*1 ASSOCIATES, LTD., M. MORGAN CHERRY & Natalie W. CHERRY.
Record No. 2854-00-4. Appeals Virginia, Court of
Richmond. Aug. 2002. *3 (Jackson Johnson, P.C., on III & Cаmpbell, Vernon W. briefs), Vienna, appellant. for (Marcia Maddox, Vienna; Law Office
Michael C. Miller M. Miller, Maddox, P.C., brief), for appellee. & on Cole WILLIS, FITZPATRICK, C.J., BENTON, Present: BUMGARDNER, ELDER, BRAY, ANNUNZIATA, HUMPHREYS, AGEE, FRANK, CLEMENTS JJ. A EN
UPON REHEARING BANC ANNUNZIATA, Judge. a en banc rehearing
This comes before the Court on matter 22, 2002. panel January from a decision of a divided rendered judgment the trial award of a panel The affirmed court’s (MMCA) in the Cherry M. Associates against Morgan & of a $9,900. judgment The was based on a violation amount order, 20-79.1, directing § pursuant court issued to Code M. disposable income of pay MMCA to withhold and out of MMCA, Morgan Cherry, employee and shareholder Natalie due the spousal support appellee, deducted amount *4 violated Cherry. The trial court found that MMCA had W. it. judgment against the income order entered deduction and reasons, For the we affirm. following
BACKGROUND light in the we state the evidence principles, Under familiar prevailing below. Cherry, most to Ms. favorable Richardson, Richardson 341, 349, Va.App.
726, 730 is a Virginia corporation pro- MMCA private investigation Cherry vides services. Mr. owns 60% of outstanding stock of MMCA. MMCA’s other two share- holders, Puglisi Robert M. Byrne, and Thomas G. each own Puglisi 20% of the stock. Byrne and are not related to Mr. Cherry. Cherry
Ms. filed her bill complaint for divorce against Cherry Mr. on January parties 2000. The into a entered Pendente Lite Support Consent 8, 2000, May Order on which provided that Mr. Cherry $3,300 pay Cherry would Ms. per month in spousal support. Cherry Mr. making spousal ceased support payments 17, 2000, in July July 2000. On Cherry Mr. instructed MMCA to stop paying salary him a they and complied. August
On Cherry’s at Ms. request, the court issued an income deduction order pursuant § to Code 20-79.1.
The income deduction order identified MMCA as “employ- er” required MMCA to withhold pay out of the disposable income of Mr. Cherry a deducted amount for spousal support for Cherry. Ms. It also provided that MMCA “shall payments be liable for which [it] fails to withhold or mail as specified the Order.” The amount of the deduction $3,300 month, was set at per subject to a limitation based on Cherry’s Mr. disposable Thus, income. depending upon the amount of disposable paid income it to Mr. Cherry, MMCA would be obligated $3,300 payments up make per month. September
On Cherry Ms. filed a motion for satisfaction of judgment by defendant’s interest in corpo- his motion, rate By entities. Cherry Ms. asked the court to require MMCA to directly satisfy, in part, whole or judg- ments and other obligations of Mr. Cherry the case. The court denied the motion without prejudice, holding that it could not be heard on an day. abbreviated motions Cherry
Ms. proceeded to an hearing before the trial court on October 2000. MMCA filed a *5 discovery requests protect against to intervene to itself motion Cherry sought that Ms. Cherry. It claimed by served Ms. compa- to relating information and confidential privileged motion, not and MMCA did ny. The trial court denied equitable distribu- hearing. part in the As participate require court asked that the hearing, Cherry again tion Ms. Cherry. Mr. The judgments against entered pay MMCA holding that request prejudice, court without again denied pursue a lawsuit to the relief Cherry separate Ms. had to file sought. sponte the trial court also sua issued a rule hearing,
At the contempt not held in why to show cause MMCA should be The the income deduction order. comply its failure to with 3, 2000 for the rule trial court set a return date of November hearing. cause to show on No- hearing cause
The trial court conducted the show proved that Mr. November 17. The evidence vember 3 and him salary stop paying instructed MMCA to Cherry had but that Mr. complied, that MMCA July on of MMCA. Cherry employee continued as an continuing liability that MMCA had a Cherry Ms. contended relied, testimony of on the Cherry. part, to Mr. She Puglisi acknowledged witness. Puglisi, MMCA’s sole income deduction to the approved response MMCA had stated that “Mr. which Seрtember order filed on any payments further not to make Cherry instructed [MMCA] Cherry to him. Mr. is still any or other amounts salary Further, Mr. testified that Puglisi employee [MMCA].” compa- majority shareholder Cherry is co-founder and Cherry’s based on Mr. clients choose MMCA ny, that some solicits, clients that he Cherry may have reputation, that Mr. marketing responsibilities. has and that he throughout times three Cherry for Ms. indicated Counsel argument, basing her that she proceeding the show cause from the Cherry of Ms. testimony on the part, transcript No of evidence from the hearing.1 introduced, hearing was however. equitable distribution object counsel and did not by MMCA did refеrences Cherry’s the evidence referred to Ms. counsel on produce appeal.
