COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Annunziata 

Argued at Alexandria, Virginia 

KENNETH R. FOX 

v. Record No. 0721-97-4 

WENDY R. FOX 

 MEMORANDUM OPINION* BY 

and JUDGE JERE M. H. WILLIS, JR. 

 MARCH 17, 1998 

KENNETH R. FOX 

v. Record No. 1094-97-4 

WENDY R. FOX 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N. A. Kendrick, Judge 

 Steven M. Garver (Cheryl G. Rice; Law Offices 

of Steven M. Garver, on briefs), for 

appellant. 

 Stephen A. Friedman (Denman A. Rucker; 

Joseph, Greenwald & Laake, P.A.; Rucker & 

Rucker, on brief), for appellee. 

 In these consolidated appeals from a final decree granting 

his wife, Wendy R. Fox, a divorce, Dr. Kenneth R. Fox contends 

that the trial court erred (1) by denying him due process of law, 

(2) by proceeding against him without proper service, (3) in 

determining child support, (4) in determining spousal support, 

(5) in determining custody and visitation, (6) in classifying 

marital assets and entering a monetary award thereon, (7) by 

exercising jurisdiction over non-parties, (8) by awarding 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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attorneys' fees and costs, (9) by entering and amending a writ of 

ne exeat, and (10) by failing to grant a recusal motion. We 

affirm the judgment of the trial court. 

 On appeal, we review the evidence and all reasonable 

inferences fairly deducible therefrom in the light most favorable 

to the party prevailing below. Pommerenke v. Pommerenke, 7 Va. 

App. 241, 244, 372 S.E.2d 630, 631 (1988). 

 The parties were married on November 29, 1975. They have 

two minor children. On February 2, 1996, Dr. Fox filed in the 

trial court a bill of complaint for divorce. On February 21, 

1996, Ms. Fox filed an answer and cross-bill. On April 9, 1997, 

the trial court dismissed Dr. Fox's bill of complaint because of 

his refusal to comply with discovery requests and to abide by the 

court's orders. The trial court granted Ms. Fox a divorce on the 

ground of cruelty. The final decree, inter alia: (1) awarded 

Ms. Fox custody of the parties' children; (2) continued a 

protective order prohibiting Dr. Fox from being in the vicinity 

or presence of Ms. Fox and the parties' children; (3) reserved 

jurisdiction to award Ms. Fox spousal support; (4) ordered Dr. 

Fox to pay child support of $7,050 per month; (5) awarded a lump 

sum monetary award to Ms. Fox in the amount of $1,450,000; and 

(6) found Dr. Fox in contempt for violating the trial court's 

orders to pay child support, spousal support, and mortgage and 

insurance payments on the marital residence. The trial court 

ordered Dr. Fox to pay Ms. Fox's attorneys' fees and costs. 
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 I. DUE PROCESS

 Dr. Fox raises numerous contentions that the trial court 

denied him due process of law under the Virginia and United 

States Constitutions. He argues that the trial court committed 

reversible error when it refused to allow his attorney: (1) to 

file or argue motions or pleadings; (2) to cross-examine 

witnesses; (3) to present evidence or proffer testimony; and (4) 

to make objections. 

 A. Background

 At a hearing conducted on March 26, 1996, the trial court 

ordered Dr. Fox to pay monthly child support in the amount of 

$2,149, monthly spousal support in the amount of $5,440, and the 

mortgage and insurance payments on the marital residence. These 

rulings were memorialized in an order entered on May 3, 1996. 

 On May 9, 1996, the trial court issued a rule against Dr. 

Fox to show cause why he should not be held in contempt for his 

failure to pay spousal support, pursuant to its March 26 rulings. 

 At a hearing conducted on May 31, 1996, the trial court 

ordered Dr. Fox to comply with Ms. Fox's requests for discovery. 

