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 Process4

 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 

- 19 - 
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, 

- 20 - 
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. 

- 45 - 
C. Due Process11

 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 

- 46 - 
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 crossexamination 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. 

- 47 - 
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 

- 48 - 
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 

- 49 - 
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. 

 * * * * * * * 

- 50 - 
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 

- 51 - 
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. 

- 58 -