Ostensibly prior from the treating the referenced evidence hearing her, specifically as before the trial court judge stated that, MMCA, she entering judgment against relying it, alia, upon part, including, regarding inter the evidence business, kind of “the nature work that it [MMCA’s] does, structure, way its ... Mr. ownership, Cherry and identities, with his operates respect multiple passports, to et. object, process cetera.” MMCA failed on due or other grounds, the court’s consideration of this evidence.
The trial judge concluded that continues to “MMCA be liable to Max his Cherry salary paying for whether MMCA is it not ... obligation or and inasmuch as it’s an that MMCA owes to Mr. Cherry, obligation it’s that MMCA under this Court’s income deduction order owes to Cherry.” Ms. She did contempt, not find MMCA in judgment against but entered $9,900, for MMCA the court representing the amount deemed from Cherry due MMCA to Ms. under income deduction October, for September, order the months of and November objected 2000. MMCA judgment, the amount of the but registered objections. no other entry
MMCA now the trial appeals judgment court’s it. against First, Cherry’s testimony
1. on noted November she Ms. that she had support Cherry received either not from Mr. or MMCAsince June 2000. datе, Again Cherry’s on testimony regard- counsel referred to Ms. ing profits Cherry generates methods which Mr. for MMCA: Cherry] goes gets "[Mr. around United States and the world and he business They then he has his network of do the subcontractors business. billing Cherry.” don’t need Mr. from She also stated that MMCA Cherry’s Finally, testimony. did controvert Ms. at the second hearing Cherry’s of the session on November Ms. counsel reminded Cherry court that Ms. had testified at the hearing Cherry Cherry that Mr. testily controlled MMCA.Ms. did not hearing. show cause
ANALYSIS I. Threshold Issues issues three threshold Cherry presented Ms. Although moot.2 address consideration, of them is We our one First, that we lack Cherry Ms. maintains issues. remaining dis MMCA’s claims. We jurisdiction to hear subject matter 17.1-405, § to Code jurisdiction pursuant have agree. We to the Court states, may appeal “[a]ny aggrieved party which matter ... relations [a]ny from ... domestic Appeals the court issued 20.” Because Title 16.1 or Title arising under 20-79.1, § this to Code pursuant order the income deduction Title arising matter under relations case involves domestic jurisdiction. comes within our appeal that MMCA’s Second, Cherry Ms. contends divorce to intervene of its motion trial court’s denial *7 we this issue because need not address untimely. case is We to inter- of its motion appeal not the denial find MMCA did vene.
II. Appeаl MMCA’s (1) consid- improperly trial court that: MMCA contends (2) the evidence proceeding; from an earlier ered evidence trial court’s support as a matter of law to was insufficient (3) the trial Cherry; to Mr. that MMCA owed a debt finding (4) law; process to due right court violated MMCA’s rule to judgment on a authority to enter the trial court lacked allegations seriatim. appellant’s consider show cause. We 22, appeal of the mooted MMCA’s December 2000 2. Our order dated 1, supersedeas We denying a bond. 2000 order trial court’s December pending a bond was issued judgment, suspended execution of appeal.