 That ruling was memorialized in an order entered on June 3, 

1996. On July 19, 1996, the trial court ordered Dr. Fox to 

provide Ms. Fox with an accounting of the parties' children's 

trusts by July 22, 1996. The trial court also ordered Dr. Fox to 

respond to Ms. Fox's request for documents by August 5, 1996. 

Dr. Fox never produced these documents. 
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 On August 16, 1996, Ms. Fox testified that Dr. Fox had 

failed: (1) to pay spousal support, (2) to provide an accounting 

of the parties' children's trusts, (3) to produce documents 

pursuant to discovery, and (4) to pay attorneys' fees, as ordered 

by the trial court. The trial court ordered "[t]hat Kenneth Fox 

present himself on the next court date for the purpose of having 

Kenneth Fox explain to the Court why he should not be 

incarcerated for his failure to pay spousal support as ordered." 

 Dr. Fox failed to appear. 

 On August 27, 1996, the trial court issued a rule against 

Dr. Fox to show cause why he should not be held in contempt for 

violating the orders of the trial court and ordered him to appear 

in person before the trial court on September 6, 1996. Dr. Fox 

did not appear. 

 On September 6, 1996, the trial court entered an order 

providing that Dr. Fox "shall not file any motions or pleadings 

in this Court until such time as he personally appears before 

this Court." The trial court issued an alias rule against Dr. 

Fox to appear before the trial court on September 20, 1996, to 

show cause why he should not be held in contempt for violating 

the trial court's orders. Because Dr. Fox did not appear, the 

trial court did not permit Dr. Fox's counsel to cross-examine a 

witness. However, the trial court permitted Dr. Fox's counsel to 

offer argument and to state his objections to the orders. 

 Because Dr. Fox did not appear on September 20, 1996, the 
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trial court issued a second alias rule to show cause against Dr. 

Fox, ordering him to appear on October 4, 1996. Counsel for Dr. 

Fox objected and noted his exception to this order. 

 The October 4, 1996 hearing was continued to October 10, 

1996. Dr. Fox did not appear. At that hearing, the trial court 

granted custody of the parties' children to Ms. Fox, enjoined Dr. 

Fox from sending correspondence to the children at their school, 

and extended a protective order originally issued by the juvenile 

and domestic relations court. In response to Dr. Fox's counsel's 

attempt to file certain discovery documents, the following 

conversation ensued: 

 THE COURT: Dr. Fox has a history of utter 

total disrespect and contempt for this Court 

and its orders. That's why this Court took 

the position that he could not - because of 

his track record, he could not file anything 

until he came before this Court and answered, 

in person, as to why he did or didn't do the 

things that are alleged that have been the 

basis for this Court's order and the rule to 

show cause. 

* * * * * * * 

 Dr. Fox is getting you to do the things that 

he can't do. It's a classic end run. Why 

doesn't Dr. Fox show up? 

 [DR. FOX'S COUNSEL]: Well, I have told Dr. 

Fox that he has an obligation to appear. 
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 On November 1, 1996, the trial court suspended Dr. Fox's 

continuing obligation to pay spousal support and increased child 

support by a like amount, to $7,589. The trial court issued a 

capias for Dr. Fox to show cause why he should not be held in 

contempt for his refusal to comply with the trial court's orders. 

 By its order of October 10, 1996, the trial court set 

November 4, 1996, as the date for the deposition of Dr. Fox and 

for the production of documents. On November 4, 1996, neither 

Dr. Fox nor his counsel appeared, and no documents were produced. 

 On November 15, 1996, the trial court granted Ms. Fox's 

motion for judgment in the amount of $24,979 for spousal support 

arrearages for the period between June 1, 1996 and October 18, 

1996. Pursuant to its ruling at the November 1, 1996 hearing, 

the trial court also entered an order requiring The Scudder Funds 

and Signet Bank to provide statements indicating any financial 

assets held in trust for the parties' children. Counsel for Dr. 

Fox stated their objections at this hearing and noted their 

exceptions to the orders. 

