COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

KATHRYN D. VENIE 

 MEMORANDUM OPINION*

v. Record No. 0342-98-4 PER CURIAM 

 SEPTEMBER 1, 1998 

DAVID A. VENIE 

 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Richard B. Potter, Judge 

 (Robert B. Machen, on briefs), for appellant. 

 (Raymond J. Morley; Pfitzner & Morley, on 

brief), for appellee. 

 Kathryn D. Venie (wife) appeals the decision of the circuit 

court finding her in contempt, incorporating an agreement signed 

by wife and David A. Venie (husband), and deciding other issues. 

 Wife contends that the trial court (1) erred when it entered the 

final decree in violation of Rule 1:13; (2) erred when it entered 

orders modifying the final decree more than twenty-one days after 

its entry; (3) erred when it refused to permit wife's new counsel 

to depose husband's counsel; (4) erred when it ordered husband to 

sell the marital home and found wife in contempt for failing to 

cooperate; (5) abused its discretion when it held wife in 

contempt for nonpayment of one-half of the mortgage; (6) abused 

its discretion by incorporating the property settlement 

agreement; (7) abused its discretion by refusing to award wife 

 

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

designated for publication. 
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spousal support; and (8) erred by prohibiting wife from 

petitioning the Defense Finance and Accounting Service (DFAS) for 

her share of the military retired pay. Upon reviewing the record 

and briefs of the parties, we conclude that this appeal is 

without merit. Accordingly, we summarily affirm the decision of 

the trial court. See Rule 5A:27. 

 The record consists of the court's file, including the 

written statement of facts signed by the trial judge, and several 

transcripts and exhibits. No transcripts were filed for the 

hearings held on December 30, 1996, December 16, 1997, or January 

9, 1998. We do not consider as part of the record on appeal the 

parties' summaries of hearing testimony not preserved in any form 

for review. See Rules 5A:7 and 5A:8. 

Settlement Agreement

 Because it is a pivotal issue in wife's appeal, we address 

first her contention that the trial court erred by incorporating 

into the final decree a property settlement agreement dated March 

27, 1996, and signed by the parties. Wife contended that 

husband's counsel fraudulently substituted twenty-one different 

provisions after the parties reached agreement but before the 

written agreement was initialed, signed, and presented to the 

trial court. Wife raised this allegation more than six months 

after the agreement was signed. 

 On appeal, we view the evidence and reasonable inferences in 

the light most favorable to husband as the party prevailing 
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below. See Martin v. Pittsylvania County Dep't of Social Servs., 

3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). "Where, as here, 

the court hears the evidence ore tenus, its finding is entitled 

to great weight and will not be disturbed on appeal unless 

plainly wrong or without evidence to support it." Id. "The one 

contesting the contract must prove the allegations by clear and 

convincing evidence." Derby v. Derby, 8 Va. App. 19, 26, 378 

S.E.2d 74, 77 (1989). 

 As set out in its pendente lite decree entered January 13, 

1997, as well as in the written statement of facts, the trial 

court found that wife failed to prove her allegations of fraud in 

connection with the signing of the settlement agreement. No 

transcript of the December 30, 1996 hearing on this issue appears 

in the record. However, in the January 13, 1997 pendente lite

decree, the trial court rejected wife's allegations of fraud, 

found that "[t]here is no evidence of any fraud in the 

procurement and/or inducement" of the agreement, and found the 

signed agreement to be valid. The trial court ordered the 

parties to comply with its terms. The record contains the 

transcript of a January 31, 1997 hearing on wife's various 

motions for reconsideration. The trial court clearly rejected 

wife's allegations of fraud. 

 As noted by the trial court in its factual findings, wife 

reviewed the agreement prior to its signing. The parties 

initialed each page, initialed several hand-written 
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modifications, and signed the agreement. Wife's counsel was 

present prior to and at the time of signing. Wife received a 

copy of the agreement immediately after its execution, and 

subsequently used the executed agreement in her attempts to 

enforce its provisions. 

 The trial court's factual findings are supported by credible 

evidence. Therefore, we affirm the trial court's conclusion that 

wife failed to prove by clear and convincing evidence that the 

agreement was tainted by fraud. 

