesn't he?

A He has, yes, in the past.

Q And the operations that are the source of
revenue for [the corporation] are
investigations, are they not?

A Yes, sir.

Q And [the husband] conducts those
investigations, doesn't he?

A He has in the past.

Q And in fact [the husband] is [the
corporation's] primary investigator, isn't
he?

A No, that's not true.

* * * * * * *

Q But nobody has ever compelled him to go
out and work, have they?

A We have in the past tried to get him to
-- as a matter of fact, this summer, get
him to work cases for us and he just hasn't
been able to do it. I don't know the
reasons why. I've retained the
responsibilities for those matters and Mr.
Burn has also for those matters.

It would be difficult to say we could
force him to do work when he's not
physically here. I believe I haven't seen
him for five months or more.

* * * * * * *

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 Q So he's in charge of marketing and
representing the corporation at trade shows
and soliciting clients?

A He's not in charge of soliciting clients.
He may have clients that he solicits. He
has marketing responsibilities as we all do.
This is a small company; I don't know if you
understand that.

The only way that it functions is the
output of all of its parties and when one
party doesn't function, it puts more burden
on the other parties and that's what the
situation is here and that's what led us,
you know, to the conclusion that paying him
a salary was not justified.

The managing principal officer further testified that the

corporation owed no accrued salary to the husband, held no money

that was his, and provided to him no other benefits. He

testified that the minority owners had no power "to fire" the

husband, who owned a majority of the corporation's stock. Their

only "options or alternatives were to . . . dissolve or separate

[themselves] from the company." He testified that the coming

December would be the end of the fiscal year and that decisions

would then be made about bonuses. He also testified that the

corporation has "never had a dividend." No other witness

testified, and no other documentary evidence was presented at

the hearing.

In argument to the trial judge at the conclusion of that

testimony, the corporation's attorney asserted that "on the

evidence that's before your Honor here today, the rule to show

cause should be dismissed." The judge took the matter under
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advisement for two weeks. At a later hearing, which consisted

only of further argument by the attorneys, the judge ruled from

the bench. In pertinent part, she stated the following:

Well, I recall all the evidence that was
adduced at the hearing last time, primarily
through [the managing principal officer],
but I have also considered the evidence that
was received during the equitable
distribution case about [the corporation],
the nature of the business, the kind of work
that it does, its ownership, its structure,
and I also rely upon the evidence that I
heard during the equitable distribution case
regarding the way [the husband] operates
with respect to his multiple identities,
passports, et. cetera.

* * * * * * *

So today, pursuant to the income deduction
order that was entered by this Court on
August 28th of 2000, I am entering a
judgment against [the corporation] in the
amount of $9,900 for its failure to make
payments for September 1, October 1, and
November 1 of the year 2000.

(Emphasis added.) Immediately at the conclusion of the hearing,

the judge entered an "Order Pertaining to Rule Against MMCA,"

which incorporated the judge's "bench ruling" and "awarded a

judgment against [the corporation] in the . . . amount of

$9,900," plus interest, in satisfaction of the income deduction

order.

"[I]t was plain error for [the trial judge] to go outside

the record to find another reason to support [her] decision."

Russell County School Bd. v. Anderson, 238 Va. 372, 385, 384

S.E.2d 598, 605 (1989). Moreover, this is not a case such as
- 52 -
Hansel v. Commonwealth, 118 Va. 803, 808, 88 S.E. 166, 167

(1916), where the trial judge "permit[ted] the evidence . . .

given in the [other] case . . . to be read in evidence" in this

case. See also Luck v. Commonwealth, 32 Va. App. 827, 834, 531

S.E.2d 41, 44 (2000) (noting that the trial judge "made the

letter part of the file and the record"). Neither party offered

as evidence any matters proved on the record in the equitable

distribution phase of the divorce proceeding.

I agree with the majority that the corporation's attorney

might have better stated his objection at trial or in response

to the order. I believe, however, that the attorney's closing

argument, which informed the judge that "on the evidence before"

her the evidence was insufficient to prove the corporation owed

income to the husband, adequately preserved for review both the

objection to the judge's reliance on evidence not in the record

and the objection to insufficiency of the evidence. "The

primary function of Rule 5A:18 is to alert the trial judge to

possible error so that the judge may consider the issue

intelligently and take any corrective actions necessary to avoid

unnecessary appeals, reversals and mistrials." Martin v.

Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992).

The contemporaneous objection requirement may be satisfied by an

attorney's closing argument that touches upon the matter at

issue. Taylor v. Commonwealth, 28 Va. App. 498, 504, 507 S.E.2d

89, 91 (1998); Fortune v. Commonwealth, 14 Va. App. 225, 228,
- 53 -
416 S.E.2d 25, 27 (1992); Harris v. Commonwealth, 13 Va. App.

593, 596, 413 S.E.2d 354, 355-56 (1992). That was done in this

case. Moreover, the judge, who had tried the divorce case and

had denied the corporation's motion to intervene in the divorce

case, knew the corporation was not a party to the divorce

proceeding. The attorney's argument, which directed the judge's

attention to "the evidence that's before Your Honor here today,"

clearly put the judge on notice that she was limited to

considering "the evidence . . . before" her at the contempt

proceeding. I would hold, therefore, that the attorney

preserved for appeal both the issues of insufficiency of the

evidence and the limitation of evidence to that which was

contained in the record.

In any event, I would hold that to attain the ends of

justice we should consider this issue of the judge's reliance on

facts not in evidence. See Rule 5A:18. "'An appellate court

may . . . take cognizance of errors though not assigned when

they . . . are fundamental.'" Cooper v. Commonwealth, 205 Va.