 On February 7, 1997, the trial court conducted a hearing on 

Ms. Fox's motion for a writ of ne exeat. Dr. Fox did not appear, 

and his counsel was not permitted to participate. The trial 

court granted the writ, finding that sufficient cause existed to 

restrain the departure of Dr. Fox from the trial court's 

jurisdiction. 

 On March 7, 1997, March 21, 1997 and April 5, 1997, the 
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trial court issued orders requesting information from Dr. Fox and 

non-parties concerning the identification and valuation of 

marital property. 

 On April 7, 1997, the trial court conducted an ore tenus

hearing on the matter of the parties' divorce. Because Dr. Fox 

failed to appear, his counsel was not permitted to participate in 

the proceedings. Five witnesses, including Ms. Fox, presented 

testimony on the grounds for divorce. By agreement of counsel, 

the trial court heard testimony by proffer on the nature, 

identity and value of the marital assets. 

 On April 9, 1997, Ms. Fox mailed and sent by facsimile to 

all counsel of record a proposed "Findings of Fact, Conclusions 

of Law, Judgment of Absolute Divorce and Monetary Award." The 

trial court entered the final decree of divorce that day. 

 B. 

 Dr. Fox contends that the trial court unconstitutionally 

denied him due process. U. S. Const. amends. V, XIV; Va. Const. 

art. I, § 11. After reviewing the record, we hold that the trial 

court's imposition of the non-participation sanction against Dr. 

Fox comports with fundamental fairness and is consistent with due 

process of law. 

 "Notice and opportunity to be heard are fundamental 

requirements of due process of law." Lockhart v. Baxter, 12 Va. 

App. 600, 604, 405 S.E.2d 434, 437 (1991). Where a party has the 

opportunity to present testimony, but chooses not to do so, there 
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is no denial of due process. Venable v. Venable, 2 Va. App. 178, 

182, 342 S.E.2d 646, 649 (1986). 

 We find no error in the trial court's requiring Dr. Fox to 

appear personally prior to permitting him to proceed further. 

Dr. Fox asks for relief incompatible with justice. He seeks to 

wield the trial court's sword and shield to prosecute his claims, 

while simultaneously engaging in a pattern of contumacious 

behavior that both insults the dignity of the trial court and 

deprives Ms. Fox of her opportunity to fully and effectively 

pursue the litigation. 

 Courts are invested with the power, and 

charged with the duty, of enforcing their 

decrees. Such decrees are the mandates of 

the law, and courts must have the power of 

enforcing them, if organized society is to be 

maintained. 

Branch v. Branch, 144 Va. 244, 251-52, 132 S.E. 303, 305-06 

(1926). 

 The trial court did not prevent Dr. Fox from cross-examining 

witnesses, presenting evidence, making objections, or from 

arguing and filing motions, pleadings and discovery. He was 

afforded ample notice and opportunity to do all of these things. 

See Blinder, Robinson & Co., Inc. v. State Corp. Comm'n, 227 Va. 

24, 313 S.E.2d 652 (1984). Instead, he deliberately and 

willfully elected to ignore the trial court's repeated commands 

that he answer for his refusal to pay support and that he comply 

with discovery orders. Thus, he elected not to participate in 

the proceedings. 
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 Dr. Fox held the proverbial keys for his "release" from the 

sanction of the trial court. That he chose not to avail himself 

of the means for his release does not vindicate his claim on 

appeal that the results were not to his liking. See Rule 

4:12(b)(2) (sanctions for failing to make discovery); Woodbury v. 

Courtney, 239 Va. 651, 654, 391 S.E.2d 293, 295 (1990) (trial 

court has broad discretion in determining what sanctions will be 

imposed upon litigant who fails to respond timely to discovery). 

 We find no denial of due process in the proceedings. 

 II. SERVICE OF PROCESS

 Dr. Fox contends that service upon him of the second alias 

rule to show cause was improper. Thus, he contends that the 

trial court erred in subsequently issuing a capias for him. 