701 Proсeeding A. Evidence Previous Consideration of from appeal the first time on that the alleges MMCA equitable trial court relied on evidence from the improperly hearing reaching judgment distribution its decision to enter Therefore, claim barred. against procedurally MMCA. this is Commonwealth, 5A:18; 803, Rule also Hansel v. 118 Va. see Commonwealth, 166, (1916); 88 S.E. 167 Hess v. 17 cf. 738, 739-44, 441 30-33 Va.App. trial, object process
At on due or other MMCA did Ms. grounds to the court’s consideration of the evidence when Cherry testimony directed the to from the earlier or the trial she took it into account. hearing when stated properly objection closing by Nor did MMCA rаise the that “on evidence that’s before Your Honor here stating today, the rule to show should be cause dismissed.” See Commonwealth, Va.App. Fortune v. 416 S.E.2d (1992) (holding that a closing argument satisfies the contemporaneous objection only rule where trial court the issue” opportunity “considered and “had take correc action”). tive
Finally, object does not fit within MMCA’s failure either the or “good justice” exceptions cause” “ends of to the First, rule. opportuni because MMCA failed to utilize several objection,3 “good ties to make its we find no cause” for MMCA’s failure to raise the issue at trial. Luck v. See (2000) Commonwealth, Va.App. (holding that where “the opportunity defendant had so,” object preserved). but elected not to do his claim is not Second, justice” require the “ends of do not us to claim that consid judge improperly consider MMCA’s the trial proceeding ered evidence from the be- *8 making ruling, 3. Before its the trial court described the evidence from considered, hearing plain- she then asked addition, prepare judgment tiffs counsel a order in her favor. In opposing support argu- counsel made three references to it in of her ment. 702
cause not a present appeal MMCA did reсord on that affirma tively demonstrates that “clearly such consideration had an upon effect the outcome of the case.” Brown v. Common wealth, 126, 131, 8, (1989); Va.App. 8 380 10 S.E.2d see Commonwealth, 215, 221, Redman v. Va.App. 25 487 S.E.2d (1997) (“In 269, 272 order to avail of exception, oneself affirmatively jus defendant must show that a of miscarriage occurred, tice has not that a miscarriage might have oc Commonwealth, (citing 433, 436, curred.” Mounce v. 4 Va.App. 742, (1987))); Commonwealth, 357 S.E.2d 744 see also Jones v. 503, (1999). 520-21, 431, 29 Va.App. 513 S.E.2d 440 Without the evidence MMCA judge erroneously claimed the consid ered, we cannot perform necessary calculus to determine clear, whether the error was substantial and material. See Servs., 1178, v. 12 Dep’t Va.App. Jenkins Winchester Soc. (1991). 1185, 16, 409 20 S.E.2d failed, cause, object good
Because MMCA without to the prior proceeding court’s use of evidence from the and has not resulted, proven injustice that a manifest we will not consider the merits of argument appeal. this on
B. the Evidence Sufficiency of also MMCA contends the trial court erred finding Cherry. that MMCA owed a debt to Mr. stan Our dard of review that we requires presume judgment Broom, correct, 497, 504, Va.App. trial court to be Broom v. 15 90, (1992), 425 94 finding S.E.2d and that we sustain its unless plainly wrong support it is or without evidence to it. v. Dodge 238, 242, 2 Dodge, Va.App. 343 S.E.2d 365 Furthermore, bears proving MMCA the burden justify the conclusion that MMCA owed a evidence did Mr. of a Cherry, including presentation debt to record that clearly demonstrates that the decision of the trial court was Young, erroneous or the record. Justis v. 202 unsupported (1961); Jenkins, Va. 119 S.E.2d 256-57 20; at v. Va.App. Steinberg Steinberg, (1990); Va.App. Kaufman
703
(1988).
“If
380
Kaufman, Va.App.
7
375 S.E.2d
this,
will
affirmed.”
judgment
fails to do
be
appellant
Justis,
appellant
202
at
C. Due Process4 We find no merit in claim MMCA’s that the trial court process violated its rights due because it lacked reasonable notice that financial its interests were at stake at the show cause hearing. The trial court twice notified MMCA that it First, a money judgment against could issue it. the trial court order, which, pursuant issued income deduction to Code 20-79.3(11), § specifically provided that “shall be lia MMCA Second, ble for which payments fails to withhold or mail.” [it] we have previously may money held that a trial court issue a judgment on a Shoup rule to show cause. See Shoup, 621, 627-28, Va.App. 64-65 MMCA was properly with charge served the rule to show cause and was that, law, able with the knowledge Virginia under its financial interests were at stake.
Likewise, we find nо merit in contention that MMCA’s court, trial hearing, improperly the show cause its denied opinion, 4. As discussed in Section I of this we do not find that MMCA Therefore, appealed the denial of its motion to intervene. we do not process. address the claim that the denial violated due right to a trial and its to cross-examine evidence right jury participated it.5 It is uncontested that MMCA as a against during At no time hearing. the show cause implement or an effort to hearing request, did MMCA make right, jury its to cross-examine or a trial.