 Having found wife's allegations of fraud unsupported by the 

evidence, the trial court did not err in incorporating the signed 

agreement into its decree. See Code § 20-109.1. 

Rule 1:13

 "A draft of an order or decree must be endorsed by counsel 

of record unless notice of its presentation is given to all 

counsel of record or unless the endorsement is modified or 

dispensed with by the court." Westerberg v. Westerberg, 9 Va. 

App. 248, 250, 386 S.E.2d 115, 116 (1989). See Rule 1:13. "A 

decree that fails to comply with Rule 1:13 is void." Id.

 However, the mere fact that an order may have 

been entered without endorsement of counsel 

of record does not automatically render it 

void. The last sentence of Rule 1:13 

authorizes the trial court in its discretion 

to modify or dispense with the requirement of 

endorsement of counsel. Thus, we have held 

that endorsement of counsel is unnecessary 

under circumstances where "counsel are 

present in court when the ruling is made 

orally and are fully aware of the court's 

decision; preparation and entry of an order 

in standard form is all that remains to be 
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done to end the case in the trial court." 

Davis v. Mullins, 251 Va. 141, 147-48, 466 S.E.2d 90, 93 (1996) 

(citation omitted). 

 The final decree of divorce was entered on January 9, 1998. 

 The trial judge and husband's counsel endorsed the decree. The 

notation "no appearance on 1/9" appears on the endorsement line 

for wife's counsel. The record contains no notice concerning the 

presentation of the order on January 9, 1998. There are no 

transcripts from the hearings held on December 16, 1997 or 

January 9, 1998. 

 Despite these omissions in the record, it is clear from the 

record as a whole that wife had notice of the court's rulings 

because she was present in court with counsel during the December 

16, 1997 hearing when the court issued its decision. Wife's ex 

parte letter to the trial judge, dated December 18, 1997, 

referred to specific rulings made at the hearing. These same 

rulings were contained in the final decree. Therefore, because 

Rule 1:13 "is designed to protect parties without notice," Davis, 

251 Va. at 147, 466 S.E.2d at 93, we cannot say that the trial 

court abused its discretion by waiving endorsement by wife's 

counsel and entering the final decree. 

Modification of Decree

 Wife contends the trial court erred when it modified the 

final decree more than twenty-one days after entry. Rule 1:1 

provides that "[a]ll final judgments, orders, and decrees, 
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irrespective of terms of court, shall remain under the control of 

the trial court and subject to be modified, vacated, or suspended 

for twenty-one days after the date of entry, and no longer." 

However, Code § 20-107.3(K) provides, in pertinent part, that 

 [t]he court shall have the continuing 

authority and jurisdiction to make any 

additional orders necessary to effectuate and 

enforce any order entered pursuant to this 

section, including the authority to: 

 1. Order a date certain for transfer or 

division of any jointly owned property under 

subsection C or payment of any monetary award 

under subsection D; 

 2. Punish as contempt of court any willful 

failure of a party to comply with the 

provisions of any order made by the court 

under this section . . . . 

 By motion filed on March 13, 1998, husband sought a Rule to 

Show Cause to enforce the final decree as to wife's payment of 

attorney's fees and her production of photographs. Upon evidence 

that wife filed for bankruptcy, the trial court stayed the issue 

of attorney's fees. The trial court found wife in contempt for 

her failure to produce the photographs for copying as ordered in 

the final decree. The court then modified the procedure by which 

wife was to produce the photographs. 

 We do not find that the court's order violated Rule 1:1. 

The court retained jurisdiction to enforce its final decree. Its 

"modification" did not make any substantive changes in the final 

decree. Cf. Caudle v. Caudle, 18 Va. App. 795, 447 S.E.2d 247 

(1994). The court merely authorized a different schedule under 

which wife could produce photographs to comply with the final 
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decree. Ensuring compliance with its previously-entered order 

was within the court's authority. 

Deposing Husband's Counsel

 We find no error in the trial court's decision denying 

wife's motion to order husband's counsel to withdraw and submit 

to a deposition. Testifying as a witness effectively removes an 

attorney from assisting his client. See generally Browning v. 

