38 Va. App. ___ 2854004, ___ S.E.2d ___ (2002)
Comment of Olivier Denier Long, Esq. —
Would this case have been decided differently if Husband’s ownership interest in the business that employed him had been less than 50%?
M. Morgan Cherry & Associates, Ltd. v. Cherry, 38 Va. App. ___ 2854004, ___ S.E.2d ___ (2002)
IN THE COURT OF APPEALS OF VIRGINIA
ARGUED AT RICHMOND, VIRGINIA
M. MORGAN CHERRY & ASSOCIATES, LTD. v. NATALIE W. CHERRY
Record No. 2854-00-4
Decided: August 20, 2002
Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder, Bray, Annunziata,
Bumgardner, Frank, Humphreys, Clements and Agee
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.
UPON A REHEARING EN BANC
ANNUNZIATA, J. — This matter comes before the Court on a rehearing en banc from a decision of a divided panel rendered January 22, 2002 [37 Va. App. 329, 558 S.E.2d 534 (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.
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 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 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 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 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.
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 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.
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. 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 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 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 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 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.
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 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 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.
* * * * * *
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 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 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 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 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, 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 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 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 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 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.
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.
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.
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 references to it in support of her argument.
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.
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.