D. Entry Judgment on Rule to Show Cause brief, argued, reply MMCA also for the first time *10 judgment against the trial court no basis to entеr it legal had in to enforce the terms of the income deduction order of a on the rule to show cause. contempt hearing context below, presented Because this issue was not we do not consid- appeal. er it on Rule 5A:18. reasons,
For the we affirm the trial court’s deci- foregoing sion.
Affirmed.
BENTON, FITZPATRICK, with whom Judge., Chief AGEE, BRAY, BUMGARDNER, JJ., join, and Judge, dissenting. Associates, Ltd.,
M. Morgan Cherry Virginia corpora- & tion, was not a to the divorce between proceedings husband, Cherry, Max III. Chérry Morgan Natalie W. and her Yet, in hearings November 2000 to determine whether the order, corporation violated an income deduction which was judicially in proceeding, judge entered the divorce the trial recognized apparently proved equitable facts that were phase proceeding. distribution of the divorce Based substan- facts, tially money judgment on those entered a against violating the income deduction order. would hold that committed reversible error. general
“The rule is that the court will not travel outside it in to take notice of the the record the case before order 11(A) opinion, we 5. For reasons discussed in Section of this do argument the evidence address MMCA’s that it could not cross-examine hearing. from case, parties the same even between in аnother proceedings put are court, the proceedings unless in the same of a that the decision for the rule is The reason evidence. If the evidence introduced. upon the depend cause must in anoth- adjudicated judicially facts recognize courts should facts, unsupported by evi- case, though it makes those er hand, opposing against conclusive in the case dence they introduced they properly if had been while party; by him.” met and overcome have been might (1979) Nealon, 1039, 1043,254 Bernau v. 219 Va. (citation omitted). officer, managing principal that the
The record establishes cоrporation, shareholders who is one of the three appeal arises. hearing from which this the sole witness at the a discussion with February that in he had He testified in the participation corpora- the husband about his decreased drop “that the his He told the husband tion’s business. company significantly impacting contribution was hourly compensation fair that the he was quite ... that it wasn’t July In on ... 1998 involvement.” receiving was based justifica- with the husband the lack again he discussed *11 coming “no income paying [was] tion for the husband when time, only 100 At that the husband had from [the husband].” 2000. on those year hours for all of the Based billable discussions, agrеed July corpora- the husband so on salary. corporation his The did stop paying tion should officer testified July managing principal 17. The stock, continues husband, corporation’s 60% of the who owns and is corporation three shareholders of the to be one inactive, unpaid employee. managing prin- months after the In seven September his unproductivity, the husband about cipal officer confronted notice of the income deduction first received in the circuit court corporation promptly The filed order. salary any or other payments that it “has made no response response 2000.” In July since amounts to [husband] hearing, attorney at the show cause from the wife’s questions was clear that the husband managing principal officer not participating in the corporation. affairs of the He testified as follows:
Q And sometimes is a operations [the husband] director of marketing and does management forth, business and so too, doesn’t he? has,
A yes, He in the past. Q operations And the that are the source of revenue for corporation] investigations, [the are they are not? Yes, A sir.
Q And [the conducts those investigations, husband] doesn’t he?
A He has in past.
Q And in fact [the is corporation’s] primary husband] [the investigаtor, isn’t he? No,
A that’s not true.
sK Í4 Q But nobody has ever compelled work, him to go out and they? have
A We have in past tried to him get to—as a matter of fact, summer, this get him to work cases for us just and he hasn’t been able to do it. I don’t know the reasons why. I’ve retained responsibilities for those matters Mr. Burn has also for those matters.
It say would be difficult to we could him to force do work when he’s not I physically here. believe haven’t seen him for five months or more. v
íH H4 sí4 H4 Q So he’s in charge of marketing and representing the corporation at trade shows and soliciting clients?
A He’s not charge soliciting clients. He have may clients that he solicits. He has marketing responsibilities as *12 we all do. This is a small company; I don’t if you know understand that.
The only way that it functions is the of all of output its parties function, and when one puts doesn’t it more is that’s what the situation parties on the other and burden us, know, that you to the conclusion here and that’s what led salary justified. him a was not paying that the officer further testified managing principal The husband, no salary to the held corporation owed no accrued his, him no other benefits. money provided that was and “to power the owners had no fire” minority He testified that stockhold- majority the husband because the husband was the ... or alternatives were to dissolve or only “options er. Their that separate company.” from the He testified [themselves] coming year the December would be the end fiscal also that decisions would then be made about bonuses. He that “never a No testified the has had dividend.” testified, documentary other witness and no other evidence presented at the hearing. In trial at the conclusion of that argument judge the testimony, corporation’s attorney the that “on the asserted your today, evidence that’s before Honor here the rule to show cause should be dismissed.” The took the matter under hеaring, advisement for two weeks. At a later which consist- only argument by attorneys, ed of further the ruled from the bench. In pertinent part, following: she stated the
Well, I recall all the evidence was adduced time, hearing last primarily through managing principal [the officer], but I have also considered evidence that was received during equitable distribution case about [the business, corporation], the nature work kind does, structure, that it I ownership, rely its also upon the evidence during heard distri- bution regarding way operates case with [the husband] identities, respect multiple passports, to his et. cetera.