883, 889, 140 S.E.2d 688, 693 (1963) (citation omitted). The

judge's "plain error" deprived the corporation of a fundamental

right because the only evidence before the trial judge in this

limited proceeding was the uncontradicted testimony of the

managing principal officer that the corporation did not owe to

the husband income, as defined in the income deduction order and

by Code § 63.1-250. The evidence before the judge did not
- 54 -
contain a scintilla of proof concerning the evidence previously

given in the equitable distribution phase of the divorce

proceeding. Cf. Hansel, 118 Va. at 808, 88 S.E. at 167 (noting

that the trial judge permitted the evidence from the other case

"to be read in evidence").

Moreover, the corporation had no opportunity to know,

challenge, or rebut evidence from the prior hearings that the

wife or the judge considered significant. The corporation,

therefore, was denied the essence of due process. See Goldberg

v. Kelly, 397 U.S. 254, 267-71 (1970) (holding that notice and

an effective opportunity to defend by confronting and

cross-examining adverse witnesses are components of the right to

due process); Browning-Ferris Industries v. Kelco Disposal, 492

U.S. 257, 285 (1989) (holding that "a corporation is entitled to

due process . . . of law"). "The denial of due process involves

the denial of a fundamental constitutional right and falls

within the ambit of Rule 5A:18 to attain the ends of justice."

Allen v. Commonwealth, 36 Va. App. 334, 338-39, 549 S.E.2d 652,

654 (2001). Applying these principles, we may invoke the ends

of justice exception in a case such as here, where the due

process violation results in a miscarriage of justice. See id.

at 339, 549 S.E.2d at 654. A miscarriage of justice is apparent

in this case because the evidence before the judge affirmatively

proved that the corporation owed no income to the husband.

- 55 -
 I would hold further that the judge's "plain error" in

considering evidence outside the record was not harmless. The

trial judge generally stated that she also was relying on

evidence she heard "during the equitable distribution case,

about [the corporation], the nature of the business, the kind of

work . . . it does, its ownership, its structure, and . . .

[about] the way [the husband] operates with respect to his

multiple identities, passports, et. cetera." This error was

significant because it impacted upon the lack of credit the

judge gave to the unimpeached testimony of the corporation's

managing officer.

While a jury, or a judge trying a case
without a jury, are the judges of the weight
of the testimony and the credibility of
witnesses, they may not arbitrarily
disregard uncontradicted evidence of
unimpeached witnesses which is not
inherently incredible and not inconsistent
with the facts appearing in the record, even
though such witnesses are interested in the
outcome of the case.

Here [the] evidence was uncontradicted;
it was not inherently incredible; and it
constituted the only facts appearing in the
record. Even . . . [if] the trial judge did
not believe [the] testimony, [her] mere
belief or speculation is not sufficient to
disregard the evidence.

Hodge v. American Family Life, 213 Va. 30, 31-32, 189 S.E.2d

351, 353 (1972). See also Cheatham v. Gregory, 227 Va. 1, 4-5,

313 S.E.2d 368, 370 (1984). The judgment was substantially

- 56 -
swayed by the judge's erroneous consideration of facts not in

evidence.

In its sufficiency analysis, the majority opinion operates

upon the faulty premises that an argument by an attorney to the

judge concerning the incidents of the case is evidence and that

the judge's notice of facts adjudicated in another proceeding

constitutes evidence. Those premises are contrary to well

established principles. See Bernau, 219 Va. at 1041, 254 S.E.2d

at 84 (holding that "[i]ndividual and extrajudicial knowledge on

the part of a judge will not dispense with proof of facts not

judicially cognizable, and cannot be resorted to for the purpose

of supplementing the record"); Waye v. Commonwealth, 219 Va.

683, 691, 251 S.E.2d 202, 206 (1979) (approving the judge's

instruction to "the jury that the [attorney's] statement was not

evidence"); Cook v. Hayden, 183 Va. 203, 226, 31 S.E.2d 625, 634

(1944) (holding "that the statements [of the attorney concerning

facts to be proved] were not evidence"); Cummings v.

Commonwealth, 24 Va. App. 248, 251-52, 481 S.E.2d 493, 494

(1997) (holding that the attorney's discussion with the judge

about facts to be proved is not evidence). Relying upon these

faulty premises, the majority misapplies Commonwealth v.

Jenkins, 255 Va. 516, 499 S.E.2d 263 (1998). In Jenkins, the

Supreme Court held that in reviewing an appeal for sufficiency

of the evidence, "the reviewing court must consider all evidence

- 57 -
properly admitted at trial." 255 Va. at 522, 499 S.E.2d at 266

(1998) (emphasis added).

The facts of this case reveal that the judge and the wife's

attorney referred to testimony apparently made at the earlier

equitable distribution phase of the divorce proceeding to which

the corporation was not a party. Neither the judge's nor the

attorney's statements are evidence. The wife's attorney neither

proffered as evidence nor read into evidence the record from the

equitable distribution phase of the divorce proceeding.

Although it is the responsibility of the corporation, as

appellant, to present this Court with a full record, that

responsibility does not include presenting documents not in

evidence. See Bernau, 219 Va. at 1043, 254 S.E.2d at 85. The

record before us clearly establishes that evidence from the

equitable distribution proceeding in the divorce case was not

admitted into the record of this hearing. Accordingly, on

review for sufficiency of the evidence the majority improperly

considered as evidence statements made by the wife's attorney

and the judge.

For these reasons, I would hold that the trial judge erred

in judicially noticing facts from a proceeding in which the

corporation was not a party. This error substantially affected

the ruling. I would, therefore, reverse the judgment and remand

for rehearing.

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