Commonwealth, 19 Va. App. 295, 298-99, 452 S.E.2d 360, 361-62 

(1994). "The circumstances are rare indeed where any lawyer may 

properly testify in a case in which he is participating as an 

advocate. Decisions of this kind must be left to the sound 

discretion of the trial court." Bennett v. Commonwealth, 236 Va. 

448, 464, 374 S.E.2d 303, 313 (1988). 

 Wife presented evidence supporting her allegations that 

husband's counsel switched pages in the agreement at the last 

minute. Husband produced evidence that no switch occurred. 

While not deposed, husband's counsel repeatedly denied wife's 

allegations that he had switched portions of the parties' 

settlement agreement. The trial court found that wife's 

allegations were not supported by the evidence. The trial court 

did not abuse its discretion when it denied wife's motion to 

depose husband's attorney. 

Sale of Marital Home and Findings of Contempt

 We consider jointly wife's contentions that the trial court 

erred when it ordered husband to sell the marital home, found 
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wife in contempt for interfering with husband's attempts to sell 

the home, and found wife in contempt for failing to pay one-half 

the mortgage. We find no error. 

 "A trial court 'has the authority to hold [an] offending 

party in contempt for acting in bad faith or for willful 

disobedience of its order.'" Alexander v. Alexander, 12 Va. App. 

691, 696, 406 S.E.2d 666, 669 (1991) (citation omitted). "It is 

within the discretion of the trial court to include, as an 

element of damages assessed against the defendant found guilty of 

civil contempt, the attorneys' fees incurred in the investigation 

and prosecution of the contempt proceedings." Arvin, Inc. v. 

Sony Corp. of America, 215 Va. 704, 706, 213 S.E.2d 753, 755 

(1975) (citation omitted). 

 Under the terms of the parties' agreement, wife was 

obligated to pay one-half the mortgage payment if the home was 

not sold by August 1, 1996. The January 13, 1997 pendente lite

decree which incorporated the agreement also included the 

following provision: 

 ADJUDGED, ORDERED and DECREED that . . . 

[husband] obtain a real estate agent to list 

the marital property . . . on or before 

January 30, 1997. [Wife] . . . is ordered to 

make the property available and assist in the 

marketing and sale of same. Any contract and 

sale of the aforesaid property is subject to 

the approval of the Court; . . . . 

Following a hearing on January 31, 1997, during which husband 

testified to his attempts to pay his half of the mortgage, the 

trial court found (1) that wife was in contempt for failing to 
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pay one-half the mortgage payments as ordered in the pendente

lite decree; and (2) "[t]hat [wife] . . . has interfered with the 

[husband's] . . . attempts to list and sell the marital home by 

not signing the listing agreement, by not cooperating, and by 

going out and obtaining a Trespass Notice against [husband] 

. . . ." The trial court ordered wife to pay $5,920.70 as her 

portion of the mortgage payments, plus late fees and the mortgage 

company's attorney's fees, and to pay $500 in attorney's fees. 

 Husband's evidence established that wife failed to comply 

with the court's orders. Therefore, the trial court's decision 

is supported by the evidence. We find no abuse of discretion in 

the trial court's decision to hold wife in contempt. 

Spousal Support

 Under the parties' settlement agreement, wife agreed to 

receive monthly payments from husband's pension in lieu of 

spousal support, while reserving her right to seek spousal 

support under certain conditions. At the time of the final 

decree, wife's payment was $866. Under Code § 20-109, the trial 

court had no authority to award spousal support contrary to the 

terms of the parties' agreement. Accordingly, we find no error 

in the trial court's decision to award wife no spousal support, 

but to reserve her right to support in the future in accordance 

with the terms of the parties' agreement. 

Prohibition on Contacting DFAS

 Wife contends that the trial court erred when it ordered 
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wife not to file with DFAS for direct pension allotment until May 

1999. Wife's citations to the record where this issue was 

purportedly preserved do not refer to this issue. Nothing in the 

record indicates that this issue was raised before the trial 

court. 

 The Court of Appeals will not consider an argument on appeal 

which was not presented to the trial court. See Jacques v. 

Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) 

(citing Rule 5A:18). Accordingly, Rule 5A:18 bars our 

consideration of this question on appeal. Moreover, the record 

does not reflect any reason to invoke the good cause or ends of 

justice exceptions to Rule 5A:18. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.