 On August 27, 1996, the trial court issued a rule to show 

cause against Dr. Fox, and on September 6, 1996, it issued an 

alias rule. When Dr. Fox failed to appear in obedience to either 

rule, the trial court issued a second alias rule. A private 

server served the second alias rule on Dr. Fox personally in 

Maryland. Dr. Fox argues that this service was invalid because 

the certificate of return, while notarized, does not contain the 

server's signature. He also argues that service outside of the 

Commonwealth is insufficient to confer in personam jurisdiction 

in contempt proceedings. The trial court found that Dr. Fox had 

actual notice of the hearing noticed by the second alias rule, 

but failed to appear. 
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 We need not address the validity of the service of the 

second alias rule. Dr. Fox did not appear, and the trial court 

did not proceed upon that rule. The trial court issued a capias, 

commanding the sheriff to seize Dr. Fox, if he was found within 

the sheriff's bailiwick, and to bring him before the trial court 

to show cause why he should not be held in contempt for failing 

to comply with the trial court's orders. The capias was grounded 

upon Dr. Fox's refusal to comply with the trial court's orders. 

It was not based upon the validity of the second alias rule. 

Accordingly, we find no error in the issuance of the capias. 

 III. CHILD SUPPORT

 Dr. Fox contends that the trial court abused its discretion 

in deviating from the presumptive guideline amounts specified in 

Code § 20-108.2 in determining pendente lite and permanent child 

support. 

 "Code § 20-107.2(2) vests discretion in 

the trial court in awarding child support and 

such awards will not be reversed on appeal 

unless plainly wrong or unsupported by the 

evidence." A rebuttable presumption exists 

that the amount derived from the guidelines, 

Code § 20-108.2, is correct. Code 

§ 20-108.1(B). "Once the presumptive amount 

is determined, the trial court may deviate 

. . . if such deviation is justified by 

factors recognized in Code §§ 20-108.1 and 

20-107.2." "Whenever a child support award 

varies from the guidelines, Code 

§ 20-108.2(A) requires the trial court to 

make written findings of fact . . . 

explaining why one or more of these [Code 

§§ 20-108.1 and 20-107.2] factors would make 

it 'unjust and inappropriate' to apply the 

guidelines to the case." 
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Auman v. Auman, 21 Va. App. 275, 277, 464 S.E.2d 154, 155-56 

(1995) (citations omitted). 

 On May 3, 1996, the trial court awarded pendente lite child 

support at the level set forth in the statutory guidelines. The 

trial court noted at that time that a deviation would have been 

appropriate due to the standard of living established during the 

marriage and the earning capacity and resources of Dr. Fox. See

Code § 20-108.1(B)(10) and (11). On November 1, 1996, the trial 

court modified the child support award due to the financial 

hardship placed upon Ms. Fox and the parties' minor children as a 

result of Dr. Fox's continued refusal to pay spousal support. 

This modification conformed to the prior award and suspended 

payment of further spousal support. 

 In the final decree of divorce, the trial court held that 

Ms. Fox was entitled to spousal support, and reserved 

jurisdiction to make a future spousal support award. Pending 

award of spousal support, the trial court ordered Dr. Fox to pay 

$7,050 per month in child support. The trial court considered 

the statutory factors set forth in Code § 20-108.1(B), and 

concluded that application of the statutory guidelines would be 

"unjust and inappropriate" under the circumstances at that time. 

 We find no abuse of discretion, and affirm the determination 

of child support. 

 IV. SPOUSAL SUPPORT

 Dr. Fox contends that the trial court erred in setting the 
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pendente lite and permanent spousal support awards. He argues 

that the awards are excessive. 

 The trial court considered the evidence and all of the 

statutory factors in fashioning the support awards. Its findings 

are supported by the record. See Code § 20-107.1. We find no 

abuse of discretion, and affirm the awards. See Huger v. Huger, 

16 Va. App. 785, 791, 433 S.E.2d 255, 259 (1993). See also

Thomasson v. Thomasson, 225 Va. 394, 397 n.1, 302 S.E.2d 63, 65 

n.1 (1983) (permitting trial court to reserve power to modify 

spousal support). 
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 V. CUSTODY AND VISITATION

 Dr. Fox contends that the trial court erred in its custody 

and visitation determinations. 