:j« sfc % v todаy, pursuant So to the income deduction order that was 2000,1 am August entering entered this Court on 28th of $9,900 judgment against corporation] the amount of [the for its payments September failure make October year and November 1 of 2000.
708 added).
(Emphasis Immediately at the conclusion of the hearing, judge the entered an “Order to Rule Pertaining MMCA,” Against which incorporated judge’s the “bench rul- ing” and “awarded a in judgment against corporation] the [the $9,900,” interest, ... amount of in plus satisfaction of the attorney “objected income deduction order. The corporation’s to in grounds open on the stated Court and on the [the order] record herein.” plain judge] go error for trial to
“[I]t [the outside the support record to find another reason to decision.” [her] Anderson, 372, 385, County Russell School Bd. v. 238 Va. 384 598, Moreover, S.E.2d 605 this is not a case such as Commonwealth, Hansel v. 118 Va. 88 S.E. 167 (1916), where the trial judge “permit[ted] the evidence ... ... in given the case to be read evidence” in this [other] Commonwealth, case. also Luck v. Va.App. See 32 (2000) 41, 44 (noting that the trial judge “made the record”). part letter of the file and the Neither party offered any proved as evidence matters on the equitable record the Moreover, phase distribution proceeding. divorce the corporation was not a to the proceeding. divorce concerning
Because no matters the proceeding were offered as evidence in the show cause pro- ceeding, corporation’s attorney the no object. had occasion to Indeed, after by the evidence described above was the proved testimony officer, corporation’s managing principal the trial judge “argument” entertained Al- attorneys. though majority opinion recognizes that references to the extraneous “evidence” first when the attorney, occurred wifе’s during argument, summation made references to the wife’s proceeding divorce testimony, clearly the record establishes that no evidence was then being only offered and the issue before the trial judge import concerned the of the evidence therefore, believe, the show proceeding. cause corporation’s attorney’s closing argument adequately pre- objection judge’s served for review both the to the reliance on objection insufficiency evidence not in the record and judge the evidence. He informed the that “on the evidence was no evidencе to today” that’s before Your Honor here there any monetary obligation to hus- prove owed addition, attorney objection band. In the same on noted final order. primary “The function of Rule 5A:18 is to alert the trial may error so that consider the possible intelligently any necessary issue and take corrective actions unnecessary appeals, avoid reversals and mistrials.” Martin Commonwealth, Va.App. *14 (1992). contemporaneous objection requirement may The be by attorney’s closing argument upon satisfied that touches Commonwealth, the matter at issue. v. 28 Taylor Va.App. 498, 504, 89, Commonwealth, (1998); 507 S.E.2d 91 Fortune v. 225, 228, 25, (1992); 14 27 Va.App. 416 S.E.2d Harris v. Commonwealth, 596, 593, 354, Va.App. 13 413 S.E.2d 355-56 (1992). Moreover, in That was done this case. the who judge, had corporation’s tried the divorce case and had denied the case, motion to intervene in the knew the corporation divorce was not a to the proceeding. attorney’s divorce The argument, which judge’s directed the attention to “the evi- dence that’s Your today,” clearly put before Honor here the judge on notice that considering she was limited to “the ... evidence before” her at show cause I proceeding. the hold, therefore, attorney preserved would that the for appeal both insufficiency the issues of of the evidence and the limita- tion of to that in evidence which was contained the record.
Contrary majority opinion’s justice” the “ends of discus- sion, that, event, in any would hold to attain the ends of justice judge’s we should consider this issue of the reliance on “ in facts not evidence. See Rule 5A:18. ‘An court appellate may ... take cognizance though assigned errors when ” Commonwealth, ... they are fundamental.’ v. 205 Cooper omitted). (1963) (citation 688, Va. 140 S.E.2d 693 The judge’s “plain deprived corporation error” of a funda- judge mental before the trial right only becausе the evidence in proceeding testimony this limited was the uncontradicted managing principal corporation officer that the did not owe income, in the husband as defined the income deduction order 710 § The evidence before by 63.1-250. Code corpora- to which the hearings, only proceeding
November
concerning
proof
not contain scintilla
party,
tion was a
did
given
previously
the evidence
Hansel,
808,
Va. at
proceeding.
of the divorce
phase
Cf.
judge permitted
trial
(noting
at 167
88 S.E.
evidence”).
