                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


KATHRYN D. VENIE
                                               MEMORANDUM OPINION *
v.   Record No. 0342-98-4                          PER CURIAM
                                                SEPTEMBER 1, 1998
DAVID A. VENIE


           FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                       Richard B. Potter, Judge

           (Robert B. Machen, on briefs), for appellant.
           (Raymond J. Morley; Pfitzner & Morley, on
           brief), for appellee.



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

court finding her in contempt, incorporating an agreement signed

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

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

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

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

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

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

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

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

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

its discretion by incorporating the property settlement

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

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
spousal support; and (8) erred by prohibiting wife from

petitioning the Defense Finance and Accounting Service (DFAS) for

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

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

without merit.   Accordingly, we summarily affirm the decision of

the trial court.    See Rule 5A:27.

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

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

transcripts and exhibits.   No transcripts were filed for the

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

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

parties' summaries of hearing testimony not preserved in any form

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

                        Settlement Agreement

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

first her contention that the trial court erred by incorporating

into the final decree a property settlement agreement dated March

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

husband's counsel fraudulently substituted twenty-one different

provisions after the parties reached agreement but before the

written agreement was initialed, signed, and presented to the

trial court.   Wife raised this allegation more than six months

after the agreement was signed.

     On appeal, we view the evidence and reasonable inferences in

the light most favorable to husband as the party prevailing



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below.   See Martin v. Pittsylvania County Dep't of Social Servs.,

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

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

to great weight and will not be disturbed on appeal unless

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

contesting the contract must prove the allegations by clear and

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

S.E.2d 74, 77 (1989).
     As set out in its pendente lite decree entered January 13,

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

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

connection with the signing of the settlement agreement.     No

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

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

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

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

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

signed agreement to be valid.   The trial court ordered the

parties to comply with its terms.   The record contains the

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

motions for reconsideration.    The trial court clearly rejected

wife's allegations of fraud.

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

reviewed the agreement prior to its signing.   The parties

initialed each page, initialed several hand-written



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modifications, and signed the agreement.    Wife's counsel was

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

copy of the agreement immediately after its execution, and

subsequently used the executed agreement in her attempts to

enforce its provisions.

     The trial court's factual findings are supported by credible

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

wife failed to prove by clear and convincing evidence that the

agreement was tainted by fraud.
     Having found wife's allegations of fraud unsupported by the

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

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

                             Rule 1:13

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

of record unless notice of its presentation is given to all

counsel of record or unless the endorsement is modified or

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

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

decree that fails to comply with Rule 1:13 is void." Id.
          However, the mere fact that an order may have
          been entered without endorsement of counsel
          of record does not automatically render it
          void. The last sentence of Rule 1:13
          authorizes the trial court in its discretion
          to modify or dispense with the requirement of
          endorsement of counsel. Thus, we have held
          that endorsement of counsel is unnecessary
          under circumstances where "counsel are
          present in court when the ruling is made
          orally and are fully aware of the court's
          decision; preparation and entry of an order
          in standard form is all that remains to be



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          done to end the case in the trial court."


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

(citation omitted).

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

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

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

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

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

transcripts from the hearings held on December 16, 1997 or

January 9, 1998.
     Despite these omissions in the record, it is clear from the

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

because she was present in court with counsel during the December

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

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

referred to specific rulings made at the hearing.   These same

rulings were contained in the final decree.    Therefore, because

Rule 1:13 "is designed to protect parties without notice," Davis,
251 Va. at 147, 466 S.E.2d at 93, we cannot say that the trial

court abused its discretion by waiving endorsement by wife's

counsel and entering the final decree.

                      Modification of Decree

     Wife contends the trial court erred when it modified the

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

provides that "[a]ll final judgments, orders, and decrees,



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irrespective of terms of court, shall remain under the control of

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

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

However, Code § 20-107.3(K) provides, in pertinent part, that
          [t]he court shall have the continuing
          authority and jurisdiction to make any
          additional orders necessary to effectuate and
          enforce any order entered pursuant to this
          section, including the authority to:
          1. Order a date certain for transfer or
          division of any jointly owned property under
          subsection C or payment of any monetary award
          under subsection D;
          2. Punish as contempt of court any willful
          failure of a party to comply with the
          provisions of any order made by the court
          under this section . . . .


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

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

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

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

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

her failure to produce the photographs for copying as ordered in

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

wife was to produce the photographs.

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

The court retained jurisdiction to enforce its final decree.    Its

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

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

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

which wife could produce photographs to comply with the final



                               - 6 -
decree.   Ensuring compliance with its previously-entered order

was within the court's authority.

                     Deposing Husband's Counsel

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

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

to a deposition.   Testifying as a witness effectively removes an

attorney from assisting his client.     See generally Browning v.

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

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

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

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

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

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

     Wife presented evidence supporting her allegations that

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

minute.   Husband produced evidence that no switch occurred.

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

allegations that he had switched portions of the parties'

settlement agreement.   The trial court found that wife's

allegations were not supported by the evidence.    The trial court

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

depose husband's attorney.

            Sale of Marital Home and Findings of Contempt

     We consider jointly wife's contentions that the trial court

erred when it ordered husband to sell the marital home, found



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wife in contempt for interfering with husband's attempts to sell

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

the mortgage.   We find no error.

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

party in contempt for acting in bad faith or for willful

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

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

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

element of damages assessed against the defendant found guilty of

civil contempt, the attorneys' fees incurred in the investigation

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

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

(1975) (citation omitted).

     Under the terms of the parties' agreement, wife was

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

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

decree which incorporated the agreement also included the

following provision:
          ADJUDGED, ORDERED and DECREED that . . .
          [husband] obtain a real estate agent to list
          the marital property . . . on or before
          January 30, 1997. [Wife] . . . is ordered to
          make the property available and assist in the
          marketing and sale of same. Any contract and
          sale of the aforesaid property is subject to
          the approval of the Court; . . . .


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

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

trial court found (1) that wife was in contempt for failing to


                                - 8 -
pay one-half the mortgage payments as ordered in the pendente

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

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

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

going out and obtaining a Trespass Notice against [husband]

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

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

company's attorney's fees, and to pay $500 in attorney's fees.
     Husband's evidence established that wife failed to comply

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

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

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

                           Spousal Support

     Under the parties' settlement agreement, wife agreed to

receive monthly payments from husband's pension in lieu of

spousal support, while reserving her right to seek spousal

support under certain conditions.   At the time of the final

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

court had no authority to award spousal support contrary to the

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

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

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

with the terms of the parties' agreement.

                  Prohibition on Contacting DFAS
     Wife contends that the trial court erred when it ordered




                                - 9 -
wife not to file with DFAS for direct pension allotment until May

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

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

record indicates that this issue was raised before the trial

court.

        The Court of Appeals will not consider an argument on appeal

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

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

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

consideration of this question on appeal.    Moreover, the record

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

justice exceptions to Rule 5A:18.
        Accordingly, the decision of the circuit court is summarily

affirmed.

                                                           Affirmed.




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