 "In matters of custody, visitation, and related child care 

issues, the court's paramount concern is always the best 

interests of the child." Farley v. Farley, 9 Va. App. 326, 

327-28, 387 S.E.2d 794, 795 (1990). On review, "the 'decision of 

the trial judge is peculiarly entitled to respect for he saw the 

parties, heard the witnesses testify and was in closer touch with 

the situation than the [appellate] Court, which is limited to a 

review of the written record.'" Sutherland v. Sutherland, 14 Va. 

App. 42, 44, 414 S.E.2d 617, 618 (1992) (citation omitted). 

 The trial court saw the parties and heard the evidence. 

Having reviewed the record, we find that it supports the decision 

to award Ms. Fox custody of the parties' children and to deny 

visitation to Dr. Fox. 

 Dr. Fox contends also that the trial court erred in entering 

child visitation orders without the notice to and endorsement by 

his counsel and the guardian ad litem. 

 Rule 1:13 provides that: 

 Drafts of orders and decrees shall be 

endorsed by counsel of record, or reasonable 

notice of the time and place of presenting 

such drafts together with copies thereof 

shall be served by delivering or mailing to 

all counsel of record who have not endorsed 

them. Compliance with this rule . . . may be 

modified or dispensed with by the court in 

its discretion.
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(Emphasis added). 

 All counsel of record, including the guardian ad litem, were 

present at the trial. Counsel for Dr. Fox was not permitted to 

participate and the guardian ad litem declined the trial court's 

repeated offer to examine the witnesses. Counsel for Dr. Fox 

objected to his exclusion from participation and to the trial 

court's findings and rulings. At the conclusion of the trial, 

the trial court requested findings of facts and conclusions of 

law from Ms. Fox. Her counsel gave notice that the proposed 

findings and conclusions of law would be submitted forthwith. 

See State Hwy. Comm'r v. Easley, 215 Va. 197, 201, 207 S.E.2d 

870, 873 (1974) (noting that rule designed to protect parties 

without notice). 

 "All that remained to be done was the preparation and entry 

of the [decree] to end the case in the trial court." Davis v. 

Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 93 (1996). Ms. Fox's 

counsel sent a facsimile and mailed a copy of the proposed 

findings to all counsel of record. The trial court entered the 

final decree of divorce that same day. Following entry of the 

final decree, neither counsel for Dr. Fox nor the guardian ad

litem requested an opportunity to endorse the final decree. 

 We hold that, under the circumstances of this case, the 

trial court did not abuse its discretion in dispensing with the 

requirement that the final decree be endorsed by all counsel of 

record. Compare Smith v. Stanaway, 242 Va. 286, 289, 410 S.E.2d 
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610, 612 (1991), with Cofer v. Cofer, 205 Va. 834, 836, 140 

S.E.2d 663, 665 (1965) (reversing order entered without notice 

that adversely affected rights of infants). 

 VI. MONETARY AWARD OF MARITAL ASSETS

 Dr. Fox contends that the trial court abused its discretion 

in the determination and award of marital assets. Despite having 

presented us with a question on appeal, Dr. Fox has advanced no 

argument thereon. We will not construct an argument for him. 

Accordingly, we do not address this question. See Fitzgerald v. 

Bass, 6 Va. App. 38, 56 n.7, 366 S.E.2d 615, 625 n.7 (1988). 

 VII. JURISDICTION OVER NON-PARTIES

 Dr. Fox contends that the trial court erred in exercising 

subject matter jurisdiction over certain trusts established for 

the parties' children and over various other entities. 

 [T]he court, upon request of either party, 

shall determine the legal title as between 

the parties, and the ownership and value of 

all property, real or personal, tangible or 

intangible, of the parties . . . . 