“to be read
from the other case
evidence
know,
Moreover,
no
corporation
opportunity
had
that the
hearings
the prior
or rebut evidence from
challenge,
corporation,
The
significant.
considered
wife or the
See
therefore,
process.
the essence of due
was denied
1011,
254, 267-71,
1020-
90 S.Ct.
Kelly,
397 U.S.
Goldberg
(1970)
an effective
(holding that notice and
considering evidence relying on that she also was judge generally The trial stated case, thе “during she heard evidence business, of of the the kind about the nature corporation], [the structure, does, and ... [about] ... it its ownership, work multiple to his operates respect with way the [the husband] identities, significant This error was et. cetera.” passports, judge gave the upon it the lack credit impacted because 7H the unimpeached testimony of corporation’s managing officer. jury,
While a or a judge trying a case without a jury, are judges weight testimony and the credibility witnesses, they may arbitrarily disregard uncontra- dicted evidence of unimpeached witnesses which is not inherently incredible and not inconsistent with thе facts record, appearing though even such witnesses are interested in the outcome of the case.
Here uncontradicted; evidence was [the] it was not inher- incredible; ently it constituted the only facts appearing in the record. ... Even the trial judge did not [if] believe testimony, [the] mere speculation [her] belief or is not disregard sufficient to the evidence. v.
Hodge American Family Life, 30, 31-32, 189 213 Va. S.E.2d (1972). 351, 353 See also 1, 4-5, Cheatham v. Gregory, 227 Va. 368, 313 S.E.2d 370 judge’s The decision to enter the judgment was substantially swayed by her erroneous consider ation of facts not evidence.
Additionally, the majority opinion’s sufficiency analysis оp
erates upon
faulty
premises that an argument by an
attorney to
concerning the incidents of the case and
the judge’s notice of
adjudicated
facts
in another proceeding
constitute evidence.
premises
Those
contrary
are
to well
Bernau,
established principles.
See
attorney concerning facts to be proved] evidence”); were not Commonwealth, Cummings 248, 251-52, 24 Va.App. (1997) (holding that the attorney’s discussion *16 with evidence). the judge about to proved facts be is not Relying upon these faulty premises, majority the misapplies (1998), Jenkins, 255 Va. 499 S.E.2d
Commonwealth court to appellate as an holding requiring and misconstrues judge. trial by the matters “considered” all extraneous accept in Jenkins, reviewing that Court held Supreme In the evidence, court reviewing “the of the sufficiency appeal at trial.” 255 admitted properly all evidеnce must consider added). (emphasis at 266 at Va. that, the evidence had case reveal after
The facts of this attorney the wife’s evidentiary hearing, at an been established testimony apparently to argument summation during referred of the divorce phase distribution equitable at the earlier made Neither party. was not corporation to which the proceeding remarks are judge’s nor the bench attorney’s statements as Moreover, attorney proffered neither the wife’s evidence. equitable the record from the nor read into evidence evidence which proceеding upon of the divorce phase distribution responsibility it is the judge Although trial relied. full with a present this Court appellant, as corporation, presenting docu record, not include responsibility that does Bernau, in Va. ments not evidence. See that clearly us establishes at 85. The record before in the proceeding equitable distribution evidence from hearing. record of this not admitted into the divorce case was evidence, the sufficiency of the Accordingly, on review for the record on concludes that majority opinion incorrectly “evidence appeal [from includes argument cоunsel” by hearing] [the wife’s] referred us require I does not trial would hold Jenkins judge. that which was not offered sufficiency analysis in a to consider by made arguments accepted Simply put, into evidence. ruling in a attorney wife’s and statements case. are not evidence from the bench reasons, trial erred I hold that the For these would proceeding in a proved which were noticing facts judicially which were was not a where This at bar. error proceeding in the introduced as evidence also ruling. would the trial court’s substantially affected admitted properly which was the evidence hold *17 insufficient, law, uncontradicted and as a matter of to support Cheatham, 4-5, See judge’s rulings. Va. would, therefore, at 370. I judgment. reverse the
Court of Alexandria. Aug. 2002.