Code § 20-107.3. 

 Virginia's statute "mandates" that trial 

courts determine the ownership and value of 

all real and personal property of the 

parties. But, consistent with established 

Virginia jurisprudence, the litigants have 

the burden to present evidence sufficient for 

the court to discharge its duty. 

* * * * * * * 

 Adequate discovery techniques are available 

to the parties to enable them to obtain 

evidence to identify, classify or evaluate 

marital or separate property. The court has 

available and should exercise adequate 
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sanctions to deal with the reluctant or 

recalcitrant party or witness who fails or 

refuses to disclose relevant evidence. 

Bowers v. Bowers, 4 Va. App. 610, 617-18, 359 S.E.2d 546, 550-51 

(1987) (citation omitted). 

 While Dr. Fox argues that the trial court lacked subject 

matter jurisdiction to identify and value assets held by him and 

by the parties' children, he provides us no authority for that 

proposition. Nor does he argue that the non-parties objected to 

participation. Because of Dr. Fox's obstreperous conduct in 

refusing to comply with discovery orders, the trial court 

properly sought the direct assistance of non-parties to enable it 

to discharge its duties under the statute. 

 Dr. Fox also appears to contend that the trial court erred 

in finding that various entities were, in fact, his alter egos. 

He advances no argument to support this contention, and we will 

construct none for him on appeal. 

 However, we note that: 

 "[W]hen a corporation will be regarded as the 

adjunct, creature, instrumentality, device, 

stooge, or dummy of another corporation is 

usually held to be a question of fact in each 

case. * * *; and courts will disregard the 

separate legal identities of the corporation 

only when one is used to defeat public 

convenience, justify wrongs, protect fraud or 

crime of the other." 

* * * * * * * 

 "Notwithstanding, when the facts justify it, 

the courts will look beyond the mere 

corporate entity to the persons who compose 

the corporation." 
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Lewis Trucking Corp. v. Commonwealth, 207 Va. 23, 31-32, 147 

S.E.2d 747, 753 (1966) (citations omitted). 

 The trial court found that Dr. Fox "embarked upon a scheme 

to defraud both [Ms. Fox] and the taxpayers of this jurisdiction 

through the use of a series of limited partnerships, trusts and 

corporations which in reality are simply an attempt by [Dr. Fox] 

to fraudulently hide marital assets and prevent their proper 

distribution." The record supports the trial court's 

determination that the various entities and Dr. Fox shared a 

unity of interest and ownership, such that their separate 

personalities no longer existed. See 18 Am. Jur. 2d Corporations

§ 45. See also 62B Am. Jur. 2d Process § 284 (noting the 

exception to the general rule that a corporation is subject to 

service of process where the corporation served is the alter ego 

of the defendant). 

 We affirm the trial court. 

 VIII. AWARD OF ATTORNEYS' FEES AND COSTS

 Dr. Fox contends that the trial court abused its discretion 

in the award of attorneys' fees and costs. 

 "An award of attorney's fees is a matter submitted to the 

trial court's sound discretion and is reviewable on appeal only 

for an abuse of discretion." Graves v. Graves, 4 Va. App. 326, 

333, 357 S.E.2d 554, 558 (1987). 

 On April 30, 1997, the trial court entered judgment against 

Dr. Fox for Ms. Fox's attorneys' fees and costs in the amount of 
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$203,260.77. The trial court found that: 

 [B]ecause of [Dr. Fox's] extreme behavior and 

continuing direct contempt of the Court's 

orders, and [Dr. Fox's] nearly complete lack 

of cooperation in providing discovery, 

including his intentional and actual efforts 

to impede discovery, [Ms. Fox] has been 

required to expend extraordinary and 

excessive amounts of money on attorneys' fees 

and costs . . . ." 

Under the circumstances, the award was appropriate. We find no 

abuse of discretion. 

 IX. WRIT OF NE EXEAT

 Dr. Fox contends that the evidence does not support a 

finding that he was in Virginia when the trial court entered and 

subsequently amended the writ of ne exeat. He argues that the 

writ cannot restrain the departure of one who has already left. 

 A writ of ne exeat: 

 [F]orbids the person to whom it is addressed 

to leave the country, the state, or the 

jurisdiction of the court. Available in some 

cases to keep a defendant within the reach of 

the court's process, where the ends of 

justice would be frustrated if he should 

escape from the jurisdiction. 

Black's Law Dictionary 929 (5th ed. 1979). The writ is a 

proceeding in equity to secure bail. It may not be granted 

unless: (1) a debt for a sum certain is due; (2) it is an 

equitable demand without recourse at law, except as "in account, 

and some other cases of concurrent jurisdiction"; and (3) the 

person to whom the writ is addressed is about to "quit[] the 

Country." Rhodes v. Cousins, 27 Va. (6 Rand.) 657, 659 (1828). 
- 19 - 

 Ms. Fox sought the writ and submitted an affidavit 

incorporating by reference the statements in her petition. She 

averred that Dr. Fox had not paid certain child and spousal 

support obligations and that the parties' children's trust 

account funds ($341,253.90) had been removed in contravention of 

a prior order. She also averred that she believed that Dr. Fox 

was preparing to relocate to the Bahamas. She testified as to 

the basis for that belief. 

 After a hearing on the petition, the trial court entered the 

writ, directing the sheriff to restrain Dr. Fox's departure from 

Virginia, with bail set at $400,000. In the final decree, the 

trial court increased the amount of bail to $1,000,000. 

 The evidence, viewed in the light most favorable to Ms. Fox, 

supported the finding that Dr. Fox was preparing to leave the 

United States permanently. However, the record does not reflect 

that at the time the trial court issued the writ, Dr. Fox was 

present in Virginia. 

 Because of its potential to restrict a person's liberty, the 

writ of ne exeat merits close judicial scrutiny. Execution of 

the writ is akin to a prohibitory injunction. It restrains the 

departure of a person from the jurisdiction of the court so as to 

prevent irreparable harm. Here, the writ sought to secure 

performance of the trial court's decrees and to ensure that Dr. 

Fox would provide for his former wife and their minor children. 

 The circumstances in this case support the trial court's 
- 20 - 

amendment of the writ in the final decree of divorce. Dr. Fox 

alleges no prejudice. At no time has he been forced to give bail 

to secure his liberty. He has not moved the trial court to quash 

the writ. The amendment serves merely to balance the equities 

and to offer Ms. Fox and the parties' children a mechanism by 

which they may seek to bar Dr. Fox's escape from Virginia upon a 

subsequent return. We find no abuse of discretion in increasing 

the amount of bail. 

 X. MOTION TO RECUSE

 Dr. Fox contends that the trial judge erred in declining to 

recuse himself. We disagree. 

 While stating that Dr. Fox had very low credibility, the 

trial court told Dr Fox's counsel that: 

 Every time he comes into this courtroom . . . 

as far as I'm concerned, Dr. Fox starts off 

with a clean slate, but everything that I 

have seen about Dr. Fox at this point is 

totally unworthy of belief. 

In discussing experts, the trial court stated: 

 Well, Dr. Fox can hire anyone that he wants. 

 And I will give due consideration to the 

credentials and testimony of any expert that 

he brings in here. 

 I will not -- I will not prejudge 

anyone, but I do reserve the right to call 

them as I see them after I hear their 

credentials and after I hear them testify. 

 "It is within the trial judge's discretion to determine 

whether he harbors bias or prejudice which will impair his 

ability to give the defendant a fair trial." Terrell v. 

Commonwealth, 12 Va. App. 285, 293, 403 S.E.2d 387, 391 (1991) 
- 21 - 

(citation omitted). Having reviewed the record, we cannot say 

that the trial judge abused his discretion in declining to recuse 

himself. 

 Affirmed.